[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Notices]
[Page 48169]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23067]



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MERIT SYSTEMS PROTECTION BOARD


Opportunity to File Amicus Briefs in Cases Involving Possible 
Furlough of Administrative Law Judges

AGENCY: Merit Systems Protection Board.

ACTION: The Merit Systems Protection Board is providing an opportunity 
for interested parties to submit amicus briefs in a number of pending 
cases filed pursuant to 5 U.S.C. Sec. 7521 and 5 CFR 1201.131.

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SUMMARY: The Merit Systems Protection Board currently has seven pending 
complaints filed by separate agencies pursuant to 5 U.S.C. Sec. 7521 
and 5 CFR 1201.131. The basic premise of each complaint is that there 
is a possibility that Congress may not enact an appropriation or 
continuing resolution for fiscal year 1996 on or before October 1, 
1995, and that the resulting lapse in funding would necessitate the 
furlough of all agency employees, including administrative law judges. 
Therefore, the agencies are requesting that the Board make a finding 
that there is good cause for the imposition of a furlough action 
against each agency's administrative law judges.
    The Board also has a complaint filed by the National Labor 
Relations Board seeking permission to furlough its administrative law 
judges. The NLRB states in its filing that it anticipates its fiscal 
year 1996 budget will be insufficient to cover its present rate of 
spending, and that the furlough of its administrative law judges will 
thus be necessary to avoid deficit spending.
    The Board has issued orders in each of the eight cases noting that 
there is a question whether the procedure provided for by 5 U.S.C. 
Sec. 7521 is intended to cover the situations described in the 
agencies' complaints. Specifically, the Board has determined that there 
is a question whether a furlough which seven agencies allege would be 
necessitated by a lapse in funding caused by the failure of Congress to 
enact an appropriation or continuing resolution is the type of 
personnel action to which the protections of 5 U.S.C. Sec. 7521 need by 
applied. In the case of the NLRB, the Board has determined that there 
is a question whether a furlough allegedly necessitated by a cut by 
Congress in the agency's appropriation is an action to which the 
protections of 5 U.S.C. Sec. 7521 may be applied. In Horner v. 
Andrzjewski, 811 F.2d 571 (Fed. Cir. 1987), which involved furloughs 
under a similar statute, 5 U.S.C. Sec. 7513, the court recognized that 
not all furloughs are within the Board's jurisdiction. The court stated 
that where a furlough action is taken ``because an agency has no choice 
* * * it can reasonably be said that an agency did not `take an action' 
covered by Chapter 75.'' Id. at 576.
    In considering these questions, the Board is concerned with the 
possibility that the provisions of the Antideficiency Act (31 U.S.C. 
Secs. 1341, 1350) may be violated by any action the Board might take in 
declining to authorize an agency the right to furlough administrative 
law judges due to a lapse in funding caused by the failure to enact 
appropriation bills or a continuing resolution, or by Congress' failure 
to fund an agency at current budget levels. The Board is inviting any 
interested party to submit amicus briefs addressing these 
jurisdictional issues.

DATES: All briefs submitted in response to this notice shall be filed 
with the Clerk of the Board on or before September 22, 1995.

ADDRESSES: All briefs shall be captioned ``Administrative Law Judge 
Furlough Appeals'' and entitled ``Amicus Brief.'' Only one copy of the 
brief need be submitted. Briefs should be filed with the Office of the 
Clerk, Merit Systems Protection Board, 1120 Vermont Avenue NW., 
Washington, DC 20419.

FOR FURTHER INFORMATION CONTACT:
Shannon McCarthy, Deputy Clerk of the Board, or Matthew Shannon, 
Counsel to the Clerk, (202) 653-7200.

    Dated: September 13, 1995.
Robert E. Taylor,
Clerk of the Board.
[FR Doc. 95-23067 Filed 9-15-95; 8:45 am]
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