Why feds keep losing their furlough appeals

Wednesday - 6/4/2014, 3:04pm EDT

Hundreds of thousands of federal employees were furloughed last year when the across-the-board sequestration cuts went into effect and agencies were faced with tough spending decisions.

More than 30,000 furloughed feds filed appeals with the Merit Systems Protection Board, challenging their agency's decisions to force them to take unpaid days off.

But the number of employees who filed appeals that have had their agency's furlough decision reversed by MSPB is much smaller: Zero.

So far, all of the initial decisions stemming from MSPB's gigantic caseload of furlough appeals have "affirmed the furlough action taken by the agency," according to MSPB's annual report for fiscal 2013 released last week.

While the agency continues to hear cases and will decide each on its merits, there doesn't appear to be much hope that furloughed feds' appeal prospects will improve.

That's because the legal standard developed by the board and its panels of adjudicators significantly restricts the grounds under which employees can question furlough decisions made by their agencies.

Employees, MSPB can't challenge agency spending decisions

Furlough appeals by the numbers
"The sheer number of furlough appeals resulting from federal sequestration was unprecedented."

32,400 — furlough appeals filed by feds in 2013

6,200 — number of all appeals filed by employees in average year

724 — number of cases after MSPB consolidated similar appeals

2,000 — total number of cases that have been processed — either dismissed, settled or adjudicated

40% — Percentage of cases dismissed

100% Percentage of cases adjudicated on the merits that affirmed the agency's decision

Source: Merit Systems Protection Board annual report.

In a September 2013 ruling involving an Internal Revenue Service employee who challenged her furlough order, the board said an agency must show that the decision to furlough employees "was a reasonable management solution to the financial restrictions placed on the agency" and that the furloughs were applied "uniformly and consistently."

In that regard, it generally follows MSPB's standard for appeals of layoffs, known as reductions-in-force.

But that leaves a broad range of agency management and spending decisions off limits for MSPB review.

The board's standard of review — for both RIFs and furloughs — "does not encompass agency spending decisions per se," the agency's annual report summarized. "Such matters belong to the judgment of agency managers, who are in the best position to decide what allocation of funding will best allow the agency to accomplish its mission."

Is MSPB just 'rubber stamping' agency decisions?

MSPB can only decide whether an agency uniformly and consistently applied the furloughs, such as determining whether an agency used a furlough to target an employee for personal reasons or sought to exempt certain employees "without legitimate management reasons," according to the September 2013 decision.

In the case at hand, the IRS employee wanted her agency to turn over documents explaining its spending and hiring decisions during the time employees were furloughed, in a bid to show the agency could have foregone furloughs if leaders had prioritized spending differently.

That's been a common theme.

"One of the issues that keeps coming up is how the agency spends its money," MSPB Chairman Susan Tsui Grundmann told Federal News Radio last month.

But that question falls outside the purview of the board's authority, MSPB maintains. The board denied most of the IRS employee's information requests, saying it wouldn't second guess agency spending decisions.

The board's decision — and, more broadly, its rationale for deciding furlough cases — was not unanimous, however.

Board Vice Chairman Anne Wagner criticized the full board's decision in that case, saying it allowed agency management "almost unfettered discretion in making spending decisions that are not reviewable by the Board" and that it "amounts to nothing more than rubber stamping an agency's decision."

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