MSPB Affirms Department of Defense Furlough Action
A Utility Systems Repairer-Operator (“USRO”) for the Department of the Navy was furloughed for six days based on “the extraordinary and serious budgetary challenges facing the Department of Defense” (“DoD”) for the remainder of Fiscal Year (FY) 2013, the most serious of which is the sequester that began on March 1, 2013.” The employee appealed the furlough to the Merit Systems Protection Board, arguing that the agency had in fact based the furlough action on his national origin (Mexican) and on his status as a 30 percent or more disabled veteran. The employee also claimed that his position is funded as part of a working-capital-funds service, where funding comes from charges and reimbursements for goods and services rendered, rather than from appropriated funds. The employee argued that his furlough proposal notice incorrectly stated that “a reduction in base budget funding for the Operation and Maintenance accounts, as directed by the Budget Control Act of 2011, and as amended by the American Taxpayer Relief Act of 2012” was an appropriate ground for his furlough, when he instead contends that his funding comes from working-capital funds, making him an “indirectly funded Government Employee,” and exempt from the aforementioned furlough. The MSPB administrative judge affirmed the agency’s decision to furlough the employee, holding that it was reasonable for DoD to “consider its budget situation holistically, rather than isolating each military department’s situation,” because of DoD’s authority to transfer appropriated working-capital funds from one account to others and that it was appropriate for DoD to conserve working-capital funds. The employee petitioned the full Board for review. On October 2, 2014, the Board affirmed the administrative judge’s initial decision as modified.