Johnathan Gajdos v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2014 MSPB 55

Docket No. SF-0752-13-1913-I-1

Johnathan Gajdos, 1

Appellant,

v.

Department of the Army,

Agency.

July 22, 2014

Johnathan Gajdos, Monterey, California, pro se.

Michael L. Halperin, Esquire, Monterey, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Anne M. Wagner, Vice Chairman

Mark A. Robbins, Member

Vice Chairman Wagner issues a separate, dissenting opinion.

OPINION AND ORDER

¶1 The appellant petitions for review of an initial decision that affirmed the

agency’s furlough action. For the following reasons, we find that the petitioner

has not established a basis under 5 C.F.R. § 1201.115 to grant the petition for

review. We therefore DENY the petition and AFFIRM the initial decision’s due

1

Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Army

Training Doctrine Command v. Department of the Army, MSPB Docket

No. SF-0752-13-4840-I-1.

2

process analysis AS MODIFIED by this Opinion and Order, still affirming the

furlough action.

BACKGROUND

¶2 On May 28, 2013, the agency issued a Notice of Proposed Furlough

informing the appellant, an Assistant Professor, that the Defense Language

Institute Foreign Language Center (DLIFLC) proposed to furlough him for no

more than 11 workdays due to “the extraordinary and serious budgetary

challenges facing the Department of Defense (DoD) for the remainder of Fiscal

Year (FY) 2013, the most serious of which is the sequester that began on

March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 1, 7-8; Army Training

Doctrine Command v. Department of the Army, MSPB Docket No. SF-0752-13-

4840-I-1, Consolidation File (CF), Tab 8 at 23. The agency notified the appellant

that the Budget Control Act of 2011, as amended by the American Taxpayer

Relief Act of 2012, made across-the-board reductions to budgetary resources for

the federal government, that DoD must and will protect wartime operations

funding for its troops in harm’s way, that “[t]his inevitably means larger cuts in

base-budget funding for the Operation and Maintenance (O&M) accounts,” and

that DoD “will need funding in other accounts that can be used to provide the

warfighters with what they need to protect national security and fight the war.”

CF, Tab 8 at 23. The agency afforded the appellant an opportunity to respond

orally and/or in writing to the proposal, to review the supporting material, and to

furnish affidavits or other supporting documentary evidence in his answer. Id.

at 24. The proposal notice indicated that no decision to furlough had been made

or would be made until full consideration was given to the appellant’s reply. Id.

¶3 By written notice dated June 14, 2013, the agency’s deciding official

informed the appellant that his written and oral replies to the proposal notice had

been reviewed and carefully considered, determined that the reasons for the

proposed furlough remained valid, and indicated that the procedures and

3

conditions related to the furlough were determined to be the most equitable means

of implementing the furlough and that the appellant would be required to be on a

discontinuous furlough for no more than 11 workdays during the period from

July 8, 2013, through September 30, 2013. IAF, Tab 1 at 10-11. The record

includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,

2013, on discontinuous days between July 8, 2013, and September 30, 2013, not

to exceed a maximum of 88 hours, with the appellant’s supervisor informing the

appellant of the specific furlough dates before the beginning of each pay period.

Id. at 7-8.

¶4 On appeal, the appellant asserted that: (1) the furlough did not promote the

efficiency of the service because active-duty service member students at the

DLIFLC would be present for instruction with half-strength teaching teams,

which could result in lower student graduation rates and increased costs

associated with extending the length of student training; (2) it appeared that his

written response to the proposal had not been considered because the decision

notice incorrectly indicated that he had made an oral reply and did not

specifically address the concerns he had raised; (3) the decision notice did not

specify the reasons for the decision, but merely indicated that the reasons set

forth in the proposal notice remained valid; (4) the decision notice did not state

the basis for selecting a particular employee for furlough, as required by 5 C.F.R.

§ 752.404, and the agency did not provide him with any materials the agency

relied upon specific to his furlough action; (5) the DLIFLC Commandant, who

signed the decision letter, did not appear to be empowered to make the decision,

which should have been signed by the Secretary of Defense as the true deciding

official; and (6) the agency engaged in discrimination based on national origin

because it furloughed U.S. citizens but not foreign national civilian employees on

H-1B visas. IAF, Tab 1 at 5; see IAF, Tab 8 at 5-10.

¶5 The administrative judge consolidated this appeal with several other

appeals. CF, Tabs 2-3. Based on the written record because the appellants either

4

did not request a hearing or withdrew their request for a hearing, see, e.g., IAF,

Tab 13, the administrative judge affirmed the furlough actions, CF, Tab 21,

Initial Decision (ID) at 1-2, 12. The administrative judge found that the agency

subsequently reduced the number of furlough days served by the appellants to 6

workdays. ID at 3. She further found that the agency proved that the furloughs

promoted the efficiency of the service by offering unrebutted evidence that the

agency had to make significant spending cuts because of sequestration, 2 that the

furloughs helped the agency avoid a deficit without jeopardizing military

readiness, and that the agency imposed the furloughs uniformly with exceptions

only for a limited number of categories, such as employees who were needed to

protect life or property or whose absence would result in the failure of a critical

mission. ID at 6.

