MSPB Indefinitely Delays Processing of Defense Furlough Appeals

The Merit Systems Protection Board has delayed processing and adjudication of furlough appeals from Defense Department employees until it can get a better handle on them.

Approximately 30,400 furlough challenges have poured into the small federal agency to date this fiscal year; of those, about 96 percent so far are from Defense employees forced to take unpaid leave because of sequestration. MSPB, which has a little more than 200 employees in Washington and in eight regional offices nationwide, called the number of appeals “unprecedented” and “overwhelming.” The agency will continue to process as usual furlough appeals from employees of non-Defense agencies.

The delay will allow MSPB to glean “a better understanding of the claims being raised, the work locations of the appellants, the MSPB offices in which the appeals have been filed, and whether or not the appellants are represented,” the agency said in a statement on its website. The board encouraged employees to file appeals electronically if they can, and to check online periodically for updates.

Among its other responsibilities, MSPB adjudicates appeals of “adverse personnel actions” from federal employees who’ve been fired, suspended for more than 14 days, furloughed for 30 days or less, demoted or had their pay cut. Agencies must give furloughed employees 30 days’ advance notice; once on furlough, employees have 30 days to file an appeal with MSPB. The agency’s regional offices received about 6,000 appeals during fiscal 2012; as of Monday, the regional offices received approximately 35,000 appeals, the bulk of which are furlough appeals. And there’s still more than a month left in fiscal 2013.

“As you can imagine, our regional offices have been overwhelmed, but our employees are working hard and doing the best they can do under difficult circumstances,” said Bryan Polisuk, MSPB general counsel, in an email. MSPB administrative judges have issued 16 decisions so far in furlough appeal cases, all from employees of the Federal Aviation Administration and the Environmental Protection Agency. The judges agreed with the agency’s decision to furlough the employees in each of those cases.

MSPB is docketing Defense furlough appeals as they come in, and then notifying employees that it will contact them “at a later date” with information on the status of their appeals. “MSPB will also be unable to respond quickly to inquiries regarding these furlough appeals,” the website statement said. “We ask therefore that parties to DoD furlough appeals refrain from contacting MSPB’s regional and field offices until we inform you that processing of your appeal has begun.” The board also sent letters in July to the general counsels of the Navy, Air Force and Army informing them of the processing delay related to Defense furlough appeals.

The agency’s regional offices have docketed 10,700 furlough appeals to date, Polisuk said. “The docketing process itself takes some time,” he said. “We’re hoping to be in a position soon to make decisions on how to move forward and adjudicate these cases in the most efficient manner possible, but again, it will depend on the volume of appeals.”

Defense furloughed 650,000 civilian employees this fiscal year because of sequestration. The department originally told employees that they would have to take 22 days of unpaid leave through Sept. 30; that number now is down to six days.

MSPB officials have worried since before the mandatory budget cuts took effect in March that the tiny, quasi-judicial agency could be flooded with appeals from furloughed employees across government. The only other time something like this happened, according to officials, was in the 1980s when the agency had to process 12,000 personnel-related appeals during the air traffic controller strike. That took two years, and at the time, MSPB had about double the number of employees it has now.

The average appeal processing time in fiscal 2012 was 93 days for an initial decision from the agency. The losing party can then file a petition of review with the agency’s three-member board in Washington. It took an average of 245 days to process those petitions in fiscal 2012.

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