Defense Intelligence Agency v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 35

Docket Nos. DC-0752-14-0632-I-1

Defense Intelligence Agency, 1

Appellant,

v.

Department of Defense,

Agency.

April 30, 2015

Paul P. Holden, Jr., Clifton, Virginia, pro se.

Kenneth F. Miller, Nokesville, Virginia, pro se.

John A. Fraser, III, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellants have filed petitions for review of the initial decision, which

affirmed the agency’s furlough actions. For the following reasons, we conclude

that the petitioners have not established a basis under 5 C.F.R. § 1201.115 for

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Our findings in this Opinion and Order apply only to Appellant Paul P. Holden, Jr.,

MSPB Docket No. DC-0752-13-6407-I-1, and Appellant Kenneth F. Miller, MSPB

Docket No. DC-0752-13-6613-I-1, not to the other appellants who previously were part

of the consolidation in this case but did not file a petition for review. See Dye v.

Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).

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granting their petitions for review. We therefore DENY the petitions for review

and AFFIRM the initial decision.

BACKGROUND

¶2 On June 3, 2013, the agency informed the appellants, Assistant General

Counsels in the Office of General Counsel (OGC) at the Defense Intelligence

Agency (DIA), that it proposed to furlough them 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,” i.e., across-the-board

reductions to federal budgetary resources caused by the Budget Control Act of

2011, as amended by the American Taxpayer Relief Act of 2012. Consolidated

Appeal File (CAF), Tab 6 at 45-47; Holden v. Department of Defense, MSPB

Docket No. DC-0752-13-6407-I-1, Initial Appeal File (Holden IAF), Tab 4 at 4,

17; Miller v. Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1,

Initial Appeal File (Miller IAF), Tab 2 at 4, 20. The agency afforded the

appellants an opportunity to respond orally and in writing to the proposal notice,

to review the supporting material, and to furnish affidavits or supporting

documentary evidence in their answers. CAF, Tab 6 at 46.

¶3 In subsequent memoranda, the agency’s deciding official determined that

the reasons for the proposed furlough remained valid, the procedures and

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

of implementing the furlough, and the appellants 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. Holden IAF, Tab 4 at 18; Miller IAF,

Tab 2 at 21. The appellants ultimately served 6 workdays on furlough. Holden

IAF, Tab 4 at 9; Miller IAF, Tab 2 at 15.

¶4 The appellants filed individual appeals challenging the furlough actions,

which the Board consolidated in this case with the related appeals of other DIA

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employees. CAF, Tab 1 at 1, 15. Among other things, the appellants contested

the manner in which the agency implemented an exception to the furlough related

to employees funded through the National Intelligence Program (NIP). CAF,

Tab 14 at 3-4. In planning the furlough, the agency recognized only limited

exceptions, which included when furloughing would not reduce the DOD budget.

CAF, Tab 6 at 50-53. One exception applied to employees who were funded with

NIP funds. Id. at 48, 52. In contrast, any employees who were funded with

Military Intelligence Program (MIP) funds would be subject to furlough. Id.

at 52. The agency explained that it exempted employees who were funded with

NIP funds from the furlough because they were paid by the Office of the Director

of National Intelligence and not with DOD funds. Id. at 21-22 (declaration of the

Chief of the Employee Benefits and Services Division, DIA’s Office of Human

Resources), 28-30 (declaration of DIA’s Chief Financial Officer). Conversely,

employees who were funded with MIP funds remained subject to furlough

because DOD, which was facing major budgetary shortfalls in its FY 2013 budget

due to sequestration, was responsible for paying those employees. Id. at 28-29

(declaration of DIA’s Chief Financial Officer), 35 (declaration of the Under

Secretary of Defense (Comptroller)/Chief Financial Officer in DOD).

Accordingly, while NIP-funded employees and MIP-funded employees may have

been performing in the same or similar positions, the agency maintained that it

was the source of funding for their positions, rather than the duties of the

positions themselves, that differentiated them for furlough purposes. Id. at 29-31

(declaration of DIA’s Chief Financial Officer). The appellants argued, among

other things, that the DIA billets were misaligned and did not correspond to

actual duties, which resulted in disparate treatment and the wrong employees

being furloughed. CAF, Tab 14 at 3-4.