¶6 Regarding the appellants’ claim relating to H-1B visa holders, who are not

U.S. citizens, the administrative judge held that the appellants did not establish a

prima facie case of discrimination because citizenship is not a cognizable

protected category under Title VII of the Civil Rights Act of 1964, and the

appellants did not specify that they were members of a protected category with

respect to national origin, given that U.S. citizens encompass a variety of national

origins. ID at 7-8. The administrative judge also held that the agency established

a legitimate management reason for exempting H-1B visa holders from the

furlough, namely, regulations requiring the agency to pay H-1B visa holders even

if the employee is not working as long as the inability to work is the result of the

2

Under the Balanced Budget and Emergency Deficit Control Act, as amended, see

2 U.S.C. § 901a, Congress required the Office of Management and Budget to calculate

and the President to order a “sequestration” on March 1, 2013, for FY 2013 that would

reduce each spending account within certain security and nonsecurity categories by a

uniform percentage to achieve certain reduction goals. See Chandler v. Department of

the Treasury, 120 M.S.P.R. 163, ¶ 4 (2013); CF, Tab 7 at 69.

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agency’s action or inaction. ID at 8. The administrative judge rejected the

appellants’ harmful error claim, finding as to 5 C.F.R. § 752.404(b)(2) that there

was no evidence that the appellants and other employees who were not

furloughed were in the same competitive level, and that the agency, in any event,

provided sufficient notice of the basis for furloughing some employees but not

others and the specific reasons for the furlough. ID at 8-9.

¶7 Finally, the administrative judge held that the appellants did not prove that

the agency violated their due process rights. ID at 10-12. In this regard, the

administrative judge held that there was no regulatory or judicially imposed

requirement that the agency specifically address all arguments raised in a

response to a proposal notice, and that a failure to address all such arguments

was not a due process violation. The administrative judge also noted that a

May 14, 2013 memorandum from the Secretary of Defense indicated that

deciding officials would have the discretion to execute the full range of options,

including reducing the number of days an individual is furloughed or granting an

exception from the furlough. ID at 11; see CF, Tab 7 at 70-74. The

administrative judge further held that the deciding official’s limited discretionary

review in this case was consistent with the nature of furloughs resulting from a

sequestration, which are unlike other adverse actions because factors normally

within a deciding official’s discretion, such as the factors set forth in Douglas v.

Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which are relevant in

agency penalty determinations, do not apply here. ID at 12.

ANALYSIS

¶8 The appellant asserts on review that there is substantial evidence indicating

that the deciding official did not have the authority to reverse the course of the

proposed furlough, including: (1) a memorandum from the deciding official

indicating that the furlough was mandatory to meet required spending reductions

and that neither the union nor management would be able to stop the furlough;

6

(2) an email from the deciding official indicating that “we will furlough only if

we are told we have to”; (3) the agency’s response to the appeal, which indicated

that the agency is a “top-down organization,” which is required to obey orders

within the chain of command, and the deciding official was ordered to furlough

all non-exempt civilian employees; and (4) the agency’s response to an

interrogatory indicating that, if an employee was not exempt from the furlough,

the response to the proposal notice was given no further consideration. Petition

for Review (PFR) File, Tab 1 at 4-6. The appellant further contends that his

pre-decisional reply opportunity was precluded because a decision made by the

Secretary of Defense before the proposal notice was issued required the deciding

official to furlough him, and that the agency did not follow its own adverse action

procedures, which required that deciding officials have “full authority” to make a

decision. Id. at 7. In this regard, the appellant asserts that he had no opportunity

to reply to the Secretary of Defense, “the official who appears to have actually

been the one making the decision to effect this adverse action.” Id. at 9. Finally,

the appellant asserts that the action did not promote the efficiency of the service

because the agency admitted that the furlough created delays, mission failures,

and cancellations relating to administrative or day-to-day operations. Id. at 8.

¶9 “Furlough” means the placing of an employee in a temporary status without

duties and pay because of a lack of work or funds or other nondisciplinary

reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. A furlough of 30 days or

less is appealable to the Board under 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512(5),

7513(d); 5 C.F.R. § 752.401(a)(5). A furlough of more than 30 days is

appealable to the Board as a reduction in force (RIF) action under 5 C.F.R.

§ 351.901. Agencies must conduct furloughs of more than 30 days according to

the RIF procedures of 5 C.F.R. Part 351, and the Board will review such actions

to determine whether the agency properly invoked and applied the RIF

regulations. Williams v. Tennessee Valley Authority, 24 M.S.P.R. 555, 557

(1984); 5 C.F.R. § 351.201(a)(2). Agencies may conduct furloughs of 30 days or

7

less without following RIF procedures. Chandler, 120 M.S.P.R. 163, ¶ 5. Such

actions are reviewable by the Board under the “efficiency of the service” standard

of 5 U.S.C. § 7513(a). Chandler, 120 M.S.P.R. 163, ¶ 5; Clerman v. Interstate

Commerce Commission, 35 M.S.P.R. 190, 192 (1987); see 5 C.F.R. § 752.403.

Both RIFs and adverse action furloughs, however, are taken for the same types of

nondisciplinary reasons. Chandler, 120 M.S.P.R. 163, ¶ 5; see Hastie v.

