Instructions for Filing an Appeal with the Merit Systems Protection Board

Instructions for filing an appeal with the Merit Systems Protection Board

The Union recommends you file a paper/mailed appeal. The MSPB Appeal form is available at The online appeal does not provide adequate space to tell what happened and only provides very limited ability to attach additional information.

Forms must be filed within 30 days of the effective date of the furlough.

(approx, by the 8 Aug 2013).

Include with your submission a copy of your “Notice of Proposed Furlough” letter, your “Notice of Decision to Furlough” letter and a copy of your furlough SF-50. Label your Notice of Proposed Furlough as Reference (a). Reference (e) can be found at and should be labeled Reference (e) when you include it with your submission. Code 1100 printed everyone’s SF-50s and distributed them to the Departments. Employees should be able to get a copy from their supervisor. If your supervisor does not have your SF-50, please contact Toni Auen at 757-443-3872 ext. 4129.

Mail your entire appeal package to the MSPB at the address listed for your area in Appenix B of the appeal form. For those of us living in the New York area, send your appeal to;

MSPBNew York Field Office

26 Federal Plaza, Room 3137-A,

New York, NY 10278-0022

Tel. No.: (212) 264-9372; Fax No.: (212) 264-1417 for any questions.

Block 1-3 Fill in your personal information.

Block 4Agency Name: Department of the Army

Bureau:US Army Corps of Engineers

Address:26 Federal Plaza

City:New York

State: NY

Zip Code:10278

Phone:917-790-8000

Block 5 Check “Permanent”

Block 6 Check “Competitive”

Block 7/8 Fill in as it appears on your SF-50

Block 9 Fill in years/months of service

Block 10 Check “No”

Block 11 Check “Yes”

Block 12 Check “Furlough of 30 days or less”

Block 13 Date of your final decision letter from the Executive Director.

Block 14 Use the effective date from your decision letter. For most it will be July 8, 2013

Block 15 Check “No”

Block 16 Enter “Please see attached”

Block 17 Check “No”

Block 18-26 Leave blank.

Sign and date the bottom of the form.

Block 16

Subj: APPEAL OF AGENCY DECISION TO FURLOUGH

I am requesting my remaining furlough days be cancelled and I should receive back pay for the furlough days that I have already served for the reasons detailed below.

Ref: (a) Proposal to Furlough, and Decision to Furlough

(b) 5 CFR Part 752, Subpart D

(c) 5 U.S.C., Section 2302

(d) 5 U.S.C., Section 2301

(e) SECDEF Memo dated 14 May 13 (Furloughs)

1. Based on my review of reference (a) and the related supporting documents, I submit that the proposed furlough is in direct violation of references (b) and (c). Further, the rationale for this action amounts to a prohibited personnel practice in that it violates reference (d) which states in part “employees should be protected against arbitrary action, personal favoritism, or coercion for partisan political purposes.”

2. Reference (b) provides that “an agency may take an adverse action under this subpart only for such cause as will promote efficiency of the service” (paragraph 752.403(a)). In this use, efficiency is most reasonably related to agencies performing or functioning in the best possible manner with the least waste of time and effort. In terms of efficiency, the Department of the Army, has on multiple occasions in various public forums, expressed its position that it does not need to implement a furlough in order to meet sequestration budget reduction. Hence, the Secretary’s decision to impose a civilian furlough arbitrarily across the entire Defense Department is not legal per paragraph 752.403(a) of reference (b). Since Army leadership has determined that it is able to achieve applicable sequester budget reductions without taking the proposed action, a furlough of Army civilians is not necessary and therefore does not promote efficiency of the service.

3.The proposed action is especially contrary to prudent implementation of sequestration since the armed forces do not employ the same number of people, are not allocated the same amount for their respective operating budgets, and are not directed to trim their budgets by the exact same sequester amount. The individual services financial posture is determined by their portion of the defense budget as it relates to service-specific missions and priorities. Though actions such as a hiring freeze, furlough, or reduction-in-force (RIF) may be necessary for one service at any given time during a budget execution year, those same actions may not be required for another service. Historically, the Defense Department has not applied such actions arbitrarily, leaving it up to the individual services to implement those actions necessary to stay within their respective operating budgets. The same approach should be applied even when that budget is adjusted mid-stream. Consequently, to apply this action arbitrarily across all branches, on the basis that it achieves consistency even though the individual services are already not consistent, both creates disparate impact for Army employees and is discipline in disguise. As aArmy civilian, I am being punished for the fiscal posture of the other services and the failure of Congress to act. I am being treated unequally by suffering an unnecessary loss of 20% of my pay as a result of budgetary decisions made by the other armed services relative to how they respond to sequester.

4. Ultimately, it is widely recognized that sequestration is a consequence of coercion for partisan political purposes, the effects of which were known by the parties involved before it became law. Those actions placed Army civilians at the peril of partisan politics. Hence, if the sequester is the result of coerced partisan political theater, the totality of effects of its implementation are also tainted by coerced partisan politics which is a direct violation ofreference (c).