¶5 In an initial decision based on the written record, the administrative judge

affirmed the furlough actions. CAF, Tab 19, Initial Decision (ID) at 1. She

found that the agency’s furlough was a reasonable management solution to the

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shortage of funds caused by sequestration and that the agency established that its

furlough actions were taken for the efficiency of the service. ID at 1-5, 8. In so

finding, the administrative judge rejected the appellants’ arguments that the

agency did not conduct the furlough in a fair and even manner because it

exempted NIP-funded employees from the furlough while it did not exempt

employees, like the appellants, who were MIP-funded. ID at 4-5; Holden IAF,

Tab 5 at 5-11; Miller IAF, Tab 4 at 4-8. The administrative judge also found

unpersuasive the appellants’ arguments that their billets were misaligned under

the MIP. ID at 4-5; Holden IAF, Tab 5 at 5-7; Miller IAF, Tab 4 at 4-8. She

further found that Appellant Miller failed to prove his claims that the agency

violated his due process rights and committed harmful procedural error when it

took the furlough action. ID at 5-8; Miller IAF, Tab 1 at 4.

¶6 The appellants have filed separate petitions for review of the initial

decision. Holden v. Department of Defense, MSPB Docket No. DC-0752-13-

6407-I-1, Petition for Review File (Holden PFR File), Tab 1; Miller v.

Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1, Petition for

Review File (Miller PFR File), Tab 1. On review, the appellants primarily

challenge the administrative judge’s findings concerning the equity of the

furlough as it applied to their group in OGC, which included both NIP-funded

and MIP-funded attorneys. Holden PFR File, Tab 1 at 5-8; Miller PFR File,

Tab 1 at 4-6. The agency has filed responses in opposition to the petitions for

review. Holden PFR File, Tab 2; Miller PFR File, Tab 2.

ANALYSIS

¶7 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.” Chandler v. Department of the

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Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). A “fair and even manner” means that

the agency applied the adverse action furlough uniformly and consistently. Id.

This does not mean that the agency is required to apply the furlough in such a

way as to satisfy the Board’s sense of equity. Id. Rather, it means that the

agency is required to treat similar employees similarly and to justify any

deviations with legitimate management reasons. Id.

¶8 The appellants argue that the agency failed to apply its determination as to

which employees to furlough in a “fair and even manner.” Holden PFR File,

Tab 1 at 6; Miller PFR File, Tab 1 at 4. Specifically, the appellants argue that

they were unfairly subjected to the furlough because their positions were

misaligned in MIP-funded billets. 2 Holden PFR File, Tab 1 at 6; Miller PFR File,

Tab 1 at 5. Appellant Miller claims that certain employees in NIP-funded billets

in his group in OGC were performing MIP functions while other employees in

MIP-funded billets, like the appellants, were performing NIP functions. Miller

PFR File, Tab 1 at 5. Appellant Miller also argues that the agency unfairly

implemented the furlough because it realigned two of the five attorneys in his

group in OGC from MIP-funded billets to NIP-funded billets to exempt them

from the furlough. See id. at 5-6. He further argues that, because the agency

knew his billet was also misaligned in an MIP-funded billet, it similarly should

have moved him to an NIP-funded billet to avoid the furlough. Id.

¶9 The administrative judge found unpersuasive the appellants’ misalignment

arguments. ID at 4-5. In so finding, she determined that the two attorneys who

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Neither appellant disputes that the furlough was, in general, a reasonable management

solution to the financial restrictions placed on the agency. Nor do the appellants claim

that they should not have been subjected to the furlough because they occupied

positions with NIP billets or otherwise met the agency’s criteria for an exception. Cf.

Dye, 121 M.S.P.R. 142, ¶ 10. Rather, their issue is with the agency’s failure to realign

the billets, which they contend would have resu lted in their being realigned to an NIP

billet and thus they would have been exempted from the furlough. E.g., Holden PFR

File, Tab 1 at 6; Miller PFR File, Tab 1 at 4-5.

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the agency realigned prior to the furlough were in temporary billets at the time

and had to be moved out of those billets prior to the furlough’s implementation.

ID at 5. She also determined that Appellant Miller and the two other attorneys in

their group who were in MIP-funded billets were not occupying temporary billets

at the time and could not be realigned for that reason. ID at 5. As set forth

below, we find that the record evidence supports the administrative judge’s

findings.