Department of Agriculture, 24 M.S.P.R. 64, 75 (1984), overruled on other

grounds by Horner v. Andrzjewski, 811 F.2d 571, 574-77 (Fed. Cir. 1987). In

light of the basic similarities between RIF and adverse action furloughs, RIF

principles are instructive in determining the scope of the Board’s review of

adverse action furloughs and what it means for a furlough of 30 days or less to be

taken for the “efficiency of the service.” Chandler, 120 M.S.P.R. 163, ¶ 7.

¶10 Furloughs are unique among adverse actions because by definition they are

taken for nondisciplinary reasons and are generally used to address work or

funding shortages or other matters that are not personal to the affected employee.

5 U.S.C. § 7511(a)(5); Chandler, 120 M.S.P.R. 163, ¶ 8. An agency satisfies the

“efficiency of the service” standard in a furlough appeal by showing, in general,

that the furlough was a reasonable management solution to the financial

restrictions placed on it and that the agency applied its determination as to which

employees to furlough in a “fair and even manner,” Clark v. Office of Personnel

Management, 24 M.S.P.R. 224, 225 (1984), i.e., that the agency applied the

adverse action furlough uniformly and consistently, just as it is required to apply

a RIF, Chandler, 120 M.S.P.R. 163, ¶ 8; 5 C.F.R. § 351.201(c). The agency

is not required to apply the furlough in such a way as to satisfy the Board’s sense

of equity. Chandler, 120 M.S.P.R. 163, ¶ 8. Rather, the agency must treat

similar employees similarly and justify any deviations with legitimate

management reasons. Id.; see 5 C.F.R. § 752.404(b)(2) (“When some but not all

employees in a given competitive level are being furloughed, the notice of

proposed action must state the basis for selecting a particular employee for

8

furlough, as well as the reasons for the furlough.”). Which employees are

similarly situated for purposes of an adverse action furlough will be decided on a

case-by-case basis, but the Board is guided by RIF principles in making that

determination. Chandler, 120 M.S.P.R. 163, ¶ 8; see 5 C.F.R. § 752.404(b)(2)

(applying RIF competitive level principles to adverse action furloughs).

¶11 The Board has also held that its efficiency of the service determination

does not encompass agency spending decisions per se, including spending on

personnel matters. See Chandler, 120 M.S.P.R. 163, ¶ 9. Such matters belong to

the judgment of agency managers, who are in the best position to decide what

allocation of funding will best allow the agency to accomplish its mission. Id.

The efficiency of the service determination does encompass issues relating to the

uniform and consistent application of the furlough, including whether the agency

used a furlough to target employees for personal reasons, or attempted to exempt

certain employees from the furlough without legitimate management

reasons. 3 Id.

¶12 Although the appellant asserts that the agency’s action did not promote the

efficiency of the service because the agency admitted that the furlough created

delays, mission failures, and cancellations relating to administrative or

day-to-day operations, PFR File, Tab 1 at 8, these types of disruptions are the

likely result of any furlough and do not demonstrate a failure to meet the

3

The dissent asserts in ¶ 4 that the Board applies “a diminished due process analysis”

when reviewing RIF and furlough adverse actions. We disagree. We do agree with the

dissent, though, that RIF and furlough adverse actions and inability to perform cases are

similar in that they all are not disciplinary in nature. We note, however, that an agency

takes a physical inability to perform action based on a finding that the particular

individual cannot do his or her job for medical reasons personal to the employee. In

contrast, furlough or RIF adverse actions target entire groups of employees or, indeed at

times, entire agencies for reasons not personal to any employee. Yet, agencies always

must satisfy the efficiency of the service standard in all these cases for the Board to

sustain the agency’s action.

9

efficiency of the service standard. We agree with the administrative judge’s

determination that the agency proved that the furlough promoted the efficiency of

the service because the agency showed that the furlough was a reasonable

management solution to the financial restrictions placed on it and applied its

determination as to which employees to furlough in a fair and even manner. ID

at 3-6; see Chandler, 120 M.S.P.R. 163, ¶ 8. We also agree with the

administrative judge that the agency established a legitimate management reason

for exempting H-1B visa holders from the furlough and that the appellant did not

prove national origin discrimination. ID at 7-8. To the extent that the appellant

has alleged that the agency committed harmful error because the deciding official

did not have “full authority” to make a decision regarding the furlough, the

appellant has not shown that any error in that regard likely caused the agency to

reach a conclusion different from the one it would have reached in the absence or

cure of the error. See 5 C.F.R. § 1201.56(c)(3).

¶13 Regarding the appellant’s due process contention, procedural due process

rights derive from a property interest in which the individual has a legitimate

claim of entitlement. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Once

acquired, a property interest falls within the protections of procedural due

process. A property interest is not created by the U.S. Constitution; rather, it is

created and its dimensions are defined by existing rules or understandings that

stem from an independent source, such as a statute. Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1374 (Fed. Cir. 1999).

