MSPB Establishes Fundamentals of Furlough Law Via Analysis of Discovery Requests
by Natania Davis
The Board recently published two furlough opinions. Dept. of Labor v. Avery, 2013 MSPB 75 (Sept. 18, 2013), and Chandler v. Dept. of Treasury, 2013 MSPB 74 (Sept. 18, 2013).
Dept. of Labor v. Avery involves the law governing ALJ furloughs. The short of that decision is that an agency may furlough an ALJ only for "'good cause' as determined after a hearing by the Board." The agency must show by preponderant evidence that it had sound business reasons behind its decision to furlough the ALJ employee. A decision to furlough may not be made for an improper reason or interfere with an ALJ's qualified judicial independence.
The more telling decision in terms of the Board's plans for furlough law is Chandler v. Dept. of Treasury, wherein the Board set forth the standard of review and resolved discovery disputes. The opinion, however, went far beyond discovery disputes and laid out some basic principles for furloughs.
Standard of Review
To determine the proper standard of review, the Board in Chandler compared RIFs and furloughs. In finding RIF principles instructive in determining Board review and what "efficiency of the service" means in this context, the Board found:
Although the agency is always responsible for proving that an adverse action promotes the efficiency of the service, we find that the analysis of this issue must depend on the problem that the adverse action was meant to address. Furloughs are unique among adverse actions because by definition they are taken for nondisciplinary reasons and are generally used to address work or funding shortages or other matters that are not personal to the affected employee. 5 U.S.C. § 7511(a)(5); cf. Butler v. Department of the Interior, 10 M.S.P.R. 25, 27 (1982) (a RIF action may be invalid if motivated by reasons personal to the employee). The Board has found that an agency satisfies this standard in a furlough appeal by showing, in general, that the furlough was a reasonable management solution to the financial restrictions placed on it and that the agency applied its determination as to which employees to furlough in a "fair and even manner." Clark v. Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984). By "fair and even manner," we take the Board's decision in Clark to mean that the agency applied the adverse action furlough "uniformly and consistently" just as it is required to apply a RIF. See 5 C.F.R. § 351.201(b). This does not mean that the agency is required to apply the furlough in such a way as to satisfy the Board's sense of equity. Rather, it means that the agency is required to treat similar employees similarly and to justify any deviations with legitimate management reasons. See 5 C.F.R. § 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."). Which employees are similarly situated for purposes of an adverse action furlough will be decided on a case-by-case basis, but the Board will be guided by RIF principles in making that determination. See id. (applying RIF competitive level principles to adverse action furloughs).
Forecasting a hands-off approach, the Board noted that service efficiency does not include agency spending decisions per se (even spending on personnel matters) or an agency's allocation of furlough days in a certain manner among employees who are not similarly situated.
Applying the standards set forth above, the Board turned to the discovery disputes.
Discovery requests disallowed by the Board as irrelevant and not reasonably calculated to lead to relevant evidence because they pertained to agency spending matters were:
- information related to employees hired since the time the agency announced its intention to conduct a furlough;
- information related to the cost of conducting the furlough;
- information related to the expenditures for conferences and training;
- information related to alternatives to furlough that were considered "including allowing employees to select their furlough days, allowing employees who want to serve furlough days for other employees to do so, and soliciting the input of bargaining unit employees into the furlough decision"; and
- information related to the projected allocations of funding for 2011, 2012, and 2013, and actual expenditures for those years.
Discovery requests allowed as relevant and not pertaining to spending were:
- information related to employees paid overtime since the time the agency announced its intention to conduct a furlough; and
- information about whether some agency employees were afforded bonuses for the purpose of compensating them for income lost by the furlough.
Discovery requests allowed relating to the manner in which the agency allocated furlough days:
- information related to the identity of nonbargaining unit employees who were not furloughed and to the payment of overtime to nonbargaining unit employees.
Discovery requests disallowed relating to the manner in which the agency allocated furlough days:
- information relating to whether some employees were allowed greater flexibility than others in scheduling their furlough days; the Board reasoned that this request pertains to management decisions regarding the scheduling of furloughs.
Other discovery requests:
- allowed as relevant to issues of due process and harmful procedural error: information regarding the specific process employed under 5 USC 7513 by the agency
- disallowed as irrelevant: any information about the application of the Douglas factors to the appellant's furlough
- allowed: information related to an Executive Order directing the agency to conduct a furlough
The Board essentially punted a request for information related to the hiring of certain contract employees since the furlough announcement, noting that the appellant failed to establish any connection between her position and the individuals listed.
As to two discovery requests, the appellant argued that the information was necessary to determine whether the agency conducted the furlough in a manner that "best" promoted efficiency of the service. The Board noted its review limitations:
It is beyond the scope of Board review whether the furlough was conducted in a manner that best promotes the efficiency of the service. There are many ways in which agency management could have structured the furlough, and it is not the Board's place to select from among them. Rather, the issue before the Board is whether the furlough was "in general" taken for such cause as promoted the efficiency of the service..."
Vice Chairman Wagner wrote a separate opinion, concurring in part and dissenting in part, to which Chairman Grundmann essentially wrote a response. They are both worth reading.
For more on MSPB law and discovery practice, see A Guide to MSPB Law and Practice by Broida, MSPB Case Summaries by Broida and Davis, and MSPB Discovery Forms by Broida. All available as pdf. e-books.