¶10 In a declaration submitted below, DIA’s Chief Financial Officer stated that

the decision to align a billet to either the NIP or the MIP was made through

negotiations between the offices of the Under Secretary of Defense for

Intelligence and the Director of National Intelligence and that the decision

typically was not made at the individual billet level. CAF, Tab 6 at 30. She

indicated that the decision ultimately was submitted to the United States

Congress and the President for their approval in an annual DOD appropriations

bill. Id. A Management Analyst for DIA averred that the group of billets that

included Appellant Miller’s and Appellant Holden’s billets was aligned to the

MIP on August 3, 2008, well in advance of the FY 2013 furlough. Miller IAF,

Tab 2 at 13-14 (declaration of DIA Management Analyst, J.C.). She also

described that, during the planning of the furlough, there were discussions about

whether the functions performed by the appellants would be better aligned to the

NIP. Id. at 13. As a result of these discussions, DIA asked the Under Secretary

of Defense for Intelligence to exempt from the furlough the appellants and the

other attorney in the office who occupied an MIP-funded billet but he denied the

request, stating that no furlough exemptions would be approved at that time to

avoid unfair treatment. Id.

¶11 We find unavailing the appellants’ arguments concerning the misalignment

of their billets. In planning the furlough, the Secretary of Defense specifically

directed the agency to furlough its employees who were funded with MIP funds.

CAF, Tab 6 at 52. The record shows that the appellants’ billets at the time of the

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furlough were aligned to the MIP pursuant to an agreement, made years earlier,

between the Under Secretary of Defense for Intelligence and the Director of

National Intelligence. Id. at 13-14. Even if DIA believed that the appellants’

billets were misaligned to the MIP at the time of the furlough, there is no

evidence in the record to suggest that any alleged misalignment of the attorneys’

billets in OGC was meant to target the appellants for personal reasons. See, e.g.,

In re Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R. 385, ¶ 17

(2014) (stating that the efficiency of the service determination encompasses

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). Rather, the record reveals that the agency uniformly and

consistently applied the furlough to its attorneys in OGC pursuant to its orders at

the time. CAF, Tab 6 at 48-53; see Chandler, 120 M.S.P.R. 163, ¶ 8. Further,

the appellants have not established that the agency was obligated to realign the

billets as they propose under any applicable law or other authority. 3

¶12 Concerning Appellant Miller’s argument regarding the two attorneys whose

billets were realigned prior to the furlough, DIA’s General Counsel indicated

that, in preparing for the furlough, the agency learned that those employees were

in temporary billets. Miller IAF, Tab 7 at 16 (declaration of DIA’s General

Counsel). He stated that the Office of the Chief Financial Officer had directed,

pursuant to a longstanding order from the Director of DOD, that all employees in

temporary billets be moved into permanent billets in advance of the furlough. Id.

To comply with the Director’s order, the two attorneys in temporary billets were

realigned to two open permanent billets in the NIP. Id.; see Miller IAF, Tab 2

3

There has been no showing, for instance, that the agency failed to fo llow any

applicab le procedures in this regard, and thus the appellants’ arguments fail to the

extent they could be construed as an attempt to show harmful error under 5 U.S.C.

§ 7701(c)(2). See 5 C.F.R. § 1201.56(b)(1), (c)(3).

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at 13 (declaration of DIA Management Analyst, J.C.). DIA’s General Counsel

further explained that, because Appellant Miller occupied a permanent billet at

the time, the agency had no basis to reassign him into another billet. Miller IAF,

Tab 7 at 16. Therefore, we find that the agency has shown that it implemented

the furlough in a fair and even manner. Specifically, it has shown that its

decision to exempt the two attorneys in Appellant Miller’s group was based on a

legitimate management reason, i.e., that their positions were NIP-funded, and that

their realignment prior to the furlough was not based on personal reasons but on

the fact that they were occupying temporary billets and needed to be realigned to

permanent billets before the implementation of the furlough. See, e.g., In re

Tinker AFSC/DP, 121 M.S.P.R. 385, ¶ 17. Accordingly, we find that Appellant

Miller has set forth no basis to disturb the administrative judge’s findings in this

regard.

¶13 Appellant Miller also challenges the administrative judge’s finding that he

failed to prove that the agency committed harmful error by violating DOD

Instruction 1442.02. 4 Miller PFR File, Tab 1 at 6-8. Under 5 U.S.C.

§ 7701(c)(2)(A), the Board will not sustain an agency decision if the appellant

“shows harmful error in the application of the agency’s procedures in arriving at

such decision.” The Board may not assume that an employee has been harmed by

a procedural error in the adverse action process; rather, the appellant bears the

burden of proving harm. Pumphrey v. Department of Defense, 122 M.S.P.R. 186,

¶ 10 (2015). A procedural error is harmful where the record shows that the error

was 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. Id.

4

On review, Appellant Miller does not challenge the administrative judge’s finding that

he failed to prove that the agency violated his due process rights, and we discern no

basis to disturb that finding. ID at 7-8.