¶14 Here, 5 U.S.C. §§ 7512(5) and 7513(a) provide that an agency may

furlough an employee for 30 days or less “only for such cause as will promote the

efficiency of the service.” This language creates a legitimate claim of entitlement

to retention in a pay status, and thus a property interest, that conditions the

placement of an employee in a temporary status without duties and pay on such

cause as will promote the efficiency of the service. See Stone, 179 F.3d at 1374

(“If the government gives a public employee assurances of continued employment

10

or conditions dismissal only for specific reasons, the public employee has a

property interest in continued employment.”); McGriff v. Department of the Navy,

118 M.S.P.R. 89, ¶¶ 27-28 (2012) (finding the appellant entitled to constitutional

due process, i.e., notice and a meaningful opportunity to respond, upon being

indefinitely suspended based on the agency’s security clearance decision); Kriner

v. Department of the Navy, 61 M.S.P.R. 526, 532 (1994) (the agency’s

deprivation of the appellant’s property interest in his employment—his

suspension from his job—triggered the application of due process); see also

Krause v. Small Business Administration, 502 F. Supp. 1332, 1338-39 (S.D.N.Y.

1980) (finding a protected property interest in a federal employee’s expectation

of continued and uninterrupted public employment because the agency could

suspend him for 7 days only “for such cause as will promote the efficiency of the

service”). In fact, the Board held in Chandler, 120 M.S.P.R. 163, ¶ 31, that

information regarding the specific process applied by the agency in conducting a

furlough would be relevant to the issue of due process, thus implicitly finding a

protected property interest at stake. Having found that the appellant has a

property interest at stake in this case, the question remains as to what process is

due, and whether the procedure that the agency applied sufficiently satisfied the

mandates of due process.

¶15 In a May 14, 2013 memorandum to the Secretaries of the Military

Departments and other DoD managers, the Secretary of Defense directed defense

managers to prepare to furlough most DoD civilians for up to 11 days. CF, Tab 7

at 70. The memorandum set forth the schedule for furloughs and specific

exceptions and noted that the decision was made very reluctantly. Id. The

memorandum indicated that the Secretary of Defense, along with the senior

civilian and military leadership of DoD, spent considerable time reviewing

information related to the need for furloughs and described in detail the major

budgetary shortfalls driving the basic furlough decision, including the amount of

the reduction in different budgetary accounts, an increase in fuel costs related to

11

wartime operating costs, and the amount of time left in the fiscal year. Id.

at 70-71. The memorandum also described the need to minimize the adverse

effect on military readiness, and detailed the other actions taken to reduce the

shortfall, such as cutbacks in training and facilities maintenance and efforts made

to obtain Congressional approval to shift funds between accounts. Id. The

Secretary of Defense determined that, even after taking these actions, DoD was

still short of needed operating funds for FY 2013, and that deciding to furlough

civilian personnel was an unpleasant but necessary choice when faced with the

alternative of making even larger cutbacks in training and maintenance, which

would further reduce readiness to handle contingency operations and put in

greater jeopardy military readiness in future fiscal years. Id. at 71. The

memorandum indicated that the Secretary of Defense sought advice and input

from senior leaders in the military departments and agencies, as well as advice

from senior civilian and military staff, and that the decision to direct furloughs of

up to 11 days for most civilian personnel represented half the number originally

planned, which reflected vigorous efforts to meet budgetary shortfalls through

actions other than furloughs. Id. The Secretary of Defense noted that furloughs

would be imposed in every military department and almost every agency with

limited exceptions driven by law and the need to minimize harm to mission

execution, such as civilians deployed to combat zones, civilians needed to protect

life and property, and civilians excepted for specific mission reasons or because

furloughing them would not free up money for mission needs. Id. at 71-72.

¶16 The May 14, 2013 memorandum also identified who could be a deciding

official, indicated that deciding officials were “charged with, and [were]

accountable for, making final decisions on furloughs for individual employees

after carefully considering the employee’s reply, if any, and the needs of the

Department,” and stated that deciding officials “[would] have the authority to

execute the full range of options with respect to providing relief in individual

employee cases,” including reducing the number of days or hours an individual

12

was to be furloughed or granting the employee an exception from the furlough.

Id. at 74.

¶17 After the agency issued its notice proposing his furlough, the appellant

submitted his written response to the notice to a “Reply Official,” i.e., the Deputy

Chief of Staff for Personnel and Logistics. CF, Tab 8 at 23-24, 50-51. In his

June 14, 2013 decision letter, the Commandant of the DLIFLC indicated that the

appellant’s response was “reviewed and carefully considered,” but that the

reasons for the proposed furlough remained valid. IAF, Tab 1 at 10-11. In its

response to one of the appellant’s interrogatories in this case, the agency

indicated that the following procedures were used after the appellant filed his

response to the proposed furlough:

When the Agency received written replies to the Proposed Furloughs,

the Reply Official drafted a summary of the employee’s arguments,

and sent the reply and summary to the Office of the Staff Judge

Advocate (OSJA) for a legal review to determine whether the

employee fell within one of the furlough exemptions. The OSJA

conducted a review, after which, the package was sent to the

Deciding Official for final review and signature. If the employee

was not exempt from furlough, their [sic] response was given no

further consideration.

The Appellant neither fell into one of the furlough exemptions, nor

did he claim to be exempt in his response. As a result, his response

was given no consideration beyond what is described above.

IAF, Tab 12 at 10. The appellant also relies upon a March 1, 2013 memorandum

from the Commandant to DLIFLC faculty and staff indicating that “the furlough

will affect all DLIFLC Department of Army civilians; there will be very few

exceptions for the Army and we do not expect any for DLIFLC,” that “the

furlough will be mandatory to meet required spending reductions,” and that

“[n]either the Union nor DLIFLC management will be able to stop the furlough.”

