The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IRS MILLER CONSOLIDATION, DOCKET NUMBER
Appellant, DA-0752-13-4549-I-2 1
v.
DEPARTMENT OF THE TREASURY, DATE: November 3, 2014
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Karen Lorch, Tonia Gilmore, Julia Miller, and Ramona Wright, Austin,
Texas, for the appellants.
Bridgette M. Gibson, Esquire, and Aaron J. Bennett, Esquire, Dallas,
Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
1
The appellants that are included in this consolidation are set forth in Appendix A to
this Final Order.
2
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
FINAL ORDER
¶1 The appellants have filed a petition for review of the initial decision, which
affirmed the agency’s furlough actions. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioners have not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency furloughed the appellants for no more than 7 workdays in order
to avoid a deficit of funds in Fiscal Year 2013 which resulted from a March 1,
2013 sequestration order requiring across-the-board reductions in federal
spending pursuant to the Balanced Budget and Emergency Deficit Control Act of
1985, as amended. MSPB Docket No. DA-0752-13-4549-I-2, Refiled Appeal File
(RAF), Tab 5 at 23-30.
¶3 On appeal to the Board, the appellants asserted that the agency implemented
the first 3 furlough days but either cancelled or postponed the other planned
furlough days. MSPB Docket No. DA-0752-13-4549-I-1, Initial Appeal File
(IAF), Tab 11 at 5. The appellants also asserted that the agency did not prove
that there was a budgetary shortfall that warranted the furloughs, did not prove
that its actions promoted the efficiency of the service, committed unfair labor
3
practices by failing to comply with an agreement reached between the agency and
the appellants’ union regarding implementing the furlough, and violated the
appellants’ due process rights. Id. at 5-15; see RAF, Tab 5 at 3-13.
¶4 The administrative judge consolidated these appeals after finding that they
addressed the same facts and circumstances. IAF, Tab 4. After a hearing, the
administrative judge affirmed the furlough actions. RAF, Tab 10, Initial Decision
(ID) at 1, 16. The administrative judge found that the furloughs were a
reasonable management solution to the financial restrictions placed on it and that
the agency applied the furloughs in a fair and even manner. ID at 4-9. The
administrative judge also held that the appellants did not prove that the agency
committed harmful error or failed to provide minimum due process. ID at 10-16.
¶5 The appellants assert on review that, given certain assumptions and the
sheer number of employee responses to the proposal notices, the deciding official
would have had only approximately 5 to 7 minutes to consider each response.
Petition for Review (PFR) File, Tab 1 at 2-3. A deciding official’s complete
failure to consider an appellant’s written response to a proposal notice before
issuing a decision constitutes, in and of itself, a violation of minimum due
process of law. Hodges v. U.S. Postal Service, 118 M.S.P.R. 591, ¶ 6 (2012).
The administrative judge found, however, that the deciding official credibly
testified that he reviewed each response individually. ID at 16. The
administrative judge held that this testimony was corroborated by a labor
relations specialist who was the project leader for the oral and written reply
process, and who testified that she forwarded the replies to the deciding official,
the deciding official confirmed that he had reviewed the summaries, and the
deciding official sometimes worked until 9:00 p.m. to review the summaries from
that day. ID at 11, 15-16; see Hillen v. Department of the Army, 35 M.S.P.R.
453, 458 (1987) (to resolve credibility issues, an administrative judge must
consider such factors as the consistency of the witness’s version of events with
other evidence). The Board must give deference to an administrative judge’s
4
credibility determinations when they are based, explicitly or implicitly, on the
observation of the demeanor of witnesses testifying at a hearing; the Board may
overturn such determinations only when it has “sufficiently sound” reasons for
doing so. Haebe v. Department of Justice, 288 F.3d 1288, 1301 (Fed. Cir. 2002) .
The appellants have not identified sufficiently sound reasons for overturning the
administrative judge’s credibility findings in this case. In any event, the Board
has held that, in furlough cases such as this, an agency makes certain policy and
spending decisions and typically directs the furlough action at the appellants’
positions, not at any conduct, characteristics, qualifications, or reputations of the
appellants as individuals. See Gajdos v. Department of the Army, 121 M.S.P.R.
361, ¶ 22 (2014). Given these circumstances, even assuming that the deciding
official spent only a brief period of time reviewing the responses to the proposal
notices, the appellants have not shown a violation of due process.
