What to know about furlough appeals


I often hear employees affected by an adverse personnel action repeat urban legend that this Merit Systems Protection Board will likely reverse or mitigate the agency’s action taken against him or her.

There’s also a growing belief in Congress that the MSPB is too employee friendly and a reason why there is a workplace culture of employee entitlement that detracts from an agency’s mission.

Recent statistics from the MSPB tell a different story. What does this mean for you, a federal employee with MSPB appeal rights? Know before you go, as most likely the board will affirm (and not mitigate) the agency action taken against you.

As the board noted, the last three years have been “unusual” in the sense that since fiscal 2013, MSPB’s regional and field offices received over 32,000 appeals of furlough actions during sequestration and the government shutdown. As a result, the board set a “new record” in case closures, closing 28,509 cases in fiscal 2015. Most of these case closures were affirmations or dismissals of employee furlough appeals. A significant portion of the processed furlough appeals were dismissed. Of those that survived dismissal and were decided by the MSPB, 99 percent affirmed the agency furlough actions.

Per the board’s report, 93 percent of the thousands of furlough appeals that have been received by the MSPB have been closed, meaning that the MSPB is close to moving on from this “unusual” era.

The MSPB also processed 5,418 non-furlough appeals in FY15. Affirmation numbers for non-furlough cases that were decided by the MSPB still weighed heavily in the agency’s favor. Of the 811 non-furlough cases adjudicated by the MSPB, 648 affirmed the agency’s actions. But many more non-furlough cases were dismissed or settled before adjudication.

Only 17 percent of the non-furlough cases processed by the MSPB in FY15 resulted in a reversal of the agency’s action, and a meager 2 percent were mitigated to a lesser penalty.

The U.S. Court of Appeals for the Federal Circuit is the board’s reviewing court for appellate cases, cases brought by the U.S. Special Counsel, and original jurisdiction cases. Historically, the MSPB has achieved a high affirmation rate with its reviewing court. FY15 was no different: the appeals court left unchanged 96 percent of the MSPB cases that were processed on its docket.

What does this mean for you? Well for the tens of thousands of employees who filed an appeal of his or her furlough action, their appeals were very predictably decided against them by the board, some three years later. Would these employees have filed those appeals if they’d known how the law favored the furlough actions and how much strain it placed on the MSPB to adjudicate 32,000 furlough appeals in lieu of regular adverse action appeals such as removals or demotions for cause or removals for unsatisfactory performance. Aside from the furlough appeals issue, for those employees who are the subject of an adverse action and believe that this MSPB will likely reverse or mitigate the action taken against them — and thus they have nothing to lose by filing an MSPB appeal — these statistics should be a reality check.


About Author

Debra Roth

Debra L. Roth is a partner at the law firm Shaw Bransford & Roth, a federal employment law firm in Washington, D.C. 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.

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