Budget-Related Furloughs in Today's Federal Government: Making the Case for Reforming the Civil Service Reform Act of 1978
Open AccessThe recent spate of federal employee furloughs necessitated by sequestration and the government shutdown brings to the forefront the need for Congress to consider reforming the Civil Service Reform Act of 1978 (CSRA), and for the Executive to amend its implementing regulations and revise its current policy. Grappling with over 32,400 appeals from agencies' sequestration-related furlough decisions alone, the small Merit Systems Protection Board (MSPB) has borne the overwhelming brunt of the outmoded and unintended congressional classification of budget-related furloughs as "adverse actions" under the CSRA. This is unsustainable from both an administrative burden and taxpayer expense standpoint, given that these furloughs are nondisciplinary and non-personal in nature, and result wholly from budgetary crises outside the control of agency decision-makers.This thesis examines the legislative history surrounding the CSRA, which highlights the questionable inclusion of budget-related furloughs therein. It also explores the factual and legal similarities between the emergency/shutdown furlough and the sequestration furlough, which the United States Office of Personnel Management (OPM) has inaptly designated as an "administrative furlough." The author examines the lessened due process framework associated with the emergency/shutdown furlough, and argues that, at a minimum, the same should apply to the sequestration furlough. To this end, a recent MSPB decision supports the proposition that the two budget-related furloughs should be merged into one, diminished due process structure.This thesis outlines reasons why Congress should amend the CSRA, carving out of its provisions altogether the budget-related furlough. The myriad ambiguities and divergences in the law, regulation and policy demonstrate the need for such change. In the alternative, OPM should amend its emergency furlough regulation and policy, supplementing them with a comparable lessened due process framework for sequestration-related furloughs. Furthermore, complete rescission of OPM's administrative furlough guidance is warranted.
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