MERIT SYSTEMS PROTECTION BOARD APPEAL GUIDE FOR

FURLOUGHED EMPLOYEES

PREPARED FOR NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES &

INTERNATIONAL BROTHERHOOD OF POLICE OFFICERSBARGAINING UNIT MEMBERS 1

PURPOSE OF THIS GUIDE To provide NAGE and IBPO bargaining unit employees with guidance on filing individual appeals with the Merit Systems Protection Board (MSPB) concerning their employing Agency’s decision to institute furloughs.

This guidance is prepared for the benefit of the non-attorney pro se Appellant. Because each individual’s circumstances may vary with regard to the decision to furlough and basis for appeal, no single sample appeal will apply in all situations. If you decide to appeal the decision to furlough your position, please include all relevant facts and claims relevant to your particular circumstances.

IN REVIEWING THIS APPEAL GUIDEWHERE YOU SEE BLUE UNDERLINE, PLEASE CLICK THROUGH FOR MORE INFORMATION 2

WHAT IS THE MSPB?

The Merit Systems Protection Board is an independent, quasi-judicial agency in the Executive branch that serves as the guardian of Federal merit systems. In its oversight of the personnel practices

of the federal government, the MSPB hears and decides appeals of agency adverse actions. A

furlough of 30 days or less is considered an adverse action and may be appealed to the MSPB.

WWW.MSPB.GOV

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WHEN WILL THE MSPB OVERTURN AN AGENCY’S DECISION TO FURLOUGH

A furlough of 30 days or less must be undertaken for cause, promoting the efficiency of service.

A furlough will be overturned if it is deemed to be not in accordance with law or contain harmful procedural error.

NOTE: The agency has the burden of proving that it was justified in issuing the furlough. If the agency meets its burden of proof, the Board must decide in favor of the agency, unless you show that there was harmful error in the agency's procedures, that the agency decision was based on a prohibited personnel practice, or that the decision was not in accordance with the law.

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CLAIMS BEFORE THE MSPB RELATIVE TO THE DECISION TO FURLOUGH YOUR POSITION

Appellate Jurisdiction: Furloughs of 30 days or less are considered adverse actions 5 U.S.C. §7512 and are appealable to the MSPB.

Additional Jurisdiction: If applicable, you may make additional claims whens when appealing an adverse action. Additional claims can include: a claim that the action you are appealing, the furlough, was the result of a prohibited personnel practice 5 U.S.C. §2302(b); that the action violates Veterans Preference pursuant to the Veterans Employment Opportunities Act (VEOA); or that the action violates the Uniformed Services Employment and Reemployment Rights Act (USERRA). . You may also claim that the agency committed a harmful procedural error or that that the action is unlawful in its entirety.

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PROHIBITED PERSONNEL PRACTICESAn Appellant Who can Prove That He or She Was Treated Differently

Has a Higher Likelihood of Success

Unlawful Discrimination: A claim that the furlough action was based upon race, color, religion, sex, national origin, disability, age, marital status, political affiliation, genetic information and retaliation for prior EEO activity.

Retaliation for Whistleblowing Activity: A claim that the furlough action in retaliation for disclosure of information the Appellant reasonably believed demonstrates a violation of law, rule, or regulation, gross mismanagement, gross waste of funds and retaliation for whistleblowing activity (i.e. participating in an investigation).

Retaliation for other Protected Activity: A claim that the furlough action was taken in retaliation for the exercise of a right such filing an appeal, complaint, or grievance.

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HARMFUL PROCEDURAL ERRORAND

NOT IN ACCORDANCE WITH THE LAW

Harmful Procedural Error: Error by the agency in the application of its procedures that it is likely to have caused the agency to reach a different conclusion than it would have reached without the error. 5 C.F.R. §1201.56(c)(3). (i.e. failure to provide required notice or opportunity to respond). NOTE: Although if the Agency fails to give you the required minimum of seven (7) days to respond to the proposed notice, or fails to give you a minimum of 30 days notice of the final determination is considered a procedural error, the Agency would most likely only be ordered to reissue the furlough, not to rescind it all together.

Not In Accordance with the Law: A claim that the agency’s action was unlawful in its entirety, that is, there is no legal authority for the action.

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EFFICIENCY OF SERVICE

As discussed previously, the action of furloughing an employee must promote the efficiency of service. The efficiency of service requirement relates to the 5th Merit System Principle – the right to an effective and efficient government.

In furloughing your position, Management will allege that the furlough promotes the efficiency of the service by avoiding a deficit of funds.

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WHEN MSPB WON’T OVERTURNIf the Agency successfully meets its burden, the MSPB will not overturn the furlough. The agency meets its burden by demonstrating that the furlough was a reasonable management solution to financial restrictions and that management selected the employees to furlough fairly. Clark v. Office of Personnel Management, 24 MSPR 224 (MSPB 1984). Therefore management’s discretion in conducting a short-term furlough will not be disturbed without a showing of disparate treatment among similarly situated employees. Clark. Further, MSPB decisions have upheld furloughs where Congress has specifically reduced funding in a certain area and furloughs have nonetheless been applied to all positions. Clark.

