“I heard furloughs can be appealed. Is this true?”
There are two predominant routes of furlough appeal. MSPB and EEO. Clearly any appeal related to furlough is an uphill battle. However, one view is that such an appeal may preserve future rights if the furlough is challenged and certain “classes” are established. This post addresses MSPB filing of an appeal. [Note: As of 7/8/13, AFGE updated its online “Furlough Tool Kit” providing step by step guidance on filing a furlough. Click Here to access]
As the MSPB discusses in this article, employees (as defined in 5 USC 7511 (a)(1)) can appeal the following adverse actions to the MSPB: 1) a removal, 2) a suspension for more than 14 days; 3) a reduction in grade; 4) a reduction in pay; and 5) a furlough of 30 days or less. 5 USC 7512 ; 5 USC 7513(d). And, we all know that EEO, unlike MSPB, does not establish hard line jurisdiction (you can complain about anything even as just an applicant for a position whereas with MSPB you must establish jurisdiction with the Board). With MSPB you appeal whereas with EEO you complain. Nevertheless, both entities have jurisdiction for furloughs and can provide remedies (does not mean they will).
Employees must file any appeal with MSPB within 30 calendar days of the first day he or she is furloughed. You can file online here (for free): MSPB e-Appeal Online
In reality, RIF’s provide a greater basis for appeal than furloughs, particularly in the context of establishing remedies. This is why agencies try to avoid RIF’s. They are technically intensive with a high potential for expensive errors.
Regardless, your remedies arising from a furlough appeal or complaint will likely bind the remedy. In MSPB the most typical remedy is to “make whole.” With EEO, there are “make whole” remedies as well as compensatory damages beyond “make whole” as well as non-pecuniary awards.
Basis for Appeal
- The furlough was not “fair and equitable”; i.e. some employees furloughed over holiday and others not.
- The Agency (in this case, the United States Border Patrol) could have used a more efficient means of financial control rather than furlough (for example, did you know ICE, as of 2/19, is issuing 15,000 new Iphones on Sprint and Verizon networks?).
- An appellant may challenge a furlough as a disciplinary action in disguise. Dietrich v. MSPB (Fed. Cir. 1984 nonprecedential No. 84-581).
- The method by which Agency imposed furlough. I.e. you should have been excluded or others should have been based on most efficient means.
- Areas of employees who work where there is a “surplus” of work should not have been furloughed and other areas where there is less work should have been furloughed “more.”
- The same cost savings could be achieved by furloughing certain occupations only with a mixture of other cost savings and would have promoted the efficiency of the service better.
- Improper notice.
There are other reasons that may be more particular to the individual or “class” filing an appeal.
I understand it is difficult to imagine a successful appeal under the circumstances. Nevertheless, it is your right to appeal- and you probably should.
SIDENOTE: The furlough does not appear to be the real issue in the case of certain agencies like the United States Border Patrol. The sequestration and budget issues appear a trojan horse for AUO. Unlike LEAP, loss of AUO cannot be appealed (as of the last time I reviewed the law).