How to Fill Out Your MSPB Appeal Form

1. How to Fill Out Your MSPB Appeal Form DISCLAIMER: This is intended for AFGE use only.  The guidance offered herein does not address specific case facts nor is it intended to be a substitute for individualized legal advice.  Moreover, the guidance offered herein is general in nature and has been prepared solely in order to assist AFGE members fill out MSPB appeals for the purpose of challenging administrative furlough actions taken as a result of sequestration. 

2. Before you get started, you will want to have the following: • Your MSPB Appeal Form, Form 185 • Your Notice of Decision to Furlough • Your SP-50, Notice of Personal Action

3. Page 1: Instructions For Completing Your Appeal • The Time Limit section provides that you must have received a Notice of Decision furloughing you for 30 calendar days or less (or 22 workdays or less). • If you are a probationary employee you are not eligible to file an MSPB Appeal. • You can file an MSPB appeal by mail, fax, or personal delivery to the MSPB regional or field office responsible for your duty station. (List of Offices in Appendix B). • Class Appeals may not be filed electronically, so if you are filing a class appeal you may not submit your appeal online.

4. Part 1- Appellant and Agency Information This part of the form asks some general questions about your contact information, employing agency, and your position. •Question 1 –Enter your name as it appears on your SF-50. •Question 2 –Enter your current mailing address. •Question 3 –Enter the requested telephone numbers and your email address. You should make sure to use an email address that you regularly check and have good access to. You should be sure to notify the Board immediately of any change to your mailing address, phone number(s), or email address if change is made during the course of your Appeal.

5. Part 1- Continued… Question 4 –Provide the name and address of your agency. Questions 5-9 –These questions request specific information about your appointment with the federal government, such as employment status, job position, grade, etc. If you don’t know the answer to one or more of these questions, you should be able to find it on your SF-50. Question 10 –Indicate whether you were serving a “probationary, trial, or initial service period” at the time you received the furlough decision. Note: only non-probationary employees have adverse action appeal rights (i.e., the ability to appeal a furlough). Question 11 –Mark “Yes” to request a hearing on your appeal.

6. Part 2- Agency Personnel Action or Decision (non-retirement) This part of the form relates to your furlough in particular. Because you are not retiring, but are being involuntarily furloughed, you must fill this section out. We will fill out most of this together, and return to Question 16 later. • Question 12 –Mark “Furlough of 30 days or less”. • Question 13 –Enter the day you received the Notice of Decision to Furlough. The Notice of Decision is the final agency action and is different from the Proposed Notice of Furlough. • Question 14 –Enter the effective date listed in the Notice of Decision. This is the first day of your furlough • Question 15 –Mark “No” unless you and the Agency mutually agreed in writing to attempt to resolve this matter through alternative dispute resolution (ADR). For most people, the answer should be no.

7. Part 2- Continued… • Question 16 –This question asks why the agency’s decision to furlough you was improper, not in the efficiency of the service (which is the legal standard for challenging it), and/or a result of a harmful procedural error. The reasons will be different depending upon your circumstances, but you will come back to this question last to talk about some potential reasons that might apply to you and your case. • Question 17 –Mark “No” if neither you nor your Local has filed a grievance challenging your furlough action. If you have already filed a grievance challenging the Notice of Decision furloughing you, then you are probably prohibited from filing an MSPB appeal. You can challenge a final agency decision to impose an adverse action, such as a furlough, by filing an MSPB appeal or by filing a grievance but not both. You will be bound by the first type of action (MSPB appeal or grievance) that you choose to file.

8. Part 2- Continued… • Question 18 –Leave this question blankYou are not filing an IRA appeal. • Question 19 –In most cases this question should be left blank. Generally speaking, USERRA prohibits discrimination on the basis of military service and VEOA creates certain entitlements, (e.g., veterans’ preference for specific types of veterans). Due to the general and broad nature of sequestration furloughs, it is unlikely that such arguments or claims are applicable here. However, if you believe you have a claim under USERRA or VEOA, you should seek further assistance through your local and district offices. In addition, you may review the MSPB’s and DOL’s websites for more information on USERRA and VEOA appeals. Again, this depends upon your situation, but most people will leave this question blank.