¶6 The appellants also contend that the administrative judge improperly
disallowed the testimony of a witness. PFR File, Tab 1 at 3. The administrative
judge approved three witnesses requested by the appellants, as well as the
appellants themselves. RAF, Tab 6 at 4. The administrative judge found that the
appellants’ representatives had not spoken to the remaining requested witnesses
and were unable to articulate how the proffered testimony would be different
from that of the approved witnesses, how the information sought could not be
obtained from approved witnesses, or how the testimony would be material to the
Board’s decision. Id. As a result, the administrative judge denied the appellants’
remaining witness requests because the proffered testimony did not appear to be
relevant, material, and not unduly repetitious. Id. The appellants did not file an
objection to this ruling. See RAF, Tab 2 at 1 (the acknowledgment order
reminding the parties that if, before the close of the record, a party fails to object
to any written or verbal ruling, that party will be precluded from challenging the
ruling on petition for review). Thus, there is no basis for overturning the
administrative judge’s ruling. See Miller v. U.S. Postal Service, 117 M.S.P.R.
5
557, ¶ 8 (2012) (the appellant’s failure to object to rulings on witnesses precludes
his doing so on petition for review); Tarpley v. U.S. Postal Service, 37 M.S.P.R.
579, 581 (1988).
¶7 The appellants also reiterate the claim of harmful error they raised below,
alleging that the agency did not provide them and the deciding official with
verbatim transcripts of their oral replies as required by a collective bargaining
agreement. PFR File, Tab 1 at 4-5. The administrative judge found that,
although the agency committed a procedural error in this regard, the agency
installed a “safe-guard” to ensure that the substance of the oral replies was
memorialized by providing a separate note-taker for each oral reply and allowing
the appellants and their representatives to review the summary and to make
changes before it was finalized and forwarded to the deciding official. ID at 12-
13. The administrative judge held that the appellants did not show that the error
was harmful because they did not show that the agency denied requested changes
or that the deciding official likely would have issued a different decision if
transcripts had been provided. ID at 13. The appellants have not shown on
review that the administrative judge erred in finding that the error was not
harmful. See 5 C.F.R. § 1201.56(c)(3) (harmful error is error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error).
¶8 The appellants also renew their objection to the consolidation of these
cases. PFR File, Tab 1 at 7; see IAF, Tab 8. They contend that they did not
intend to file together as a class, that consolidation raises privacy issues, and that
their cases were considered “in the aggregate” rather than individually, despite
the fact that each appellant was impacted in a different way under unique facts
and circumstances. PFR File, Tab 1 at 7. The appellants did not file a timely
objection to the consolidation order. See IAF, Tab 4 (objections to the
consolidation order must be received within 10 days of the August 1, 2013 order),
6
Tab 8 (August 13, 2013 objection to consolidation order). In any event, under
5 C.F.R. § 1201.36(b), an administrative judge may consolidate cases if doing so
would expedite processing of the cases and not adversely affect the interests of
the parties. The administrative judge’s orders required the parties to file
documents containing personally-identifiable information in the appellants’
personal docket numbers, not the “fixed lead” consolidation case. IAF, Tab 3;
RAF, Tab 2. The appellants have not otherwise shown that their interests were
adversely affected by the consolidation. See Apple v. Department of
Transportation, 16 M.S.P.R. 280, 289 (1983) (finding no error in consolidating
appeals when the appellants’ cases were treated individually at the hearing,
testimony was taken, and there was an opportunity for cross-examination of the
agency’s witnesses when they testified as to each appellant); Noa v. Department
of Transportation, 15 M.S.P.R. 126, 132 (1983) (the fact that some of the
appellants raised issues that were not common to all other appellants is not
sufficient to bar the act of consolidation), aff’d sub nom. Moylan v. Department of
Transportation, 735 F.2d 524 (Fed. Cir. 1984).
