Following is the section from a recent MSPB report discussing the status of appeals filed by federal employees challenging last year’s sequestration furloughs.
The most significant external factor currently affecting MSPB’s ability to carry out its mission is the tens of thousands of furlough appeals filed with MSPB regional and field offices as a result of budget sequestration. Soon after Governmentwide sequestration took effect in March 2013 several agencies (e.g., EPA, Federal Aviation Administration, Internal Revenue Service, Social Security Administration, and others) began implementing furloughs of their employees. In July 2013, DoD began implementing furloughs for most of its 650,000 employees. Under Federal law, employees have the right to appeal furloughs to MSPB. In FY 2013, almost 32,400 furloughed employees filed appeals in MSPB’s regional and field offices, approximately five times the 6,200 initial appeals MSPB receives on average each year (2007-2012, not counting addendum appeals). In addition, in accordance with statute, seven agencies requested permission from MSPB to furlough 158 ALJs.6
Almost 32,000 DoD employees filed furlough appeals over a 5-6 week period in July and August 2013. This volume of initial appeals had and continues to have an extraordinary impact on MSPB’s regional and field offices. Accurate docketing requires reviewing the appeal and entering additional information into our case management system (even when appeals are filed electronically through e-Appeal Online). MSPB’s paralegals and legal assistants in the regional and field offices worked overtime to manage this massive workload and MPSB hired temporary employees to assist in docketing cases. In addition, a furlough appeal docketing “strike team” was established at HQ to assist the regional and field offices in docketing these appeals.
The overall volume of furlough appeals, number of furlough appeals filed per day, and subsequent processing spikes created during the normal receipt and distribution of case documents (orders, responses, pleadings, etc.) to and from the parties during the adjudication process, are also straining MSPB’s processes and IT infrastructure. On the busiest day, 1,656 appeals were filed electronically via e-Appeal Online, 80 times the average daily number of appeals filed online. This one-day total was over half the 2,872 appeals filed online through the first nine months of FY 2013. The volume of electronic filing and subsequent processing caused IT resources such as processors, memory, disk space, and internet bandwidth to exceed maximum operational capacity at various points; this required constant monitoring during filing and processing peaks and frequent rebooting of the system to recover system resources. MSPB developed and implemented new ad hoc processes such as docketing short cuts and batch processing of legal notices to help manage the workload. MSPB also reached agreement with several agencies to use a common agency file containing the agency’s documentation regarding its furloughs. MSPB’s programmers also updated multiple case processing systems to accommodate case docket numbers that could exceed 9,999 cases per office in a FY. In addition, the number of external help-desk tickets increased proportionally to the number of first time users of e-Appeal Online, overwhelming MSPB’s help-desk services.
As a result of furlough appeals, MSPB responded to a larger than normal number of press inquiries and interview requests and managed a large increase in telephone calls, voicemails, and emails from individuals, attorneys, and agencies requesting information on the appeal process, identifying problems with e-Appeal Online, and requesting status of their appeals. MSPB had additional contacts with Members of Congress and Congressional staff to provide information about furlough appeals and their impact on MSPB. MSPB posted and continues to post notices on our website and through social media to share important information on furlough appeals.
By the end of the FY 2013, nearly all of the DoD furlough appeals were docketed—entered into MSPB’s system—so our AJs could begin the adjudication process. MSPB is using a variety of adjudication strategies to effectively and efficiently process furlough appeals. One strategy is to consolidate cases with common elements such as agency, duty location, or deciding official. Consolidating cases and processing consolidated cases takes more time and is a more complex undertaking than processing a single adverse action case. Nonetheless, this is one of the most useful methods available to ensure due process and efficient adjudication of this enormous number of cases. By the end of FY 2013, a small number of furlough appeals had been processed, including one important Board decision issued on an interlocutory appeal. On September 18, 2013, the Board issued a decision in Chandler v. Department of Treasury regarding the issues the Board will consider in furlough appeals.
The sheer number of furlough appeals resulting from Federal sequestration was unprecedented—32,400 initial furlough appeals compared to an average of 6,200 initial appeals received per year.7 By the end of March 2014, approximately 64 percent of individual furlough appeals had been consolidated into 724 consolidated cases. Additionally, approximately 2,000 individual furlough appeals have been processed (dismissed, settled, or adjudicated on the merits) as individual appeals or as part of consolidated cases. Of those processed, about 40% were dismissed for a variety of reasons including for lack of jurisdiction or timeliness, withdrawn, cancelled, or dismissed without prejudice. Of those dismissed, about 63% were withdrawn by appellants or cancelled due to failure to prosecute. Of the appeals not dismissed, 99% were adjudicated on the merits—meaning that only about 1% of furlough appeals were settled—a far smaller portion than is normally resolved through settlement. Of the appeals adjudicated on the merits, 100% of the initial decisions affirmed the furlough action taken by the agency. We generally anticipate a proportional increase in the number of furlough PFRs filed at HQ. As of the end of March 2014, 4 furlough PFRs had been filed at HQ (all in the second quarter). These PFRs are currently being processed.
MSPB will continue to use a variety of strategies to process furlough appeals in conjunction with other adverse action cases and cases filed on other matters for which MSPB jurisdiction (e.g., appeals related to whistleblowing, retirements, various veterans’ hiring authorities, etc.). MSPB is committed to issuing initial decisions in all furlough initial appeals by the end of FY 2015, while maintaining the processing of non-furlough appeals as effectively as possible. In addition, MSPB is investing in long-term improvements in electronic adjudication and electronic case-processing. Although sequestration is suspended for FY 2014 or FY 2015, future budget reductions for individual agencies may lead to additional furloughs or more permanent workforce reduction actions such as reductions in force (RIFs). At this time, we cannot anticipate how these budget actions will affect the number of initial appeals (and subsequently PFRs) in FY 2014 or 2015.
