The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID L. BOULDEN, DOCKET NUMBER
Appellant, AT-0752-13-3521-I-1 1
v.
DEPARTMENT OF THE ARMY, DATE: February 6, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Robert S. Poydasheff, Esquire, Columbus, Georgia, for the appellant.
Anne M. Norfolk, Fort Benning, Georgia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a)(2), this appeal was part of a consolidation, I n re
Training and Doctrine Command, Fort Benning v. Department of the Army, MSPB
Docket No. AT-0752-14-0162-I-1, Consolidated Appeal File (CAF). Only the appellant
has filed a petition for review of the initial decision sustaining the agency’s furlough
action. Petition for Review (PFR) File, Tab 1 at 1.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 appellant has filed a petition for review of the initial decision, which
affirmed the agency’s furlough action. 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
petitioner has 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 appellant, an employee assigned to the agency’s
Training and Doctrine Command at Fort Benning, Georgia, for 6 days based upon
the financial restrictions imposed by the President’s March 1, 2013 sequestration
order. CAF, Tab 4 at 2-3. The appellant, along with several other employees,
filed an appeal of the agency’s furlough action, which the assigned administrative
judge sustained. CAF, Tab 12, Initial Decision (ID). Of the several appellants
whose appeals were consolidated for processing, only the appellant has filed a
petition for review. 3 PFR File, Tab 1. The agency has filed a response in
opposition to the petition for review. PFR File, Tab 4.
3
The Clerk of the Board received the appellant’s petition for review on October 16,
2014. PFR File, Tab 1. The initial decision, however, was issued on August 19, 2014,
and a petition for review had to be filed no later than September 23, 2014. In response
3
¶3 The record reflects that the agency furloughed the appellant for 6 days
because of the financial restrictions placed on the agency by the sequester. IAF,
Tab 1 at 11-13 (letter of decision imposing the furlough). The administrative
judge sustained the agency’s action, finding that it was required to furlough
employees based on budget restrictions, and that it did so in a fair and even
manner without targeting certain employees or groups of employees. ID at 5-6.
On review, the appellant argues, among other things, that the agency failed to
prove that he was not exempt from the furlough. PFR File, Tab 1 at 5 (arguing
that the agency did not prove that he was not involved in programs affecting
military readiness).
¶4 The Board has found that an agency meets its burden of proving that a
furlough promotes the efficiency of the service 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. In re Tinker AFSC/DP v. Department of
the Air Force, 121 M.S.P.R. 385, ¶ 14 (2014). We find no basis to conclude that
the agency was required to disprove the appellant’s alleged, presumptive
entitlement to an exemption from the furlough under the agency’s furlough
process. 4 See Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶ 6 (2014)
to the Board’s timeliness order, the appellant’s representative avers that he mailed the
petition for review to the Clerk of the Board on the same date that he mailed copies to
the agency’s representative and the assigned administrative judge—September 8,
2014—and that the pleading he sent to the Board was either lost in the mail or misfiled.
PFR File, Tab 3 at 2. The agency has not opposed the appellant’s petition for review on
timeliness grounds. PFR File, Tab 4. The appellant’s motion to accept his petition for
review as timely is GRANTED.
4
The Department of Defense exempted nine categories of civilian workers from the
furlough. CAF, Tab 8, Tab 4 (incorporating by reference the agency’s administrative
record found on the Board’s website); Department of the Army Administrative Record
for Fiscal Year 2013 Furlough Appeals (Administrative Record), availab le at
www.mspb.gov/furloughappeals/army2013.htm (last visited Feb. 6, 2015). The
appellant has failed to identify on review wh ich category, if any, he believes applied to
him. PFR File, Tab 1 at 5. Additionally, the appellant argued below that the agency
4
(finding that, when imposing a furlough action, the agency is required to treat
similar employees similarly and to justify deviations with legitimate management
reasons). Instead, we find ample support in the record that the agency fairly and
evenly implemented its furlough action, it had legitimate management reasons for
its actions, and there is no evidence in the record that the agency treated similar
employees differently. See In re Tinker AFSC/DP, 121 M.S.P.R. 385, ¶ 14; CAF,
Tab 8; Administrative Record, Tabs 6-8. Additionally, we find the appellant’s
argument, that the agency could have taken steps to mitigate the financial impacts
of the sequester, presents no basis for overturning his 6-day furlough. See Kelly
v. Department of the Army, 121 M.S.P.R. 408, ¶ 13 (2014) (the Board will not
review spending decisions entrusted to the agency’s discretion in reviewing a
furlough action); IAF, Tab 7 at 5.
¶5 The appellant also argues on review that the administrative judge erred in
denying him the opportunity to cross-examine one of the deciding officials who
imposed most, but not all, of the furlough actions at issue in the consolidated
appeal. PFR File, Tab 1 at 4. This agency official, however, did not serve as the
deciding official over the appellant’s furlough, and there is no dispute that the
appellant had an opportunity to cross-examine the deciding official who imposed
his furlough. PFR File, Tab 4 at 6-7. We find no error with the administrative
judge’s decision to preclude the appellant from cross-examining a witness who
had no relevant or material information concerning his furlough. See Box v. U.S.
erred in separately identifying Sexual Assault Prevention and Response Victim
Advocates and Coordinators as exempt employees. IAF, Tab 7 at 6. There is no
evidence in the record that the agency targeted the appellant for personal reasons or
exempted these employees without a legitimate management reason. CAF, Tab 8;
Administrative Record, Tab 7 (explain ing that the additional exemption was
implemented in order to “ensure that every effort is made to instill in the Army a
climate that does not tolerate or ignore sexual harassment or sexual assault”). The
Board will not scrutinize an agency’s furlough decision in such a way that
second-guesses the agency’s assessment of its mission requirements and priorities.
Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013), aff’d sub nom. Berlin v.
Department of Labor, 772 F.3d 890 (Fed. Cir. 2014).
5
Postal Service, 51 M.S.P.R. 401, 405 n.2 (1991) (finding that the administrative
judge properly denied the appellant’s request to cross-examine a witness whose
testimony was not relevant or material to the issues in the appeal).
¶6 We have considered the remainder of the appellant’s arguments on review
and find that they present no basis for overturning the administrative judge’s
initial decision. The initial decision sustaining the agency’s furlough action is
AFFIRMED.
NOTICE TO THE APPELLANT 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
6
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
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.