IAF, Tab 11 at 9. The appellant further contends that the Commandant stated

during a February 27, 2013 “Fiscal Uncertainty” briefing that “we can meet our

budget cuts without furlough, so we will furlough only if we are told we have to.”

13

Id. at 11; see CF, Tab 7 at 6 (the agency’s response to the appeal indicating that

the appellants do not fall into one of the categories of exempt civilians, and

“[b]ecause the Appellants were not exempt from the furlough, and because the

Agency was required … to furlough all non-exempt civilian employees, the

Agency furloughed the Appellants.”). The appellant asserts these documents

indicate that the Commandant had only limited, if any, authority and was not the

true decision maker because he did not have the authority to reverse the furlough.

PFR File, Tab 1 at 4-8. Thus, the appellant alleges that additional procedural

protections were required in the form of an opportunity to submit a response to an

official, such as the Secretary of Defense, with the authority to reverse the

furlough. Id. at 9.

¶18 Due process requires, at a minimum, that an employee being deprived of

his property interest be given “the opportunity to be heard ‘at a meaningful time

and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Such opportunity

“should be an initial check against mistaken decisions—essentially, a

determination of whether there are reasonable grounds to believe that the charges

against the employee are true and support the proposed action.” Cleveland Board

of Education v. Loudermill, 470 U.S. 532, 545-46 (1985). Nevertheless, “due

process, unlike some legal rules, is not a technical conception with a fixed

content unrelated to time, place, and circumstances.” Mathews, 424 U.S. at 334.

Rather, it is “flexible and calls for such procedural protections as the particular

situation demands.” Id. Thus, resolution of the issue of whether the

administrative procedures provided here are constitutionally sufficient requires

the Board to analyze the governmental and private interests that are affected. See

id. In particular, identification of the specific dictates of due process generally

requires consideration of three factors: first, the private interest affected by the

official action; second, the risk of an erroneous deprivation of the private interest

through the procedures used, and the probable value, if any, of additional or

14

substitute procedural safeguards; and third, the government’s interest, including

the function involved and the fiscal and administrative burdens the additional or

substitute procedural requirement would entail. Id. at 335.

¶19 Regarding the first Mathews factor, i.e., the private interest affected by the

action, although the Supreme Court has recognized the severity of depriving

someone of the means of livelihood by terminating the individual, it has also

emphasized that, in determining what process is due, one must take into account

the length and finality of that deprivation. Gilbert v. Homar, 520 U.S. 924, 932

(1997); see Miranda v. Southern Pacific Transp. Co., 710 F.2d 516, 524 (9th Cir.

1983) (Wallace, J., concurring in part and dissenting in part) (“Although the

requirements of procedural due process apply to the deprivation of even small

amounts of property, the severity of the deprivation is a factor to be weighed in

determining the appropriate form of the hearing.”). Thus, as long as a furloughed

or suspended employee receives a sufficiently prompt post-deprivation hearing,

the lost income from such temporary actions is “relatively insubstantial

(compared with termination), and fringe benefits such as health and life insurance

are often not affected at all.” See Homar, 520 U.S. at 932. The 6-day furlough in

this case is far less substantial than the termination at issue in Loudermill and the

approximately 10-month suspension at issue in McGriff, 118 M.S.P.R. 89, ¶ 29,

which the Board described as a “significant” deprivation. We nevertheless

recognize that, although a furlough is a temporary deprivation, like a suspension,

it is nonetheless “likely to cut off subsistence income and to prevent one from

obtaining other gainful employment,” and it may have a “great practical impact”

on the employee. Engdahl v. Department of the Navy, 900 F.2d 1572, 1575

(Fed. Cir. 1990).

¶20 Second, we must consider the risk of an erroneous deprivation of such

interest through the procedures used and the probable value, if any, of additional

or substitute procedural safeguards. Mathews, 424 U.S. at 335. When the Court

in Loudermill, 470 U.S. at 535, 542-46, considered the second Mathews factor in

15

the context of a public employee who had been discharged from employment

based on his dishonesty in filling out an employment application, it explained

that, for the purpose of reaching an accurate decision, the opportunity to respond

to a proposed removal is important for two reasons. First, an adverse action will

often involve factual disputes and consideration of an employee’s response may

clarify such disputes. Id. at 543; see Stone, 179 F.3d at 1376. Second, “[e]ven

where the facts are clear, the appropriateness or necessity of the [penalty]

may not be,” and in such cases the employee must receive a “meaningful

opportunity to invoke the discretion of the decisionmaker.” Loudermill, 470 U.S.

at 543. Thus, “the employee’s response is essential not only to the issue of

whether the allegations are true, but also with regard to whether the level of

penalty to be imposed is appropriate.” Stone, 179 F.3d at 1376.

¶21 We find in this case that there was a low risk of an “erroneous” deprivation

of a property interest through the procedures used by the DLIFLC. As set forth

above, the procedures used by the agency were designed to limit the risk of an

erroneous deprivation of a property interest by ensuring that the appellant did not

fall within one of the furlough exemptions. The appellant does not suggest that

any such error occurred, or was even likely to occur, concerning him. See Wash.

