A case recently decided by the MSPB significantly diminishes the constitutional protections afforded to federal employees subjected to a furlough of 30 days or less vis-à-vis other adverse personnel actions such as removals, suspensions of more than 14 days, and reductions in grade or pay.

Gajdos v. Dept. of the Army, Docket No. SF-0752-13-1913-I-1 (July 22, 2014), involved an Army employee who was notified that, due to budgetary reasons, the agency proposed to furlough him for no more than 11 workdays.The agency provided Gajdos with an opportunity to respond to the furlough proposal, which he did, to no avail.The agency ultimately furloughed him for six workdays.

Gajdos alleged before the MSPB that the agency had denied him his constitutional due process rights by failing to provide him with a meaningful opportunity to respond to the proposed furlough.He argued that the designated “deciding official” who heard his reply to the proposal had no authority to stop the furlough, regardless of whether he made a reply.He produced several documents, including the agency’s discovery responses, which indicated that this was in fact the case – the decision to conduct the furlough had come from a much higher authority and the supervisor who heard the reply could not have stopped it.

The Board upheld the furlough, though.It concluded that the furlough was a reasonable business response to the budgetary pressures facing the agency, and that the furloughed employees were selected on a fair basis. The Board found that the government’s interest in quickly meeting budgetary constraints outweighed the employee’s interest in having his reply heard by another decision maker (namely the Secretary of Defense), particularly given that ultimately the duration of the furlough was only six days, and that there was minimal risk that the agency furloughed the employee in error.

Unfortunately, the Board in this case resorted to questionable reasoning to uphold this furlough, which a dissenting opinion recognized.The dissent argued that there is no legitimate basis for reducing the constitutional protections afforded federal employees in furlough cases.In deciding which adverse personnel actions would be appealable to the Board, Congress made no distinction between furloughs of 30 days or less and any other appealable action; thus all should be subject to the same due process scrutiny, and furloughs should not be subject to a reduced level of scrutiny introduced by the Board here.Because the “deciding official” who heard the employee’s reply to the proposed furlough had no authority to stop it, the employee was denied a meaningful reply opportunity to which he had a right.The dissent would have reversed the furlough in this case.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

The attorneys at Passman & Kaplan, P.C, are the authors of The Federal Employees Legal Survival Guide, Second Edition, a comprehensive overview of federal employees’ legal rights. To order your copy, go to http://www.passmanandkaplan.com. This book originally sold for $49.95 plus s&h, but is now available for $29.95 plus s&h.