STEVEN B. BERLIN, JONATHAN C. CALIANOS, LINDA S. CHAPMAN, RICHARD M. CLARK, WILLIAM R. DORSEY, JENNIFER GEE, COLLEEN A. GERAGHTY, CHRISTINE L. KIRBY, PAMELA J. LAKES, TIMOTHY J. MCGRATH, RICHARD A. MORGAN, RUSSELL PULVER, STEPHEN M. REILLY, PATRICK M. ROSENOW, DANIEL F. SOLOMON, DANIEL F. SUTTON, DREW A. SWANK, AND THERESA C. TIMLIN, Petitioners,
DEPARTMENT OF LABOR, Respondent
Petitions for review of the Merit Systems Protection Board in Nos. CB-7521-13-0072-T-1, CB-7521-13-0074-T-1, CB-7521-13-0075-T-1, CB-7521-13-0076-T-1, CB-7521-13-0079-T-1, CB-7521-13-0080-T-1, CB-7521-13-0081-T-1, CB-7521-13-0087-T-1, CB-7521-13-0089-T-1, CB-7521-13-0093-T-1, CB-7521-13-0095-T-1, CB-7521-13-0098-T-1, CB-7521-13-0100-T-1, CB-7521-13-0102-T-1, CB-7521-13-0106-T-1, CB-7521-13-0108-T-1, CB-7521-13-0109-T-1, and CB-7521-13-0110-T-1.
PAUL A. MAPES, of Walnut Creek, California, argued for petitioners.
ALLISON KIDD-MILLER, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent. With her on the brief were STUART F. DELERY, Assistant Attorney General, ROBERT E. KIRSCHMAN, JR., Director, and REGINALD T. BLADES, JR., Assistant Director. Of counsel on the brief were JAMES V. BLAIR, Counsel for Employment Law and KATHERINE BREWER, Trial Attorney, Office of the Solicitor, United States Department of Labor, of Washington, DC.
MARTIN R. COHEN, Assistant General Counsel for Litigation, American Federation of Government Employees, of Elkins Park, Pennsylvania, for amicus curiae The American Federation of Government Employees.
GREGORY O'DUDEN, General Counsel, National Treasury Employees Union, of Washington, DC, for amicus curiae National Treasury Employees Union. With him on the brief were LARRY J. ADKINS, Deputy General Counsel, and MATTHEW D. ROSS, Assistant Counsel.
JOHN P. MAHONEY, Tully Rinckey, PLLC, of Washington, DC, for amicus curiae The Federal Administrative Law Judges Conference.
Before DYK, TARANTO, and HUGHES, Circuit Judges.
Taranto, Circuit Judge.
Under 5 U.S.C. § 7521, an agency may furlough an administrative law judge (ALJ) for 30 days or less " only for good cause established and determined by the Merit Systems Protection Board" in a formal adjudication. In this case, the Board determined that the Department of Labor had good cause for its decision to furlough its ALJs for a particular length of time in 2013. We affirm. The challenged furlough of ALJs, which was part of a program of furloughs throughout the Department and indeed throughout the federal government, was the result of a neutral, reasonable, statute-based determination about how to implement a government-wide budget sequester. The Board could therefore find good cause.
The Budget Control Act of 2011, Pub. L. No. 112-25, § § 101-103, 125 Stat. 240, 241-46, and the American Taxpayer Relief Act of 2012, Pub. L. No. 112-240, § 901, 126 Stat. 2313, 2370, made amendments to the Balanced Budget and Emergency Deficit Control Act of 1985, Pub. L. No. 99-177, title II, 99 Stat. 1038, codified in pertinent part at 2 U.S.C. § 901 et seq. The amendments established spending limits for agencies of the federal government and required automatic reduction of spending (" sequestration" or " sequester" ) under certain statutory conditions, implemented under certain directives of the Office of Management and Budget (OMB). The 2012 Taxpayer Relief Act (§ 901(e)) specifically required the President to issue a sequestration order on March 1, 2013, near the middle of fiscal year 2013. 126 Stat. at 2370.
On that date, President Obama issued a sequestration order requiring reductions in spending from most federal budget accounts for fiscal year 2013. 78 Fed.Reg. 14,633. The order states that each agency must administer the spending cuts, for " each non-exempt budget account," " in strict accordance with the requirements" of 2 U.S.C. § 901a " and the specifications of [OMB's] report of March 1, 2013, prepared pursuant to" § 901a(9). 78 Fed.Reg. 14,633. Section 901a mandates compliance with another statutory provision, 2 U.S.C. § 906(k), which provides that " the same percentage sequestration shall apply to all programs, projects, and activities within a budget account." 2 U.S.C. § § 901a(8), 906(k)(2).
OMB, performing its statutory role, calculated that the Department of Labor had to reduce spending by five percent in a budget account called the Departmental Management Salaries and ...