Teachers’ Union Local # 6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997)

(“Although the Union suggests that factual errors, such as attributing disciplinary

proceedings to the wrong teachers, could produce erroneous scores on ranking

forms, the record contains no evidence that such errors have occurred, much less

that the risk of such errors is significant.”).

¶22 Moreover, in considering what procedural protections are required in this

situation, there is a fundamental difference in the nature of the action at issue

here as compared to the actions at issue in such cases as Loudermill and McGriff.

As set forth above, the action in Loudermill was based on employee misconduct

such that the court found it necessary, in order to reduce the risk of an erroneous

deprivation, to permit the employee to invoke the discretion of the decision

16

maker as to the appropriateness or necessity of the penalty. 470 U.S. at 545-46.

Similarly, in McGriff, 118 M.S.P.R. 89, ¶¶ 3-6, 33, the Board held that a

significant question existed as to “whether the appellant had a meaningful

opportunity to respond to the proposed indefinite suspension such that the

procedures that were used posed a risk of erroneous deprivation of the appellant’s

property interest.” There, the agency had indefinitely suspended the appellant

based on its suspension of his security clearance, which in turn was based on

alleged conduct that involved questionable judgment, untrustworthiness,

unreliability, and unwillingness to comply with rules and regulations. Here, by

contrast, DoD and the agency made certain policy and spending decisions and

directed the furlough action at the appellant’s position, not at any conduct,

characteristic, qualification, or reputation of the appellant as an individual. See

Chandler, 120 M.S.P.R. 163, ¶ 8 (furloughs are unique among adverse actions

because by definition they are taken for nondisciplinary reasons and are generally

used to address work or funding shortages or other matters that are not personal

to the affected employee). Thus, the agency did not impose a “penalty” upon the

appellant that was amenable to invoking the discretion of the deciding official in

favor of the appellant as an individual. See id., ¶ 31 (the factors set forth in

Douglas, 5 M.S.P.R. at 305-06, which are relevant in agency penalty

determinations in adverse action cases, do not apply to furloughs, which

are nondisciplinary).

¶23 In making such policy decisions in conducting a furlough, agencies have

broad management discretion. See id., ¶ 9 (matters such as spending decisions

belong to the judgment of agency managers, who are in the best position to

decide what allocation of funding will best allow the agency to accomplish its

mission); Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (agencies

retain the expertise to make spending choices to save funds necessary to avoid

furloughs). Thus, there is little risk in the procedures used by the agency of an

“error” as that term is generally understood. See UDC Chairs Chapter, Am. Ass’n

17

of Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of Columbia,

56 F.3d 1469, 1474 (D.C. Cir. 1995) (“Where, as here, the deprivation turns on a

policy decision and not on an individual’s characteristics, a predeprivation

hearing would do little to reduce the risk of erroneous deprivation of the

chairpersons’ interests.”); Brown v. Brienen, 722 F.2d 360, 368 (7th Cir. 1983)

(Flaum, J., concurring) (the “risk of government error and the value of a

predeprivation hearing in reducing that risk” is “insubstantial” when the decision

not to grant compensatory time off is based on staffing shortages and

individualized determinations of fact or law are not necessary). We therefore

find only minimal probable value in the substitute procedural safeguard suggested

by the appellant, namely, an opportunity to submit his response to a different

decision maker, such as the Secretary of Defense, who would presumably have

had superior authority to that of the DLIFLC Commandant with respect to

reversing the furlough.

¶24 Our analysis of the third Mathews factor, the government’s interest,

including the function involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail, turns largely on

sheer numbers. See Wash. Teachers’ Union Local # 6, 109 F.3d at 781.

Irrespective of the total number of DoD civilian employees affected by the

furlough nationwide, the record reflects that the Department of the Army’s

furlough alone was expected to impact 251,000 civilians. CF, Tab 7 at 49, 52.

Requiring the Secretary of Defense to have considered and answered all of the

responses to the proposed furloughs affecting DoD civilian employees would

have slowed the furlough process considerably and added a significant

administrative burden. Cf. Wash. Teachers’ Union Local # 6, 109 F.3d at 781

(requiring principals to answer each of the 400 responses to the teachers’ ranking

forms would have slowed the RIF process considerably, both delaying and

reducing the financial savings that were desperately needed). Under these

circumstances, we find that the government’s interest under the third Mathews

18

factor weighs heavily. See Whalen v. Mass. Trial Court, 397 F.3d 19, 25 (1st Cir.

2005) (because reorganizations often affect numerous employees, the

governmental interest in efficient administration may weigh more heavily).

¶25 Balancing the Mathews factors and taking into account the availability of

post-deprivation relief before the Board, see Clements v. Airport Auth. of Washoe

Cnty., 69 F.3d 321, 332 (9th Cir. 1995) (the nature of subsequent proceedings

may lessen the amount of process that the state must provide pre-termination), we

hold that the agency satisfied the requirements of due process in this case. The

agency’s need to cut expenditures quickly and efficiently in the face of an

extensive number of civilian employees furloughed nationwide as a result of the

sequester outweighed the appellant’s interest given the length of the furlough and

the minimal risk of error involved. 4

4

In concluding that the agency failed to provide the appellant with a meaningful

opportunity to respond because the deciding official presumably did not give any

consideration to the appellant’s response to the furlough notice, the dissent relies on a

statement the appellant made in his January 6, 2014 “Supplement to the Record.” The

appellant claimed therein that the agency, in response to one of his interrogatories,

wrote that, “[i]f the employee was not exempt from [the] furlough, their [sic] response

was given no further consideration . . . . The appellant neither fell into one of the

furlough exemptions, nor did he claim to be exempt in his response. As a result, his

response was given no consideration beyond what was described above.” IAF, Tab 14

at 6, Tab 12 at 10 (emphasis added). We believe the dissent’s reliance on the

appellant’s statement may be misplaced for three reasons.