9. Part 3-OPM or Agency Retirement Decision This part of the form is for employees appealing an Agency retirement decision; because you are filing a Decision to Furlough Appeal instead of a retirement appeal, you should leave this section blank. • Question 20 – Leave this question blank. You are not filing a retirement appeal. • Question 21 – Leave this question blank. You are not filing a retirement appeal. • Question 22 – Leave this question blank. You are not filing a retirement appeal. • Question 23 – Leave this question blank. You are not filing a retirement appeal. • Question 24 – Leave this question blank. You are not filing a retirement appeal. • Question 25 – Leave this question blank. You are not filing a retirement appeal.

10. Part 4- Designation of Representative • This part of the form is where you state whether or not a representative has agreed to represent you before the Appeals. • You should not designate an individual or a union as your representative in your MSPB appeal unless you have directly received permission to do so from the individual or union in writing. • Because the number of appeals will be in the hundreds-of-thousands, AFGE cannot act as representatives in each appeal; however, AFGE will continue to provide guidance.

11. Part 5-Certification • This is the part of the form where you sign and date your appeal. • You are almost done, but let’s go back and revisit question 16…

12. Ideas for Potential Arguments -Question 16 • Each individual furlough appeal will be for different reasons, and your answer to Question 16 should be unique to your circumstance and experience. • Why was your furlough in particular not in the efficiency of the service? One important thing to remember while responding to this question is that for each claim you make that the Agency was wrong to furlough you, you will be asked to provide evidence at your MSPB hearing to support that claim. So, what sorts of things might be reasons? That depends on your individual circumstance. • Some examples of reasons your furlough might not have been in the efficiency of the service include…

13. Ideas for Potential Arguments -Question 16, Continued… (1) Employees in agencies affected by Secretary Hagel’s decision to overrule subordinate DOD agencies’ furlough decisions may raise the argument that the furlough does not serve the efficiency of the service because the employing agency has publicly stated that furloughs are not necessary.

14. Ideas for Potential Arguments -Question 16, Continued… (2) Employees in agencies where the furlough of employees was not necessary may raise the argument that the furlough does not serve the efficiency of the service because the furlough was not necessary and provide the specific reasons for that claim.

15. Ideas for Potential Arguments -Question 16, Continued… (3) If you have evidence your agency furloughed employees (a) but the agency was not subject to sequestration, or (b) the furloughs were not required based on the individual financial circumstances of the agency for example, if the agency had already made any required spending reductions), or (c) the furloughs were otherwise unnecessary, then you may argue that the contested furlough action does not, as a result, promote the efficiency of the service. Again, include specific facts and allegations.

16. Ideas for Potential Arguments -Question 16, Continued… (4) If you are a DoD employee and your work has been directly converted to contractor performance while you are on furlough, you may be able to argue that your furlough is improper because it violates procurement law. Procurement law provides that no function of the DoD performed by DoD civilian employees may be converted, in whole or in part, to performance by a contractor unless the conversion is based on the results of a public-private competition that complies with Office of Management and Budget Circular A-76 or similar competition. • In addition, a function being performed by DoD personnel cannot be modified, reorganized, divided, or in any way changed for the purpose of exempting the conversion of the function from this requirement. Finally, the Secretary of Defense may not conduct a public-private competition, including one under A-76, without first assigning the function to civilian employees, converting the function to civilian performance, or expanding the scope of the function to civilian performance. • So, if you have evidence that your work is being performed by a contractor or will be performed by a contractor while you are on furlough, you may argue in an MSPB appeal that the furlough does not promote the efficiency of the service because the furlough is contrary to law under 10 U.S.C. § 2461 and 10 U.S.C. § 2463. • If you raise this argument, you should be prepared to conduct discovery related to whether your work is, in fact, being performed by a contractor during the furlough period.

