Challenges to RIFs

A RIF action may be appealed by the employee to the Merit Systems Protection Board (MSPB) and then to court (the Federal Circuit Court of Appeals).  An employee who accepts an offer of assignment to another position may not appeal the RIF action to the Board. The exception to

MSPB review is if a collective bargaining agreement covers RIFs, the employee must use the negotiated grievance procedure, and may not appeal to the Board unless there is an allegation that the action was based on discrimination. 

1. Timing.  MSPB appeals must be filed during the 30-day period beginning the day after the effective EPA employeesdate of the RIF action.  If the negotiated grievance procedure is used, the timing and process will be set out in the collective bargaining agreement.

2. Basis for challenge.  The employee may challenge the asserted reason for the RIF (i.e. that it was not conducted for one of the reasons set out in the regulations) and/or that there was a “substantial departure” from applicable procedures.

Legitimate reason for a RIF.  An agency has complete discretion, and may not be challenged, concerning its decisions on the composition and structure of the work force. 

However, the employee may claim that the reason given for the RIF is not legitimate, i.e. there was not a legitimate reorganization, shortage of funds, etc. 

A RIF based on shortage of funds need not be based on an actual shortage of funds, if a budget shortfall is reasonably anticipated by agency management.  In fact, agencies must anticipate possible lack of funds given the requirement of 60-day notice to an employee before their separation date.

Compliance with regulations.  Agencies must apply the RIF regulations “uniformly and consistently.”  5 CFR 351.201(c).

A claim that the RIF regulations were not followed could include not properly establishing the competitive areas, competitive levels, the employee’s placement on the retention register or the provision of reassignment rights.

An employee may also claim that the real reason they were selected for separation was dissatisfaction with the particular employee (rather than the need to abolish the position), discrimination on the basis of race, gender, age or disability or retaliation for whistleblowing.

3. Burden of proof.  The burden is on the agency to prove by a preponderance of the evidence that the RIF regulations were properly invoked for one of the legitimate management reasons specified in the regulation, and when challenged, the agency also bears the burden of proving by a preponderance of the evidence that it properly applied RIF regulations, including as to the appellant's competitive area and competitive level, and proving that it properly afforded the appellant his assignment rights.

However, claims of discrimination or whistleblowing are affirmative defenses to the RIF, on which the employee bears the burden of proof.

As noted above, the very complexity of the RIF regulations and procedures provides many possibilities for challenges to their implementation in RIF actions.