5. The Secretary provides three primary reasons in support of his decision to furlough the majority of civilians within the Department: the desire to achieve consistency, fairness, and protecting the Department from adverse mission effects. Though such action may achieve some level of consistency across the Department in terms of how the furlough is applied, per reference (e), the Secretary has already determined that specific categorical exceptions to the furlough exist. Among them, employees in Navy shipyards, both general shipyard workers and nuclear and Naval Reactors staff, are excepted. All together the Secretary has excepted from furlough some 44,071 Navy civilians, 7,740 Army civilians, and 4,291 Air Force civilians for a total of 56,102 employees. In doing so, the Secretary has violated reference (c) by granting employees preference or advantage not authorized by law, rule, or regulationin how the furlough is applied.

6. In reference (e), the Secretary also asserts that the number of furlough days reflects “vigorous efforts to meet budgetary shortfalls through actions other than furlough.” Conversely, the rigor applied to all facets of the decision to furlough appears to fall short of this assertion. It is unreasonable to conclude that vigorous efforts to avert a furlough would cause civilian employees of the Army, hence me, to suffer that consequence due to a budget shortfall within another branch of the Armed Forces. Especially, when, according to Army officials, the Army has been successful in its efforts to find an alternative to such action. If this action is upheld, it would equate to a total disregard of the Army’s vigorous efforts to avoid this measure, inflicting unnecessary harm on myself and other members of the Army’s workforce. Such action amounts to a failure to use the workforce efficiently and effectively and is a violation of reference (d).

7. Further, the DoD has sought authority from Congress to reprogram funds in order to give the Department more flexibility to mitigate the impact of sequestration. Presumably, the Secretary has requested this authority as part of the aforementioned “vigorous effort” to avoid a furlough. The fact is the Army has already harnessed its available flexibilities to avert a civilian furlough, but for the Secretary’s desire to arbitrarily inflict this remedy across the entire Department.

8. Congress has provided enough money in the Operations and Maintenance (O&M) account to avoid furloughs. In March of 2013, Congress came to an agreement on the Fiscal Year 2013 (FY13) spending bill. As part of that agreement, lawmakers proactively transferred more than $10 billion from the DOD procurement and R&D account to the Operations and Maintenance (O&M) account, the account that money to pay workers like myself come from. Originally DOD had said that it needed to furlough workers a total of 22 days to save $5 billion. By proactively transferring more than $10 billion, DOD had more than enough salary money to avoid furloughs and still had an additional more than $5 billion to cover the impact of sequester to the O&M account. In fact, it is this transfer flexibility granted to DOD that has allowed the department to reduce the amount of furlough days from 22 to 11.

9. The Intent of Congress is that DOD use the additional money provided by the FY13 spending bill to avoid furloughs. Many lawmakers have said as much publicly and many have written letters to the Secretary of Defense to urge him to do so. The below quotes are from letters from Congresswoman Hanabusa (Apr 1), Senators Susan Collins and Angus King (Apr 17), and 126 members of the U.S. House of representatives (Apr 23). Some notable quotes:

• “I urge you to use all available flexibility that comes from cuts being at the program level within the Operations & maintenance accounts, versus on the account level” – Congresswoman C. Hanabusa
• “…we strongly urge the department to make merit-based versus indiscriminate decisions on furloughs … that managers be allowed the discretion to make offsetting cuts to comply with sequestration” - 126 members of the U.S. House of representatives
• “If the Department of the Army or any other DOD component has determined that the costs of furloughs to its readiness and budgets are greater than the savings they would produce, they should be able to avoid them … we stand ready to consider such supplemental requests so that you do not have to borrow from the resources provided in DOD’s base budget.” - Senators S. Collins and A. King

10. The Army has made numerous statements that it does not need to furlough its civilian employees and that furloughs will be disruptive and result in increased costs instead of savings. This is in stark contrast to the requirement of 5 CFR 752.403(a)“an agency may take an adverse action under this subpart only for such cause as will promote efficiency of the service.” Taking an action that will increase costs (furlough) cannot be claimed to promote the efficiency of the service.

11. Under sequester the availabilities scheduled for late in the fiscal year were cancelled. Upon analysis of the impact on readiness, Congress reinstated funding for those availabilities. Since funding for those availabilities was reinstated it is paramount that our personnel not be furloughed or the command will not meet its obligations as the Army Supervising Activity. The reinstated funding for those availabilities also included funding for administration and oversight of those contracts, duties performed by the civilian personnel.

12.Finally, it is well documented that the Chief Executive of the U.S., as well as Congressional leaders, believes that sequestration is a measure of last resort, designed to force Congressional action in order to avoid its actual implementation. President Obama has stated

“the whole design of these arbitrary cuts was to make them so unattractive and unappealing that Democrats and Republicans would actually get together and find a good compromise of sensible cuts as well as closing tax loopholes and so forth. And so this was all designed to say we can't do these bad cuts; let’s do something smarter. That was the whole point of this so-called sequestration" (

This acknowledgement by the President and others in Congress places the proposed action in direct violation of reference (c). The sequester may be characterized as a gross mismanagement of deficit reduction strategies by Congress. By extension thereof, the proposed furlough of Army civilians while not absolutely necessary is in fact a personnel action being directed by the Secretary against Army employees that is in effect gross mismanagement.

