MSPB EXHUMES ITS “MANIFEST ABSURDITY” DOCTRINE
How ironic that just a few short months after stripping federal employees of any right to challenge the substance or design of a furlough, suddenly the Board is concerned with absurdities. The case involved an employee who was fired for being physically unable to work for a prolonged period of time. Wren v. Dept. of Army, 2014 MSPB 20 (2014)
About two months after being fired his doctor declared him fit to return to work, and the employee demanded that the agency consider these new facts and reinstate him with back pay. When the agency refused, he appealed pointing to Morgan v. US Postal Service, 48 MSPR 607 (1991) as precedent for his claim.
As in Morgan, the Board began its analysis in Wren proclaiming that, “The Board, as the ‘last voice’ in the Executive Branch, must avoid the manifest absurdity of upholding a removal for physical incapacitation when intervening events show that the appellant is no longer incapacitated and, thus, removal cannot promote the efficiency of the service.” Putting aside that the President and Attorney General might disagree that MSPB outranks them in the Executive Branch, it strikes us that the Board may not understand the definition of absurdity. Most dictionaries work with these meanings: ridiculously incongruous or unreasonable, wildly unreasonable, having no rational relationship to human life.
But, if the Board says it is a manifest absurdity to uphold a removal that was legitimate at the time it was imposed, but not based on evidence generated after the appellant was no longer a federal employee who are we to disagree? It sounds like the humanitarian thing to do and quite considerate to order the agency to give the employee back pay for the time he admittedly was unable to perform.
However, it does strike us as absurd, bizarre, ludicrous, farcical, daft, and outright vicious that former federal employees have the rights described above while current employees furloughed for up to 30 days a year just had any effective appeal rights stripped from them by a MSPB decision (Chandler v Dept. of the Treasury, IRS, 2013 MSPB 74 (2013) which held:
- Issues of fairness and the Board’s sense of equity are irrelevant in furlough situations, only the consistent treatment of similarly situated employees matters;
- The Board will not look at agency spending that might have led to the alleged budget shortfall or at alternatives ways to manage the shortfall;
- Agencies need not prove they had a budget shortfall by standard credible evidence because employees have the burden of proving the agency did not have one;
- The agency need not prove the furlough was the best response to the budget shortfall, the most reasonable one, or the only one; it only show that it was a reasonable response;
- Neither the length of the furlough, the scheduling of it, the selection of employees to be furloughed, nor the presence of possible alternatives that might better promote the efficiency of the service by doing less harm to the employees or public will be examined for their reasonableness;
- The tangible harm done to employees by scheduling the furlough time one way versus another, e.g., loss of leave, service credit time, agency health benefit contributions, etc., is irrelevant to the Board; and
- The tangible harm done to the public by the scheduling of the furlough one way versus another is irrelevant to the Board.
Of course, we could be wrong about what the Board will do based on Chandler. The Board has not had the chance to examine many different fact patterns to assess the validity of its Chandler statements. And Susan Grundman did respond to the Chandler dissent from Member Wagner with a comment that suggested “reasonableness’ might play a bigger role that the core decision suggests. But we are not wrong about the absurdity of the Board’s approach. If it considers itself the last line of defense against absurdity in federal personnel management it need look no further than at its own decision in Chandler.
If you are interested in other comments on the Board’s Chandler decision, see the following FEDSMILL posts:
And please remember that FEDSMILL is not providing legal advice through any of its postings; we merely claim to be working with logic, reason, and a sense of fairness. Find a competent attorney if involved in a furlough.