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WHEN TO FILE Appeal must be filed within thirty (30) days of the effective date of the furlough, which means the first furlough day served, of the adverse action, or within 30 calendar days after the date of receipt of the agency's decision, whichever is later.

Appeals that are filed early, before you have served the first furlough day, will be rejected as premature.

The filing date is determined by the date the appeal is postmarked, faxed, filed electronically, or submitted to a commercial delivery service.

Failure to timely file an appeal will most likely result in the MSPB dismissing the case unless you have a good reason for the delay. This is a very difficult standard to meet.

Please note: Some local contracts may allow for employees to file a grievance over the furlough, however, you may only file a grievance or an MSPB appeal, but not both. Your contract must allow for you to file a grievance over the furlough in order for you to do so and contains its own timelines that must be followed for the grievance to be valid. Please contact your local officials before filing a grievance over the furlough and review your CBA to determine any restrictions and timelines.

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HOW TO FILE Electronic Filing: MSPB provides an efficient e-filing system that allows the parties to file and access all documents relevant to the appeal. See www.e-appeal.mspb.gov

Filing by Mail, Fax, or Commercial Delivery: File Initial Appeal Form and supporting documents in hard copy form.

Documents to Include: Proposed and Final Decisions and SF-50 if available.

BE SURE TO SIGN YOUR APPEAL 11

WHERE TO FILE

http://www.mspb.gov/contact/contact.htm 12

PROCEDURAL REASONS THE MSPB MAY REJECT AN APPEAL

• The Appeal is premature • Filed by someone other than the Appellant without

authority• Appeal does not contain contact information for the

Appellant or Agency • Appeal does not contain a description of the action being

appealed and effective date• The Appeal is not signed • If filed by mail, the Appellant did not file two copies • Filed on wrong size (any size other than 8.5 x 11) paper • Employee filed a grievance over the issue (if applicable

under the Local’s CBA).

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APPEAL PROCESS

Broida, Writing for the MSPB, FELTG 200914

INITIAL CASE PROCESSING Acknowledgement Order (typically issued within few days of filing): •Sets forth responsibilities of the parties related to discovery, motions practice, attempts at settlement. •Reminds Appellant to request a hearing if so desired and not requested in initial appeal form •Although a form order, the acknowledgement order must be read carefully to ensure you are meeting the requirements set for by the administrative judge.

Show Cause Order: Typically issued when after initial review the Administrative Judge has reason to believe that the MSPB does not have jurisdiction and will request additional information from the Appellant. Appellant and/or Agency are required to provide additional evidence responsive to the order.

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AGENCY APPEAL FILE

Within 20 days of the Acknowledgement Order, the Agency provides the Administrative Judge and Appellant its response to the Appeal and the Agency Appeal File.

The Agency Appeal File will include documentary evidence by the Agency to support its action.

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DISCOVERY• Written Discovery Requests: Must be served on the Agency within

30 calendar days of the date of the acknowledgement order. When drafting and sending discovery, the documents or information you request should be relevant to the furlough and/or why you believe that the furlough of you is unlawful or contained a harmful procedural error.

• Depositions: A deposition is an interview on the record. While depositions can be helpful in some limited cases, it is not recommended that you attempt conduct a deposition in these instances unless you believe there is specific evidence that can only be shown through someone’s testimony and no documentation regarding the issue exists.

• Motions to Compel Discovery: Asks the judge to force the other side to respond. Must be filed within 10 days of the date the response to a written discovery request was due. Parties do not have authority to grant extensions of time.

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PREHEARING SUBMISSIONSPrior to a hearing, the judge will order that the parties supply him or her with pre-hearing submissions in preparation for the hearing and prehearing conference. Those submissions should:•Restate relevant facts•Reiterate all claims and defenses •Be a submission of all documentary evidence that you plan to rely upon in the hearing •Identify proposed witnesses and their expected testimony.

NOTE: You should be prepared to state why each witness and piece of evidence you provided in your prehearing submission is relevant to the case during the prehearing conference.

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THE HEARING

• The hearing is before an administrative judge• A transcript of the hearing is made through a court reporter• At the administrative judge’s discretion, you may present an

opening & closing statement• Each side will be allowed to present evidence, witness

testimony, and to cross examine the other’s sides witnesses • The judge may rule from the bench or issue a written decision a

short time after the hearing• If the Appellant/Employee fails to appear, the hearing will be

cancelled and decision issued on the record. If the Agency fails to appear, the Appellant/Employee will be allowed to present evidence.

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SETTLEMENT AND APPEALING THE DECISION

• Although you may always pursue settlement in an MSPB appeal and the MSPB generally encourages settlement, it is highly unlikely that an agency will be willing to discuss settlement of appeals over the furloughs. You may inquire with the agency representative over their desire to settle.

• If you are unsuccessful in your appeal, you may appeal the decision within 35 days after the date of the decision or within 30 days after you receive the initial decision, whichever is later, by filing a petition for review with the three (3) member Board in Washington, DC.

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RESOURCES (Click on the Link)

www.nagefederal.org WWW.MSPB.GOVINITIAL APPEAL FORMMSPB JUDGES’ HANDBOOK MSPB FREQUENTLY ASKED QUESTIONS

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