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By Debra Roth

MSPB works through furlough appeals

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It’s been about one year from the furloughs of 2013, and the Merit Systems Protection Board is making progress processing the approximate 32,400 appeals it received. That’s right, 32,400 employee appeals challenging their furloughs. That number is jaw-dropping when you consider that the MSPB has been averaging about 8,500 appeals annually before furloughs. With a furlough docket of that size, it is worth acknowledging a furlough decision. In sum, no surprises.

This board decision, Dye v. Department of the Army, involved a U.S. Army Corps of Engineers (USACE) employee who was furloughed for six days from his cConstruction cControl position. He appealed to the MSPB, arguing that the agency should have excepted him from the furlough because the agency’s policy during the furlough was to exempt personnel whose labor costs were completely paid from Civil Works or Intelligence Community funding sources. The MSPB administrative judge consolidated the employee’s appeal with a number of other appeals, and based on the written record the administrative judge affirmed the furlough action, holding that the agency had demonstrated that the furlough promoted the efficiency of the service by showing that it was a reasonable management solution to the financial restrictions placed on it and had been applied in a fair and even manner.

The employee petitioned the full board for review of the administrative judge’s decision, separate from the rest of the consolidated appellants, and on May 23, 2014, the board vacated the administrative judge’s initial decision.

The board cited five U.S.C. sections 7512(5) and 7513(a) for the rule that an agency may furlough an employee for 30 days or less “only for such cause as will promote the efficiency of the service.” The board articulated that this standard is met when an agency can show that the furlough “was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a fair and even manner.” However, the board pointed out that before it can reach the issue of whether an action “promotes the efficiency of the service,” an agency must first establish that there is “cause.” The board cited the definition of “cause” under 5 U.S.C. § 7513(a) as generally connoting some specific act or omission on the part of the employee that warrants disciplinary action. Because furloughs are taken for nondisciplinary reasons, the board held that the definition of “cause” in furlough actions must be defined differently, in this case, as encompassing “whether the appellant met the criteria established by the agency for being subject to, and not excepted from, the furlough.”

On appeal, the employee did not contest the validity of the furlough in general. Rather, he asserted that he should have been excepted from the furlough because he met the criteria. Specifically, he asserted that although his Unit Identification Code found in his Standard Form 50 (SF-50) was a Military Functions code, from April 2008 to October 2012, he worked entirely on a Washington Aqueduct project that was a Civil Works project, and funded completely with non-Department of Defense funds. He also asserted that the labor costs of his current project had been funded completely by National Intelligence Program funds. The employee also provided decision notices indicating that the agency had rescinded the proposed furloughs of five other employees after it was determined that their labor costs of those employees who also were funded solely with National Intelligence Program resources.

The board pointed to evidence that one of the categorical exceptions to the furlough of DoD employees was any employee not paid by accounts in the DoD-Military budget. This exception, noted the board, derived in part from a USACE request to the Department of the Army headquarters, that all USACE Civil Works employees be excepted from the furloughs due to a more sufficient level of Civil Works funding outside of DoD-military appropriations.

Because the administrative judge did not address the employee’s argument that the furlough was improper because of the source of the funding of his work, the board addressed the issue on appeal. In so doing, the board found that the record was unclear as to whether the agency determined that the employee met the criteria established by the agency to be excepted from the furlough, and thus it was unclear whether the agency had demonstrated “cause.”

And for that reason, the board vacated the initial decision and remanded the appeal to the administrative judge to allow for the presentation of evidence and argument on whether the employee met the criteria established by the agency to be excepted from the furlough.

That’s a lot of litigating for an employee contesting six days of furlough pay, and a lot work by the MSPB. However, what’s most notable is the ability of the board to deal so diligently with a caseload quadruple its norm and the consistent application of legal precedent governing furloughs.We’ll continue to watch the board process its furlough docket and let you know of any surprises. None as of yet.

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth in Washington. She is general counsel to the Senior Executives Association and the Federal Managers Association, host of the “FEDtalk” program on Federal News Radio, and a regular contributor to Federal News Radio’s “Federal Drive” morning show. Email your legal questions to lawyer@federaltimes.com. View her blog at blogs.federaltimes.com/federal-law.

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