13.This furlough is unnecessary in the respect that NO BUSINESS CAUSE exists which necessitates it. The US Army Corps of Engineers (USACE) has expressed that the USACE has sufficient funding available (previous year carry over funding, paid leave accounts, etc) to avoid furloughs.

14.Additionally, no supporting information has been provided which demonstrates that USACE is experiencing a lack of funds or lack of work. Pursuant to 5 C.F.R. § 752.404, the Agency is required to provide access to materials relied upon by the Agency to support the furlough decision. To the contrary, the data available suggests that even without a furlough, our command will struggle to meet tasking obligations and year end activities without significant overtime in the near future. Use of overtime in this instance would constitute transferring of income from a furloughed employee to a non-furloughed employee and is totally unfair. The absurdity of anyone working overtime before, during, or after a furlough period is beyond comprehension and demonstrates that no business reason exists for this furlough.

15.The Secretary of Defense memorandum, subject: Furloughs, attachment entitled Department of Defense Furlough Exceptions, line item i) states

“Any employees who are not paid directly by accounts included in the Department of Defense-Military (subfunction 051) budget are excepted from furlough. For example, this would include employees funded by Arlington National Cemetery (705 function) and DoD Civil Works (various non-051 functions) programs. Furloughing these employees would not reduce the expenditure of DoD budgetary resources and so would not assist in meeting sequestration reductions.”

Based on this memorandum, it is clear that the furlough is intended to meet sequestration reductions and furloughing of an individual in which the furlough will not serve that purpose is both arbitrary and capricious. 5 CFR part 752, subpart D defines “Furlough” as the placing of an employee in a temporary status without duties and pay because of lack of work or funds or other nondisciplinary reasons. Subjecting me to furlough days would not further reduce the Department of Defense’s budget and also does not meet the definition of Furlough as my position neither lacks work nor lacks funding.

16.I am being treated differently than other employees in the district. An employee in the district working on the same program as myself, using the same labor codes and funds appropriation, will not be furloughed because their positions happened to be classified as a “Civil” funded positions. Pursuant to 5 CFR 752.404(b)(2) "when some but not all employees in a given competitive level are being furloughed, the notice of proposed action must state the basis for selecting a particular employee for furlough, as well as the reasons for the furlough." Here, the Agency has failed to meet this obligation under the regulation because the Agency has not stated the basis for selecting me for furlough.

17.I have also reviewed the supporting information provided, and have noticed that there is no statutory requirement to furlough civilian employees. While the notice states that this proposed furlough is due to sequestration, there is no language written into any of the laws related to sequestration that require employee furloughs. As such, this proposed action is solely the result of a policy guidance being enacted by the Secretary of Defense.

The Secretary of Defense, by implementing this policy guidance, has committed two prohibited personnel practices in violation of the following Merit System Principles: the Federal work force should be used efficiently and effectively (5 USC § 2301(5)); and, Employees should be protected against arbitrary action, personal favoritism, or coercion for partisan political purposes (5 USC § 2301(8)).

This policy has required you and our command to engage in activity which is wasteful, in that no savings will be generated by this furlough, since USACE has the ability to fund our activities. This is in stark contrast with the requirement that the federal workforce be used efficiently and effectively. Additionally, as documented in the media, this furlough is being administered throughout the Department of the Defense in order to “Spread the Pain across the Department”. This action being taken, by the Secretary of Defense, is out of personal animosity against all Civilian Employees and his desire to “spread the pain” evenly among all services regardless of each component’s financial situation.

In Deborah Morgan v. U.S. Postal Service (1991), the Merit Systems Protection Board (MSPB) clarified matters by noting that “[a]n adverse action promotes the efficiency of the service when the grounds for the action relate to either an employee’s ability to accomplish his duties satisfactorily or to some other legitimate government interest.”

18.This furlough does the exact opposite of promoting the efficiency of the service, that it serves no legitimate public or government interest, and it prohibits an employee from accomplishing his/her duties satisfactorily.

19.This furlough is also not being fairly administered as evidenced by the exemption issued to Civil Works authorization funded positions in USACE. The process for how personnel were assigned to specific appropriations is also unclear and appears to be arbitrary at best. It is also unclear whether or not persons can be partially funded and thereby have some of their furloughed time relieved. Additionally, other entities within the Department of Defense have been exempted due to political and financial reasons, such as sexual assault and prevention workers. This demonstrates that the motivations for exemptions are largely political in nature and are clearly not due to a lack of funds or legitimate business reasons. This decision has been arbitrarily made and is providing a preference to employees whose job, while classified differently, is in fact not funded any differently than mine. Based on this, the action of furlough is discriminatory and punitive.