And while merit board judges typically hear challenges from civil servants who have been demoted, fired or retaliated against for whistleblowing, the overwhelming majority of the recent petitions are from Defense Department civilians. Starting July 8, 650,000 Defense employees took the first of 11 furlough days required as part of the $85 billion in budget cuts across government known as sequestration.
“The message here is, we’re not going to just roll over and take this lying down,” said David Borer, general counsel for the American Federation of Government Employees, the largest federal employee union. “We’re just getting started.”
The AFGE and other unions are holding workshops across the country to instruct members how to file appeals that seek to cancel the furloughs and award back pay. Several unions have asked the merit board to consider some appeals as class-action cases.
In addition to Defense employees, workers have appealed from the Internal Revenue Service; the departments of Homeland Security, Housing and Urban Development and Interior; the Equal Employment Opportunity Commission and the Environmental Protection Agency. In all, about 775,000 federal workers face furloughs of four to 15 days before the fiscal year ends Sept. 30.
Fix is up to Congress
A spokesman for the Office of Management and Budget said it is up to Congress to replace the sequester.
“Because of the sequestration, agencies are being forced to make very difficult decisions, including the use of furloughs, as a means to achieve the spending levels required by Congress,” spokesman Steve Posner said in a statement.
“It is not too late for Congress to fix the sequester and avoid more unnecessary damage to families and to the economy,” he said.
Some employees are claiming that their job responsibilities are comparable to those of colleagues who were exempted from furloughs; others say their agency discriminated against them. But for the most part, they are arguing that the furloughs are adverse actions the government took without sufficient cause to make its mandated budget cuts.
The agencies could have made deeper cuts to programs and contracts instead, the employees say. As evidence, some cited statements by Navy officials in April that they could eliminate furloughs for about 201,000 Navy and Marine Corps civilians by shifting money in the budget. Leaders of other smaller departments in Defense said they could do the same.
But Pentagon officials insisted that furloughs be spread across all Defense agencies to share the pain.
“We have looked at all options to meet these cuts and believe one option must, unfortunately, be furloughs,” said Lt. Cmdr. Nate Christensen, a Defense spokesman, noting that civilian pay takes up more than a third of the agency’s operating budget. “The guiding principle . . . was the preservation of the readiness of the force to accomplish the department’s mission to ensure our national security.”
Merit board overwhelmed
The merit board is scrambling to assign each of the cases to its approximately 50 administrative judges. Already understaffed because it is not filling vacancies to meet its own sequestration cuts, the board is overwhelmed with appeals arriving electronically, by fax and by regular mail.
On Thursday alone, 575 petitions arrived at the board’s eight field offices, compared with about 20 suspensions, demotions, removals and other challenges to personnel actions that federal employees file on a typical day.
“Right now, the biggest thing we’re dealing with is entering the information into the system,” said James Eisenmann, the merit board’s executive director, who expects the number of cases to grow and has authorized overtime for his staff to process them. “It’s a massive undertaking.”
There is little legal precedent for these types of appeals, and the board has not faced a comparable wave since President Ronald Reagan fired 11,000 striking air traffic controllers in 1981. (Those firings were eventually upheld.) During the federal shutdowns of the 1990s, the government averted mass appeals when Congress passed legislation awarding back pay once agencies reopened.
The flood of petitions is renewing questions about what government owes its employees as it tries to shrink spending — whether people should be spared before programs and contracts, or if they represent just another budget line item.
“Hopefully, our cases will get notoriety for Congress to actually understand and see what’s going on,” said Aaron Walker, a 57-year-old systems analyst for the Defense Logistics Agency in Columbus, Ohio.
Like his colleagues, Walker will lose 20 percent of his pay over 11 weeks to help the Pentagon save $1.8 billion. He filed an appeal electronically Thursday.
The process can be lengthy. An employee has 30 days from the first furlough day to file. A judge can decide the case based on paperwork, or the employee can request a hearing. It took judges 93 days on average last year to rule on each case. The losing party can appeal to a three-member panel, which takes 240 days on average to issue a decision.
A tough sell
Union officials acknowledge that winning will not be easy. Federal agencies generally have discretion to decide how they meet their budgets. In the only sequester-related appeal to be decided so far, the judge ruled in favor of the furloughing agency, the EPA.
But the unions hope that the large number of appeals might not only get their members back pay, but could also prompt Congress to reverse course on the sequester, which is likely to continue into next year and beyond.
The employees must prove that the furloughs do not “promote the efficiency of the federal service,” the standard in personnel cases.
“We think they could have made other decisions, like cutting contracts,” said Colleen Kelley, president of the National Treasury Employees Union, which has filed grievances directly with the IRS seeking back pay for 80,000 workers. About 100 have appealed to the merit board.
If a large number of employees was to win appeals, the rulings could force agencies to find new savings to meet the mandated spending cuts this fiscal year.
But in the absence of legal precedent on whether furloughs are an appropriate response to budget cuts, judges might decline to second-guess an agency’s discretion, some attorneys said.
Joseph Kaplan, a District-based federal employment lawyer, said it is up to each agency to decide how to save money.
“If they want to run the air conditioning seven days a week instead of saving money on our electric bill, they can do that,” he said.
His firm was approached by several employees who wanted to be represented in furlough appeals. Kaplan said he and his partners did not take the cases because they did not think they were winnable.