First, the quoted language itself denotes, by inclusion of the words “further

consideration,” that the agency did consider the appellant’s response. Second, the

appellant omitted a crucial sentence at the end of the agency’s response to this

interrogatory. Importantly, in this missing sentence, the agency explained that: “[t]he

appellant acknowledged receipt . . . of the letter the Agency presented him, which

informed him that his response had been considered, but that, nonetheless, the

reasons for furloughing him remained valid and would go into effect as planned.” IAF,

Tab 12 at Exhibit E (emphasis added). This omitted language reflects once again that

the agency gave consideration to the appellant’s reply. Third, the agency’s response to

the interrogatory states that the agency provided the appellant with “no consideration

beyond what is described above.” The phrase, “what is described above” refers to the

preceding paragraph of the agency’s response to the interrogatory, in which the agency

19

¶26 Accordingly, we AFFIRM the initial decision AS MODIFIED by this

Opinion and Order, still affirming the furlough action.

ORDER

¶27 This is the final decision of the Merit Systems Protection Board in this

appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.

§ 1201.113(c)).

elaborates on the process it provided the appellant and other employees to ensure that

they were given a meaningful opportunity to respond. In particular, as we stated above

in ¶ 17, the agency reported that:

When the Agency received written replies to the Proposed Furloughs, the

Reply Official drafted a summary of the employee’s arguments, and sent a

reply and summary to [OSJA] for a legal review to determine whether the

employee fell within one of the furlough exemptions. The OSJA

conducted a review, after which, the package was sent to the Deciding

Official for final review and signature. If the employee was not exempt

from furlough, their [sic] response was given no further consideration.

Id. As this language makes plain, the agency’s review process was a far cry from “an

empty formality,” as the dissent characterizes it. In fact, the agency provided three

steps during the review process: (a) the reply official’s receiving, reviewing, and

summarizing the appellant’s reply; (b) the OJSA’s receiving and legally reviewing both

the appellant’s reply and the reply official’s summary of the appellant’s arguments; and

(c) the deciding official’s review, prior to signing the final decision, of the “package,”

which included the appellant’s response. In light of these factors, we believe that the

agency ensured that the appellant was given a meaningful opportunity to respond to the

furlough notice and that the agency, including the deciding official, duly considered the

appellant’s response to the furlough notice. See Lachance v. Erickson, 522 U.S. 262,

266 (1998) (“The core of due process is the right to notice and a meaningful

opportunity to be heard.”).

20

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you

submit your request by regular U.S. mail, the address of the EEOC is:

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method requiring a

signature, it must be addressed to:

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after

your receipt of this order. If you have a representative in this case, and your

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your

discrimination claims, you may file a civil action against the agency on both your

discrimination claims and your other claims in an appropriate United States

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with

the district court no later than 30 calendar days after your receipt of this order. If

21

you have a representative in this case, and your representative receives this order

before you do, then you must file with the district court no later than 30 calendar

days after receipt by your representative. If you choose to file, be very careful to

file on time. If the action involves a claim of discrimination based on race, color,

religion, sex, national origin, or a disabling condition, you may be entitled to

representation by a court-appointed lawyer and to waiver of any requirement of

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e5(f) and

29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.

DISSENTING OPINION OF ANNE M. WAGNER

in

Johnathan Gajdos v. Department of the Army

MSPB Docket No. SF-0752-13-1913-I-1

¶1 In this appeal, the agency has acknowledged that the appellant’s response to

its proposed furlough action was not given any consideration by the deciding

official after it was determined that he did not fall into one of several specified

furlough exemptions. Initial Appeal File (IAF), Tab 12 at 10. This issue raises a

concern that the appellant was not provided a meaningful opportunity to respond

to the agency’s notice of proposed action. After finding that furloughs of 30 days

or less are fundamentally different in nature from other types of adverse actions

appealable to the Board, the majority holds that the agency satisfied minimum

requirements of due process. Majority Opinion (Maj. Op.), ¶¶ 18-25. I

respectfully dissent because I disagree with the majority’s determination that

employees subject to furlough actions are entitled to less protection under the

Fifth Amendment than those facing other adverse actions identified in 5 U.S.C.

§ 7512.

