Federal employees are batting .000 in their appeals of last year’s sequestration-triggered furloughs, reflecting that legally speaking, they are stepping up to the plate with two strikes already against them.
The Merit Systems Protection Board, which decides challenges to government personnel decisions, has reported that its hearing officers had turned down employees in each furlough appeal that reached a decision as of March 31.
Because of sequestration-imposed budget limits, some 800,000 federal employees in a number of agencies were forced to take unpaid time off last spring and summer, in most cases several days. The largest furlough was at the Defense Department, where more than 600,000 employees had to take off six days.
Under federal personnel law, employees may challenge that type of furlough before the MSPB, which has a network of hearing officers and a three-member governing board that reviews their decisions. At the urging of unions, some 32,400 employees did so; an employee who wins such a case would be eligible for back pay with interest, and for potential reimbursement of attorneys fees, if pertinent.
That was about five times the number of cases normally brought annually to the agency; more than 1,600 cases came in electronically on the peak day, 80 times the daily average. That strained the small agency’s ability to even docket the cases.
Nearly two-thirds of the appeals now have been merged into some 700 consolidated cases with common features such as similar arguments and the same job site and deciding official. An MSPB spokesman said that many of the remaining cases may yet be consolidated after they are reviewed further.
Cases involving about 2,000 employees, most of them in consolidated appeals, had gone through the hearing officer stage by the end of March. Of those, the cases of about 800 were withdrawn by the employees, or rejected or suspended for technical reasons.
“Of the appeals adjudicated on the merits, 100% of the initial decisions affirmed the furlough action taken by the agency,” said the report, released last Friday.
That comes as no surprise to federal employment lawyer Ed Passman of the District firm Passman and Kaplan who did not pursue any furlough appeals on behalf of employees who approached the firm because “we felt there was no real chance of success.”
He said that under legal standards MSPB applies, “as long as an agency has a facially valid claim that they don’t have sufficient funding, the board is not going to review that. That’s management discretion to take action to avoid a budget deficit. The board is not going to second guess an agency’s assessment of its mission requirements and priorities.”
“An agency can basically do what they believe is reasonable as long as they apply it in a fair and even-handed manner. If there’s any evidence of disparate treatment I’m sure the board would take a hard look at it,” he said. But it is difficult to argue there was disparate treatment if everyone in an office is furloughed, he added.
The review board did issue one decision in May, following the period covered by the report, in which it returned for reconsideration a hearing officer’s ruling against the employee. The board said there was an open question of whether that employee’s job was funded by an account that was not subject to sequestration.
Employees furloughed due to sequestration were not later paid for the forced time off, since the goal was to save money. There was a later second round of furloughs in early October due to a partial government shutdown that lasted about two weeks; employees later were paid for that time after spending authority was restored, as had been done in similar situations in the past.
While there were only four appeals pending at the board level as of the end of March, one of them involving 18 employees, the report said that many more are expected as the hearing officers continue to issue decisions.