Did you ever think something like this would happen?
We had initial discussions to try and get a ballpark number of what we would see. We thought the universe of employees who were furloughed and would appeal was, say 1 percent. It turns out we estimated low.
So you’ve put processing the cases on hold? Why?
We’re waiting until we see the lay of the land. Whether employees are represented by counsel or not, for example. We’re sending out the acknowledgment order we put on the website.
Federal employee unions and agencies have asked the merit board to consolidate many cases, treating them like class actions. Will this happen?
We’re starting to see common questions posed by appellants. Questions on how agencies spent their dollars under the budget cuts, did the agency have the funds to avoid furloughs. And on disparate treatment: Some employees in a department didn’t get furloughed.
The Army, Air Force and Navy have asked for a nationwide consolidation. Management has asked for that. What we’ve responded to the parties is, we’re not making any decisions yet. We’re temporarily delaying processing.
In the next week or two, we’ll look at who the deciding officials were in the agencies. That’s a legal term: Who in the agency decided to furlough Lisa and Susan on which date? If it’s one united deciding official, that person’s testimony can potentially testify in numerous claims. We did this with the air traffic control strike 30 years ago.
We’re not clear on whether we’ll consolidate. There may be cases out there in that unprocessed pile that merit individual claims. They may be arguing their furloughs were discriminatory.
Will the Defense Department decision this week to reduce furloughs to six from 11 days affect these cases?
The decision to lower the days won’t be a factor. Once you’re furloughed, you’re furloughed. It doesn’t mean the cases we’re getting are moot.
How is your staff coping with the increased workload?
They’re flooded. They’re working so hard during this unprecedented time for us. The filing is free, and lots of people are filing in paper. In Philadelphia and Atlanta, we have stories. People are dropping off stacks and stacks of paper appeals. Some of our offices have only two or three support staff to help with the intake. They’re getting through it.
Our administrative judges had a good deal of anxiety about getting through the cases. But they’re going to buckle down and do the job.
The bottom line is, this agency is being tested in a huge way. We’re holding up. With sequestration, we’ve delayed hiring and cut travel. At our peak [In the 1980s] we had 400 employees. We have 200 now.
I guess the air traffic controller strike in 1981 is the only case of mass appeals of a personnel action that comes close to this, right?
The air traffic controllers filed 11,000-plus appeals of their firings. We were able to hire temporary staff to process them and it still took two-and-a half years.
What rights do employees have when they file appeals like this?
They have a right to a hearing. To present their side of the case, and cross examine agency witnesses. The goal is to get it all done as expeditiously as possible. I’d love to have it done before the end of this fiscal year. It may not happen.
Administrative judges have ruled in a few cases filed by employees at the Federal Aviation Administration. They were furloughed for one day before Congress allowed the agency to shift money around.
We’ve had rulings in about 15 FAA cases so far. The [Administrative Judge] affirmed the agency’s action under “efficiency of the service” standards. They measure whether the agency had a legitimate management purpose in undertaking this adverse action.
If sequestration continues, what will the repurcussions be for the merit board?
Here’s your new reality. If government agencies go into sequestration next year, this will be the new normal. What if it’s not furloughs in the future? What it it’s Reduction in Force (RIFs) ? They would still be coming to the MSPB. Every one of our offices is affected by the furlough cases. You can’t really shy away from it.