¶2 As explained more fully in my separate opinion in Chandler v. Department

of the Treasury, 120 M.S.P.R. 163 (2013), I disagree with the majority’s

application of our highly deferential regulatory standard for reviewing reduction

in force (RIF) cases to the adjudication of the government-wide furloughs

implemented as a result of sequestration. The plain language of the Civil Service

Reform Act 1 simply provides no basis for concluding that Congress intended that

1

The Civil Service Reform Act (Act) identifies the following five personnel actions as

subject to the substantive and procedural protections set forth in 5 U.S.C. § 7513:

removals; suspensions for more than 14 days; reductions in grade; reductions in pay;

and furloughs of 30 days or less. 5 U.S.C. § 7512(1)-(5). The Act also explicitly

2

furloughs of 30 days or less be treated any differently from the other statutorily

appealable adverse actions identified in 5 U.S.C. § 7512(1)-(4). Had Congress so

intended, it presumably would have excluded furloughs, as it did RIFs, from

coverage under 5 U.S.C. § 7513. However, beyond noting that furloughs and RIF

actions are both non-disciplinary and generally triggered by a shortage of funds,

the majority still fails to provide a convincing legal basis for deviating so

significantly from the plain statutory language by essentially importing

deferential RIF concepts into our adjudication of actionable furloughs.

¶3 Consistent with the approach announced in Chandler, the majority here

undertakes to reexamine the question of what process is constitutionally due

furloughed employees. Maj. Op., ¶¶ 10, 22. I recognize that the Supreme Court,

in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), said that “due process, unlike

some legal rules, is not a technical conception with a fixed content unrelated to

time, place, and circumstances . . . [but, rather] is flexible and calls for such

procedural protections as the particular situation demands.” Id. However, the

Supreme Court has already distilled the Mathews factors to arrive at the

fundamental contours of due process, i.e., notice and meaningful opportunity to

respond, when a public employee is deprived of a property interest in

employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). For

this reason, I believe that the majority’s discussion (Maj. Op., ¶¶ 18-25) of

Mathews v. Eldridge, and particularly its application of the Mathews factors to

define what constitutional process is due under these circumstances, to be

unnecessary. Instead, our examination of an employee’s entitlement to due

process should be governed by Loudermill.

¶4 Nor do I believe that we can construe 5 U.S.C. § 7512 as creating a separate

class of adverse actions, furloughs, warranting a diminished due process analysis.

excludes certain personnel actions, including, inter alia, a RIF, from coverage under

5 U.S.C. § 7513.

3

The majority explains that the need for this reexamination stems from the fact

that, unlike the other adverse actions identified in 5 U.S.C. § 7512, a furlough is

taken for nondisciplinary reasons, i.e., to address work or funding shortages,

rather than in response to individual misconduct. However, both the Board and

the U.S. Court of Appeals for the Federal Circuit have long recognized that

removals and suspensions taken for physical or medical reasons are not

disciplinary in the narrow sense of the term, i.e., a sanction for improper conduct,

but only in the broader sense of maintaining the orderly working of the

government. See Thomas v. General Services Administration, 756 F.2d 86, 88-89

(Fed. Cir. 1985) (appeal of an indefinite suspension pending a psychiatric fitness

for duty examination); Hunley v. Department of the Air Force, 36 M.S.P.R. 493,

495 (1988) (appeal of a period of enforced leave exceeding 14 days because of

medical restrictions of no bending, lifting, climbing and walking); Jackson v.

U.S. Postal Service, 5 M.S.P.R. 335, 336-37 (1981) (appeal of removal for failure

to meet physical requirements, i.e., lifting, climbing stairs, walking, standing and

bending, of the position), aff’d, 666 F.2d 258 (Fed. Cir. 1982). Yet, despite the

fact that these actions are not taken in response to individual misconduct, the

Board has not lowered the due process requirements afforded to employees

subjected to them. Indeed, we have held that, when an employee has been placed

on enforced leave for medical reasons without notice and an opportunity to

respond, the action must be reversed because it cannot withstand constitutional

scrutiny. Vargo v. U.S. Postal Service, 49 M.S.P.R. 284, 287 (1991).

¶5 If furloughed employees are entitled to the same constitutional protection

afforded individuals facing other statutorily appealable actions, the inescapable

conclusion would be that the agency denied the appellant due process here

because the deciding official did not give the appellant a meaningful opportunity

4

to respond to the action. 2 While due process does not require that a deciding

official have the authority to ignore or overrule agency policies, the reply

opportunity may not be an empty formality, and the deciding official should have

authority to take or recommend agency action based on the reply. In this case, it

appears that the Secretary of Defense delegated the “authority to execute the full

range of options with respect to providing relief in individual cases” to deciding

officials. Consolidation File (CF), Tab 7 at 74. Despite the broad delegation of

authority to the deciding official here to review individual cases, the record

shows that he limited his consideration of cases only to whether the employee had

met one of several specific furlough exemptions. For example, the appellant

argued in his written reply to the proposed furlough that the exemption of foreign

national employees improperly created two classes of employees, which gave an

improper preference to non-citizens in violation of merit systems principles. CF,

Tab 8 at 50. The deciding official apparently declined to give this argument any

consideration. Accordingly, I would have reversed the furlough in this case

because the record shows that the appellant’s response to the proposed furlough

was not given any further consideration by the deciding official after it was

determined that the appellant did not fall into one of several specified furlough

exemptions.

______________________________

Anne M. Wagner

Vice Chairman

2

Contrary to footnote 4 in the Majority Opinion, I find that the appellant has been

denied due process based upon the plain language in the agency’s response to the

appellant’s request for interrogatories and not the appellant’s characterization of it.

IAF, Tab 12 at 10.