Unions have been urging their DoD members to file appeals internally and at MSPB arguing that the furloughs are unnecessary in some components, particularly in the Navy, to meet sequestration budget levels. A common argument being raised already in internal agency appeals involves the distinctions the Pentagon made in excepting certain employees—a sorting out process that has been ongoing virtually right up to the start of furloughs. Some employees originally scheduled to be furloughed apparently have successfully argued to management that their positions qualify under an exception, such as one covering certain medical care-related jobs. While there is little precedent in the area, the main grounds for a successful MSPB appeal would be unequal treatment with other employees in similar work functions, potentially a difficult argument to winwhen nearly everyone is being furloughed, and for the same number of days. Another basis for appeal could be that management failed to follow proper procedures in notifying employees—which experts say could happen given the large number of employees involved, even though DoD has been planning furloughs and issuing internal guidance on the process for months. The filing of an appeal at MSPB does not prevent an employee from being furloughed, however. At best, a prevailing employee would receive back pay for any furlough time deemed to be improper. Given the number of appeals that could be filed, it could be some time before MSPB would work its way through all the cases. So far MSPB hasn’t issued any decisions on appeals filed by employees of other agencies that started furloughs earlier.
