Merit Systems Protection Board swamped by volume of furlough appeals
The files came by the thousands, and cardboard boxes stuffed with manila folders overflowed into the hallways.
When the White House and Congress allowed automatic spending cuts to take effect across the government in March, the theory was that agencies would have to do less. Employees would be furloughed — compelled to stay home without pay. Money would be saved. Efficiencies would occur.
Not in one obscure corner of the giant federal bureaucracy: the tiny agency charged with making sure federal workers are treated fairly. At the Merit Systems Protection Board, the forced cuts known as sequestration have resulted in a tidal wave of work, seemingly insurmountable caseloads that have swamped its servers, broken its fax machines and exhausted its supply of paper clips.
“None of our systems were built in anticipation of this,” said Deborah Miron, the clipboard-toting head of regional operations, who has struggled to stay composed amid the crisis. “For a lot of people,” she said of her staff, “this is the most tumultuous episode in their careers.”
Creating more work when the goal is less is perhaps the inescapable alchemy of bureaucracy. Federal workers who believe they were unjustly furloughed are entitled to appeal that decision, and in this case, their unions implored them to do so. Employees appealed by the thousands, creating as many as 5,000 cases a day. Now the board’s 200 staff members are scrambling to assemble documents and hold hearings for 32,000 federal workers who say they deserve back pay.
While the government says the furloughs were a reasonable response to the budget cuts, the workers argue that in many instances, they were unfairly sent home even as colleagues in similar jobs were spared and there wasn’t adequate justification for specific furloughs.
The new workload — six times what the agency is used to handling — has tested the endurance of lawyers and judges who are managing the legal and logistical challenges.
Fewer than five dozen cases have been heard so far, so the appeals could leave the agency buried long after the end of the current budget wars. And more appeals could pile up if Congress does not head off a second round of sequestration cuts early next year. The good news for the board is that the recent shutdown — which sent hundreds of thousands of federal workers home for more than two weeks — is not going to boost its workload. Congress agreed to give those workers back pay.
Under normal circumstances, the Merit Systems Protection Board’s eight regional offices from Crystal City to San Francisco act as courts of personnel law that determine whether federal workers were wrongly fired, demoted, discriminated against or punished for whistleblowing.
Most of those now petitioning for back pay work for the Defense Department. The Pentagon sent 650,000 civilians home for six days. Federal employee unions called on their members this past summer to file appeals as an act of mass resistance to the spending cuts.
The appeals have come by post, e-mail, fax and hand delivery. Miron has to make sure every case is scanned, docketed on the computer system and assigned to one of 56 administrative judges, who will decide whether the furloughs were justified.
She has brought in temporary staff to the headquarters at 1615 M St. NW to help docket the files. The regional offices did not have enough staff to handle all the incoming cases, so Miron directed them to pack up the files and send them by United Parcel Service to the Washington office. Now, with docketing done, headquarters is shipping the originals back.
One morning last month, about 40 of the agency’s lawyers sat around a conference table at headquarters folding letters and licking envelopes.
“Due to the high volume of furlough appeals resulting from sequestration,” read the form letter, “the parties are informed that they will not be contacted until a later date with specific instructions concerning the adjudication of this appeal.” The parties were asked to refrain from contacting the board directly, given the strong likelihood that their cases would still be sitting in a box somewhere.
“It’s sort of a placeholder,” said Bill Kalish, one of the lawyers. “ ‘You’ve got to cool your jets,’ but in a more polite manner.” Somewhere in the pile was a letter to his own home addressed to his wife, who had been furloughed from the Defense Department.
“It’s a whole lot easier to tell someone where I work now,” said Jill Nelson, another lawyer, now in her 25th year at the board. “At the agency that’s overwhelmed with the furlough appeals.”
The last time the board was thrust into the spotlight was in 1981, after President Ronald Reagan fired 11,000 striking air traffic controllers. All but a few appealed. The firings were eventually upheld, but it took two years to get them through the system.
At the time, the agency had twice as many employees as today.
To speed up the hearings this time around, some appeals are being consolidated. If one government official issued 200 furlough orders, for example, a judge will review them together. In other instances — such as employees who claim they were treated unfairly because colleagues in their office were exempted from furloughs — cases will be heard one at a time.
Jerry Cassidy, the high-octane chief of the Washington regional office in Crystal City, said he wonders how all the cases will be accommodated once the hearings begin.
In a typical year, the office might process 1,000 cases. It now has 5,800 appeals pending from defense employees. The office has two tiny hearing rooms, each just large enough for a plaintiff, a lawyer, a judge and a few witnesses.
“If we’re having consolidations with 50 people, how are they going to fit in these small rooms?” he asked.
The whole process lost momentum when the federal government shut down Oct. 1 and the board’s staff was furloughed.
“Subtract 16 days and that’s where we are,” said the board’s chairman, Susan Grundmann. “We’re still overwhelmed.”
As winter approaches, Miron is telling everyone to try to stay healthy. She is worried because four judges have announced their retirements in December, and there’s no money to replace them.
The likely outcome of the appeals is not a mystery. Merit Systems judges have rendered judgment in nearly 60 cases, many of them filed by employees at the Federal Aviation Administration. In every instance, the judges affirmed the furlough decisions.