17. Ideas for Potential Arguments -Question 16, Continued… (5)DoD employees you may also argue that their furloughs is improper if they have evidence that their agency (such as the Department of the Army or the Department of the Navy), component or activity stated or made a determination that furloughs were unnecessary and/or would not be pursued but were then required to furlough employees at the direction of the Secretary of Defense. • You may argue, among other things, that such furloughs do not promote the efficiency of the service because the Secretary of Defense’s decision to overrule the discretionary judgment of your subordinate agency was arbitrary and not based on the needs, or efficiency, of the Federal service. • For example, if you are furloughed by a component of the DoD and the only materials relied upon for effecting the furlough was a global memorandum and supporting materials issued by the Secretary of Defense (possibly on 5.14.2013), you may argue in an MSPB appeal that: (a) the furlough is procedurally defective (see below) because the employee was not provided with relied upon materials specific to your furlough action; and (b) that the furlough is substantively defective because the component failed to perform an individualized analysis to determine your furlough was necessary to promote the efficiency of the service.

18. Ideas for Potential Arguments -Question 16, Continued… (6) If you were furloughed without any advance notice or an opportunity to answer, you may be able to argue that the furlough does not comply with OPM regulations or the law. • OPM regulations require that advance written notice and opportunity to answer unless the furlough is due to unforeseeable circumstances. Unforeseeable circumstances would include sudden breakdowns of equipment, acts of God, or sudden emergencies requiring immediate curtailment of activities. This type of furlough is not the same as the administrative furloughs resulting from sequestration, and is unlikely to occur in the present circumstances. • But, even if you are furloughed under the emergency furlough provision, without notice and an opportunity to answer, you may be able to argue that the agency did not validly invoke this emergency furlough regulation because furloughs due to sequestration did not arise due to unforeseeable circumstances.

19. Ideas for Potential Arguments -Question 16, Continued… (7) If you were denied any of your procedural rights, all of which are provided for in detail in the MSPB Appeal Guidelines, available online on the AFGE Furlough Toolkit, you may also be able to raise the argument that the agency committed a harmful procedural error. • The MSPB defines harmful error as “[e]rror by the agency in the application of its procedures that is likely to have caused the agency to reach a conclusion different from the one it would have reached in the absence or cure of the error. You must prove that the error was harmful, meaning that it caused substantial harm or prejudice to your rights. • As a word of caution, this is a tough standard to meet. You will have to provide evidence that you were harmed and show how the procedural error affected the agency’s decision, demonstrating that the agency might not have furloughed you but for the procedural error. An example could be if an agency placed you in the incorrect competitive level.

20. Filing a Class Appeal to be a Member of a Class Action • If you wish to be a class appeal representative, you should do so as a part of your answer to Question 16. • Write “I am filing a class appeal on behalf of myself and all other similarly situated, non-supervisory employees who were furloughed by the [AGENCY] in 2013 in connection with sequestration.” • You should explain why your appeal applies to other members of your agency, component, organization, unit or competitive level. Include as much detail as you can concerning the identity of the class (who the similarly situated employees are) and the reasons why the appeal should be heard as a class appeal (for example: all employees received identical furlough proposals and decisions and the factual and legal issues are therefore likely to be the same or substantially similar). • You may also reference the MSPB’s class appeal regulation described below, 5 C.F.R. § 1201.27. • CLASS APPEALS MAY NOT BE FILED ELECTRONICALLY. CLASS APPEALS MUST BE FILED BY MAIL, FAX, OR PERSONAL DELIVERY TO THE APPROPRIATE MSPB REGIONAL OFFICE. See Appendix B of the MSPB Appeal Form for a list of regional offices and contact information

21. What to Expect After Filing • After the appeal is filed, you will likely begin to receive documents from the Administrative Judge assigned to your appeal. It is important that you diligently check the email address and mail address provided in your appeal for orders from the Administrative Judge. You need to read those orders/documents carefully and comply with them. • One of the first orders you will receive from the Administrative Judge is the Acknowledgement Order. It is critical that you read that order carefully and make note of any deadlines provided in that order. After you receive the Acknowledgment Order, you should seek discovery from the agency. • When engaging in discovery, you should seek information related to each argument that you raised against the furlough. For example, you may seek discovery regarding (a) the criteria used by the agency identifying which employees to furlough, (b) the process used by the agency for furloughing employees, and (c) the efforts made by the agency to identify means other than furloughs to accomplish any required spending cuts. • A sample discovery requests is available online with the Furlough Toolkit. The sample discovery provided by AFGE must be customized to fit the facts and circumstances of each appeal.

22. YOU ARE DONE Thank you for standing with each other and your union to fight against these unjust and unnecessary appeals.