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MSPB will not issue furlough-related advisory opinions

The Merit Systems Protection Board (MSPB) has informed a union representing numerous workers within the Department of Defense (DOD) that it would be unable to respond to a request for an advisory opinion on the likelihood of its members succeeding with appeals related to furloughs.

The MSPB noted that it is prohibited by law from issuing advisory opinions. An advisory opinion is issued by a court prior to actual litigation, and is used to provide parties with advance notice of how a court may rule on a particular issue. Courts tend to disfavor granting advisory opinions, because in many cases, as with the MSPB, they may be prohibited from issuing such rulings and because courts prefer to have an actual case or controversy, where all the facts and evidence are brought to the court before it makes a ruling.

While the MSPB is not technically a court, it is responsible for the adjudication of adverse personnel actions issues for federal government workers. The International Federation of Professional and Technical Engineers had asked for the opinion to clarify questions regarding unpaid furloughs of civilian Defense Department employees. They asked the MSPB, "whether or not the department’s workers could prevail at the MSPB is they experience a furlough."

Questions of fairness in how furloughs are allocated within agencies are a significant question. Defense Secretary Chuck Hagel has requested that furloughs be applied equally across the civilian workforce, but that may not ensure that they in fact are issued fairly. DoD employs 800,000 civilian employees, so there is potential for a large number of appeals to the MSPB.

The MSPB currently has 98 furlough appeals pending, and is uncertain if it will see a significant increase in filings due to furlough-related issues.

Source: Government Executive, "MSPB Rejects Union’s Plea for Advisory Opinion on Furloughs," Kellie Lunney, May 14, 2013

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