¶9 The appellants further assert that, although the agency tried to avoid
overtime during the week leading up to the furlough and on furlough weeks,
overtime was in fact offered during part of that period. PFR File, Tab 1 at 7. The
appellants contend that “[i]t does not promote the efficiency of the service to pay
time and a half to some employees and then furlough everyone.” Id. The record
includes emails from an agency manager indicating that a limited number of
hours of overtime was authorized on particular dates “within the Specialized ID
Theft Team” and that only Correspondence Exam Technicians fully-trained and
off 100% review on all identity theft issues including nullification training may
work that overtime. RAF, Tab 9 at 5-7; see id. at 8-16 (offering overtime to
“ACS CPAT” certified employees and employees fully-trained and certified to
work the Full Scope ID Theft Program). An agency’s decision to award certain
employees overtime may be relevant to whether the agency applied the furlough
7
uniformly and consistently. Chandler v. Department of the Treasury,
120 M.S.P.R. 163, ¶ 14 (2013). If an agency used overtime payments to relieve
certain employees but not others of the financial consequences of the furlough,
this may be sufficient to show that the furlough did not meet the efficiency of the
service standard. Id. Here, however, the appellants’ bare allegation that
providing any overtime during a furlough does not promote the efficiency of the
service does not show that the agency failed to apply the furlough uniformly and
consistently, i.e., did not treat similar employees similarly and justify any
deviations with legitimate management reasons. See id., ¶ 8.
¶10 Finally, the appellants assert that the administrative judge improperly
denied them discovery. PFR File, Tab 1 at 8. The appellants filed a motion to
compel discovery but did not include a copy of their original request and a
statement showing that the information sought was discoverable, an affidavit or
sworn statement supporting the contention that no response had been received,
and a statement that the appellants had discussed or attempted to discuss the
motion with the agency and made a good faith effort to resolve the discovery
dispute and narrow the areas of disagreement. IAF, Tab 13; see 5 C.F.R.
§ 1201.73(c)(1). In light of his intent to dismiss the initial appeal without
prejudice to refiling, the administrative judge noted in a summary of a telephonic
prehearing conference that he would not rule on the motion to compel at that time
because he had not seen the just-filed motion and the Board’s decision on
interlocutory appeal in Chandler could affect his analysis. IAF, Tab 14. The
administrative judge informed the parties that they could object to the summary
within 10 days. Id. at 3. There is no indication that the appellants ever objected
to the administrative judge’s decision not to rule on the motion at that time or
otherwise later raised the matter of the motion to compel before the issuance of
the initial decision affirming the furloughs. In any event, as set forth above, the
appellants’ motion to compel did not comply with the Board’s requirements.
Thus, this argument is unavailing. See Johnson v. Department of Justice,
8
104 M.S.P.R. 624, ¶ 30 (2007) (because the appellant’s motion to compel did not
comply with the Board’s regulations, the administrative judge’s failure to rule on
the motion was harmless error).
¶11 Accordingly, the appellant’s petition for review is denied and the initial
decision is affirmed.
NOTICE TO THE APPELLANTS REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703 (as rev. eff. Dec.
27, 2012). You may read this law as well as other sections of the United States
Code, at our website, http://www.mspb.gov/appeals/uscode.htm. Additional
information is available at the court’s website, www.cafc.uscourts.gov. Of
particular relevance is the court’s “Guide for Pro Se Petitioners and Appellants,”
which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.
9
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
10
APPENDIX A
IRS MILLER CONSOLIDATION
DA-0752-13-4549-I-2
Julia E. Miller DA-0752-13-0454-I-2
Billy J. Goins DA-0752-13-0455-I-2
Sharon W. Hynes DA-0752-13-0456-I-2
Blas Martinez DA-0752-13-0457-I-2
Joycelyn R. Henderson DA-0752-13-0458-I-2
Mae F. Brown DA-0752-13-0459-I-2
Denise L. Washington DA-0752-13-0460-I-2
Dwayne L. Brown DA-0752-13-0461-I-2
Valerie Y. Hall DA-0752-13-0462-I-2
Karen L. Lorch DA-0752-13-0463-I-2
Jane L. Busch DA-0752-13-0464-I-2
Sandra L. Little DA-0752-13-0465-I-2
Patricia L. Zarate DA-0752-13-0466-I-2
Willie Hines DA-0752-13-0467-I-2
Brenda L. Breedlove DA-0752-13-0468-I-2
Aaron Z. Samelson DA-0752-13-0469-I-2
Lolethia M. Sledge DA-0752-13-0470-I-2
Evangleses Moore, Jr. DA-0752-13-0471-I-2