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¶14 DOD Instruction 1442.02 provides, among other things, that the proposing

and deciding officials in an adverse action against a civilian attorney, such as

Appellant Miller, shall be in the attorney’s supervisory chain. Miller IAF, Tab 7

at 42 (DOD Instruction 1442.02, Enclosure 4, Paragraph 6d). Here, there is no

dispute that the proposing and deciding officials were not in Appellant Miller’s

supervisory chain. The administrative judge found no violation of the

Instruction, however, because she found that the Instruction was inapplicable

under the circumstances. ID at 5-6. She further found that, even if the agency

was required to follow the Instruction, any error in its application was not

harmful. ID at 6-7. Assuming arguendo that the agency committed procedural

error in violation of DOD Instruction 1442.02, we agree with the administrative

judge’s finding that Appellant Miller failed to prove that the error was harmful.

ID at 6-7.

¶15 According to Appellant Miller, his supervisory chain consisted of three

civilian attorneys, including DIA’s General Counsel. Miller IAF, Tab 4 at 9. In

his declaration submitted below, the General Counsel stated that he would have

complied with the Secretary of Defense’s written order directing the furlough of

civilian personnel in MIP-funded billets, like Appellant Miller, had he been the

deciding official in the matter. Miller IAF, Tab 7 at 15. On review, Appellant

Miller claims that the General Counsel’s conclusion is based on a

misunderstanding of the NIP and MIP realignment situation. Miller PFR File,

Tab 1 at 7-8. He claims that all three attorneys in his supervisory chain

“consistently expressed strong support for [his] position, and as such, had they

been aware of [the Under Secretary of Defense for Intelligence’s] willingness to

realign certain NIP and MIP billets, they may well have worked to exempt [me]

from the furlough.” Id. Appellant Miller’s speculation that the attorneys in his

supervisory chain “may well have worked to exempt” him from the furlough had

they been made aware of certain information does not meet his burden of proving

that the agency’s failure to assign the appropriate proposing and deciding

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officials under the circumstances was likely to have caused the agency to reach a

different decision on the proposed furlough action. See Pumphrey, 122 M.S.P.R.

186, ¶ 11 (finding that an appellant’s speculation is insufficient to establish

harm). Accordingly, we find no basis to disturb the administrative judge’s

finding that Appellant Miller failed to prove harmful procedural error. ID at 6-7.

¶16 Appellant Holden claims on review that the administrative judge abused

her discretion when she failed to consider his prehearing submission and closing

brief. Holden PFR File, Tab 1 at 4-5. It is well settled that administrative judges

have broad discretion to regulate the proceedings before them, including the

authority to rule on discovery motions and to impose sanctions as necessary to

serve the ends of justice. See Guzman v. Department of Veterans

Affairs, 114 M.S.P.R. 566, ¶ 12 (2010); see also 5 C.F.R. § 1201.43(a), (c). Here,

the record shows that the administrative judge granted the agency’s motion to

strike Appellant Holden’s prehearing submission as untimely filed, CAF, Tab 14

at 1 n.1, and its motion to strike Appellant Holden’s closing brief because it

included arguments already stricken from the record and because it raised new

arguments not identified in the administrative judge’s previous order, CAF, Tab

17 at 2. We find no abuse of discretion under the circumstances, as Appellant

Holden failed to comply with the administrative judge’s explicit instructions.

CAF, Tabs 9, 14, 17; see Ryan v. Department of the Air Force, 117 M.S.P.R. 362,

¶ 5 (2012) (the Board ordinarily will not reverse an administrative judge’s rulings

regulating the proceedings absent an abuse of discretion); see also Guzman, 114

M.S.P.R. 566, ¶ 12 (the Board will not disturb an administrative judge’s

determination to impose a sanction, unless it is shown that the administrative

judge abused her discretion or that her erroneous ruling adversely affected a

party’s substantive rights). In any event, as the administrative judge stated in the

initial decision, the arguments raised by Appellant Holden in his prehearing

submission and closing brief were the same arguments that Appellant Miller

timely raised and which she found unpersuasive in the initial decision. ID at 8

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n.1. Because we affirm her findings on review, we find that Appellant Holden

has not shown that any alleged abuse of discretion prejudiced his substantive

rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)

(an adjudicatory error that is not prejudicial to a party’s substantive rights

provides no basis for the reversal of an initial decision).

¶17 Accordingly, we affirm the furlough actions.

ORDER

¶18 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)).

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

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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.

If you are interested in securing pro bono representation for an appeal to

the United States Court of Appeals for the Federal Circuit, you may visit our

website at http://www.mspb.gov/probono for information regarding pro bono

representation for Merit Systems Protection Board appellants before the Federal

Circuit. 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.