Following is an excerpt from MSPB’s recent budgetary request for fiscal 2015, showing the impact of furlough appeals filed after budgetary sequestration in 2013.
Fiscal Year (FY) 2013 was an unprecedented year for the U.S. Merit Systems Protection Board (MSPB or Board). Due to the sequestration in FY 2013, many agencies, particularly, the Department of Defense (“DoD”) furloughed thousands of Federal employees. As a result, MSPB received over 32,000 furlough appeals – an increase of more than 525% over MSPB’s typical workload. Although the automatic sequestration cuts have been suspended for two years, if sequestration cuts return in FY 2016, Federal agencies will be in the same position as they were in FY 2013. Federal agencies will then likely need to rely on furloughs and reductions in force (“RIF”) to manage the resulting budget cuts. This would again likely result in MSPB receiving thousands of furlough and RIF appeals, in addition to MSPB’s usual level of appeals. As a result, this FY 2015 Congressional Budget Justification requests $46,821,000 in appropriated funds and $2,579,000 in reimbursements from the Civil Service Retirement and Disability Trust Fund.
A highly qualified Federal workforce managed under the Merit System Principles (MSPs) is critical to ensuring effective and efficient Federal agency performance and service to the public. The MSPs are in essence good management practices as such, and the most fundamental function of the MSPB is to ensure that these good management practices are employed in the management of the Federal workforce. The MSPs help ensure that the Federal Government is able to recruit, select, develop, and maintain a high quality workforce and thereby reduce staffing costs and improve organizational results that serve the public. A fully funded, well-run Board is critical to protecting the Federal merit systems, ensuring due process, promoting Government wide MSPs, and preventing Prohibited Personnel Practices (PPPs).
External events impacting MSPB operations A number of significant external events have impacted MSPB that are likely to continue to affect MSPB’s mission to protect the Federal merit systems through FY 2015 and should be considered as Congress determines funding levels for the MSPB in FY 2015. At MSPB, we recognize the financial challenges facing our nation with increasing pressure to cut fiscal spending and to reduce the size of the Federal government. However, our agency has been impacted in a unique way. On March 1, 2013, government-wide “sequestration” was implemented and MSPB sustained a decrease of over $2 million from its appropriation. As a result of sequestration, a number of Federal agencies furloughed staff, including the Department of Defense and its component military Departments. Hundreds of thousands of Federal employees were furloughed, and as expected, tens of thousands have exercised their statutory right to appeal their furloughs to the MSPB, resulting in historical increases in the number of initial appeals filed. 1 Every case filed must be processed and adjudicated and each appellant has a statutory right to a hearing, if requested.
MSPB’s regional and field offices received over 32,000 furlough appeals during FY 2013 and approximately 7,100 non-furlough appeals, for a total of over 39,000 appeals. This increase of more than 525% of the 6,200 initial appeals MSPB receives on average each year (FY 2007-FY 2012) has significantly impacted the processing time for all appeals. Simply docketing, acknowledging, organizing, and consolidating these appeals and preparing to adjudicate them has been an overwhelming endeavor and has affected all offices of the agency, with the regional and field offices affected most directly. The only historical comparator for this volume of work at the Board is the Air Traffic Controller terminations that occurred in 1981. At that time, approximately 11,000 appeals were filed at the Board by terminated controllers. We would note, however, that in addition to the fact that the furloughs caused more than three times as many appeals to be filed than did the strike, in 1981 MSPB had about twice the number of full time equivalents (FTE) than the current staffing levels. Additionally, unlike the current furlough appeals, which are spread across various agencies government-wide, all 11,000 appeals came from the Federal Aviation Administration, and covered a uniform adverse action (termination).
Although there has been a two-year suspension of the across-the-board sequestration cuts which may significantly diminish the number of furlough appeals MSPB can expect to see in FY 2015, an increase of furlough appeals will likely recur if agencies continue to be faced with implementing adverse personnel actions to address ongoing budget reductions due to sequestration. Based on the number of furlough appeals currently in the regions, our petition for review (PFR) receipts at the full Board in headquarters in Washington, D.C. may increase significantly in the fourth quarter of FY 2014 and into FY 2015.
This would then significantly increase the work of the Clerk of the Board (“OCB”), which performs the ministerial functions connected with the PFR process, and the Office of Appeals Counsel (“OAC”), which performs the first substantive review of all PFRs and the drafting of decisions in those cases.
Also, if sequester cuts are restored in FY 2016, agencies may resume furloughing their employees or begin to reduce staffing levels through RIFs, and PFR receipts could remain at historic levels for years to come. We have already seen that large agencies are planning to take RIFs to more permanently deal with budget shortages. Employees subjected to RIFs may also appeal those actions to MSPB, and the rules governing RIFs are far more complicated than those governing adverse action furloughs. Thus, even if the overall number of appeals does not remain at a historical high level, we anticipate that the complexity of the workload is likely to rise significantly. We note that the Office of Personnel Management (OPM) recently announced a RIF of 300 employees.
Due to the likelihood that a significant amount of the furlough PFRs will be filed in late FY 2014, we anticipate higher than average receipts in FY 2014. With the expected increase in furlough appeals, RIF appeals, and PFRs, we believe that it is essential MSPB receives a corresponding increase in budget authority to fund staffing needs to meet this increased workload.
In addition to all of the work necessary to process and adjudicate the furlough appeals, other factors will also impact MSPB in FY 2015. For example, we anticipate a continued increase in federal employee retirements, which will likely increase the number of retirement appeals and PFR receipts by the full Board in headquarters. Moreover, significant changes in the law will have a direct impact on case processing. We anticipate that the Whistleblower Protection Enhancement Act (WPEA) will greatly increase the number of whistleblower cases that will proceed to a hearing.
Indeed, the regional and field offices are already seeing an increase in the number and complexity of 3 WPEA hearings held. Additionally, the Hatch Act Modernization Act of 2012 may increase the number of Hatch Act cases OAC handles. Further, revisions to management flexibilities, such as the Pathways Program, are anticipated to continue. In the recent past, such revisions have generated numerous complex cases challenging various aspects of the revisions, such as the Outstanding Scholar Program, Federal Career Intern Program, and the National Security Personnel System.
The regions will be receiving all these appeals in the first instance, potentially causing a substantial increase in their workload. Beyond that, of course, is the effect those appeals will have on the work of OCB, OAC and the Board members. Even absent the thousands of furlough appeals, it would be reasonable to assume based on the other factors set forth above that headquarters could see a 25 percent increase in PFR receipts, which would mean that OAC could anticipate receiving 1,400 cases in each of FY 2014 and FY 2015. Due to their unprecedented volume, the initial appeal furlough cases will take many months to process in MSPB’s regional offices. Accordingly, OAC may receive as many or more furlough PFRs in FY 2015 as it will in FY 2014.
The furlough appeals also had a serious impact on MSPB’s information technology infrastructure and the Office of Information Resources Management (IRM). During the peak filing period, the number of appeals filed through MSPB’s online filing system e-Appeal was 65 times what MSPB normally experiences on a busy day. The high volume of activity has caused enormous stress on MSPB’s case processing systems, causing resources such as processors, memory, disk space and internet bandwidth to max out at various points. As a result, IRM staff have had to continuously monitor system resources, trap and correct errors when possible (i.e., bad file types), and reboot the system multiple times a day to recover system resources when necessary. IRM staff also processed a high number of external help desk support tickets as the number of first-time users of the e-Appeal system steadily increased. On the high-volume days, members of the IRM Technical Support team would spend all of their time responding to technical support issues. As a result, some projects related to maintaining, improving, and upgrading the MSPB technical infrastructure have been delayed.
There are also longer-term impacts from the massive increase of furlough appeals. Many of the planned system enhancements, upgrades and projects have been delayed while IRM staff focus on handling the electronically filed appeals and resolving related system support issues. As the furlough appeals are being processed by MSPB regional offices and additional pleadings are being filed, e-Appeal logons and document repository access are regularly exceeding 2,000 per day. The systems and infrastructure will need to be upgraded to handle the additional volume of electronically filed appeals and pleadings. This may include moving the data center from MSPB headquarters to a dedicated hosting site, expanding the server and storage capacity, and adding load balancing and failover capabilities. Internet bandwith will also need to be expanded to accommodate the increased traffic. Additional help desk staff is needed to handle both external and internal support requests – this was already an issue given that external tickets had grown to twice the amount of internal tickets, even before furlough case-related tickets started arriving.
One additional consequence of MSPB’s budget concerns is that we are severely limited in our ability to provide outreach and education that are essential to the effectiveness and efficiency of our adjudication and studies functions. MSPB employees are frequently sought after to speak to agency and appellant representatives and other stakeholders. Such outreach tends to improve the quality of representation for both parties and therefore helps to assure better adjudications.
As we assess our needs for FY 2015, any decreases in MSPB’s budget authority will have a direct, adverse impact on our ability to perform our mission, which will cause an increase in case processing times at all stages. Prior to FY 2014, MSPB’s shrinking budget authority resulted in position vacancies, which have already contributed to the slowing of case processing times. Given all of the foregoing factors, MSPB is requesting $46,821,000 in appropriated funds and $2,579,000 in reimbursements from the Civil Service Retirement and Disability Trust Fund.
