Thaddeus L. Wallace v. Department of the Air Force

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

THADDEUS L. WALLACE, 1 DOCKET NUMBER

Appellant, AT-0752-13-4278-I-1

v.

DEPARTMENT OF THE AIR FORCE, DATE: June 4, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 2

Joshua Klinger, Esquire, Denver, Colorado, for the appellant.

Anthony Coggin, Esquire, Eglin Air Force Base, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellant has filed a petition for review of the initial decision, which

affirmed the agency’s furlough decision. Generally, we grant petitions such as

this one only when: the initial decision contains erroneous findings of material

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Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. Eglin Air

Force Base, Group 2 v. Department of the Air Force, MSPB Docket No. AT-0752-14-

0303-I-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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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).

BACKGROUND

¶2 On or about May 28, 2013, the agency proposed to furlough the appellant,

an Electronics Technician, for no more than 11 workdays due to “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 1 March 13.” Initial Appeal File (IAF), Tab 1 at 10. The notice

identified a website where the material supporting the proposed furlough could be

viewed and stated that in the alternative the appellant could contact his local

civilian personnel section to review the material. Id. at 11. The notice also stated

“[t]o arrange for an oral reply or review the supporting materials, please contact

the individuals listed below” and included a phone number and email address of a

contact person. Id. The notice stated that the appellant would be allowed up to

4 hours of official time to review the supporting material, seek assistance, prepare

a reply, secure affidavits and statements, consider appropriate courses of action,

and make a response. Id. The appellant provided both a written and an oral reply

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to the notice of proposed furlough. IAF, Tab 4 at 25-26, Tab 6 at 6-8. By written

notice dated June 24, 2013, the agency’s deciding official informed the appellant

that he would be furloughed as outlined in the notice of proposed furlough. IAF,

Tab 1 at 12-13. The record includes evidence reflecting the appellant’s furlough

on 6 discontinuous days between July 8, 2013, and September 30, 2013. IAF,

Tab 4 at 4, 8, Tab 5 at 8-15.

¶3 The appellant filed a Board appeal challenging the agency’s action, IAF,

Tab 1, and the administrative judge consolidated his appeal with the appeals of

similarly situated employees, Elgin Air Force Base, Group 2 v. Department of the

Air Force, MSPB Docket No. AT-0752-14-0303-I-1, Consolidated Appeal File

(CAF), Tab 1. After holding a hearing, the administrative judge issued an initial

decision affirming the agency’s furlough actions. CAF, Tab 10, Initial Decision

(ID). The administrative judge found, among other things, that the furlough was

implemented in accordance with due process requirements and that the appellant

had not proven that the agency committed a harmful procedural error. ID at 8-12.

¶4 The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition to the appellant’s

petition. PFR File, Tab 3. The appellant has filed a reply to the agency’s

response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 The appellant raises a single issue on review: whether the agency denied

him due process by not providing him with access to the material supporting the

proposed furlough. PFR File, Tab 1 at 6-10. 3 The administrative judge

considered these same arguments below, finding that the appellant failed to prove

that the agency denied him due process. ID at 8-11. Specifically, the

3

The appellant does not challenge, and we discern no reason to disturb, the

administrative judge’s findings that the agency’s furlough was a reasonable

management solution to the shortage of funds caused by sequestration, promoted the

efficiency of the service, and was applied in a fair and even manner. ID at 5-7, 14-17.

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administrative judge found that the record did not support the appellant’s claim

that he was denied access to the relied upon materials because he was given

adequate instruction on how to access them. ID at 9 & n.7. The administrative

judge further analyzed this claim to determine if the appellant proved that the

agency committed harmful procedural error. ID at 11-12. The administrative

judge found that, because the agency made the supporting information available

online, the appellant failed to prove that the agency committed harmful error by

not also providing him with a copy of the material. ID at 12. In his petition for

review, the appellant argues that the administrative judge erred in analyzing the

due process claim. PFR File, Tab 1 at 9-10. The appellant also argues that the

administrative judge erred by applying the harmful error analysis to his claim that

the agency failed to provide him the material it relied on in making its furlough

decision. Id. at 6.

The appellant was provided with the required due process.

¶6 Prior notice and an opportunity to respond are the fundamental due process

requirements before a tenured public employee is furloughed. Ronso v.

Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015) (discussing due process

in the context of a furlough appeal). The appellant argues that the administrative

judge erred by not analyzing his due process claim independently from the issue

of harmful procedural error. PFR File, Tab 1 at 6. The administrative judge

considered the appellant’s due process claim and found that the agency satisfied

the requirements of due process by providing him with advance written notice of

the proposed furlough, access to the material supporting the agency’s proposed

furlough, and an opportunity to provide both written and oral responses. ID at 9.

We find no error in the administrative judge’s analysis of the due process claim.

¶7 The appellant alleges that the agency’s website containing the supporting

materials was difficult to navigate, but the agency also stated in the notice of

proposed furlough that he could access the material by contacting his local

civilian personnel section. IAF, Tab 1 at 11. The Chief of Employee Relations in

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the civilian personnel section was not aware of any employee contacting the

section in order to review the material. CAF, Tab 7 at 8. The appellant testified

that he did not contact the civilian personnel section to access the material.

Hearing Compact Disc (HCD). Rather, the appellant informed the designated

reply official that he could not find a link on the website provided for “supporting

material.” IAF, Tab 8 at 7; see IAF, Tab 4 at 21. The next day, that official told

him that the supporting material could be found under the link “Administrative

Record.” IAF, Tab 8 at 16. The appellant admitted during the hearing that when

he used the “Administrative Record” link he was able to access the material.

HCD. The appellant replied orally to the proposed furlough on June 17, 2013.

IAF, Tab 4 at 25-26, Tab 5 at 4. The appellant did not review the material prior

to his oral reply. HCD. The agency may have been able to make the material

easier to access, but its failure to do so does not rise to the level of a due process

violation. The material relied on in proposing the furlough was available on the

website. A copy of the materials also was available in the civilian personnel

section for review. Based on the foregoing, we find no basis to disturb the

administrative judge’s finding that the agency provided the appellant with due

process.

The agency did not commit harmful procedural error in processing the appellant’s

furlough.

¶8 A notice of proposed furlough must inform the employee of his or her right

to review the material that is relied on to support the reasons for the furlough.

Salo v. Department of Defense, 122 M.S.P.R. 417, ¶ 9 (2015); 5 C.F.R.

§ 752.404(b). Although we have found no constitutional violation, we must still

consider whether the agency committed harmful procedural error by failing to

follow the regulatory procedures set forth at 5 C.F.R. § 752.404(b). See Stone v.

Federal Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999)

(stating that in addition to the protections afforded by the Constitution, public

employees also are entitled to whatever other procedural protections are afforded

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them by statute, regulation, or agency procedure); Pumphrey v. Department

of Defense, 122 M.S.P.R. 186, ¶ 9 (2015). The appellant was told that he could

access the material supporting the agency’s furlough decision on the website

“http://myPers.af.mil.” IAF, Tab 1 at 11. The record includes a printout of this

website that contains multiple links both related and unrelated to the furlough.

IAF, Tab 9, Hearing Exhibit 1. The appellant testified that he had difficulty

navigating the website. HCD. He further testified that he clicked on various

links looking for the material and some of the links would not load immediately.

He also testified that the proposal notice referenced “supporting material” but

there was no link on the website specifically labeled “supporting material” on the

website. He testified, moreover, that he called the phone number provided in the

proposal notice for questions about accessing the supporting material, but the

phone number was incorrect.

¶9 We agree with the administrative judge’s finding that the appellant failed to

prove that the agency committed harmful procedural error. Harmful error is a

procedural error by the agency 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. See 5 C.F.R. § 1201.56(c)(3); see also Salter v. Department of the

Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). To show harmful error, an appellant must

prove that any procedural error substantially prejudiced his rights by possibly

affecting the agency’s decision. Salter, 92 M.S.P.R. 355, ¶ 7.

¶10 Making supporting material available on a website can satisfy the agency’s

obligation under 5 C.F.R. § 752.404(b). See Salo, 122 M.S.P.R. 417, ¶ 9 (finding

the agency satisfied its obligation under 5 C.F.R. § 752.404(b) to make the

material relied on to support the reasons for a furlough available for review when

the proposal notice advised the employee how to view the material at an agency

website); see also Pumphrey, 122 M.S.P.R. 186, ¶ 7 n.2 (when the notice of

proposed furlough informed the employee how to view the supporting material on

an agency website or at a designated Furlough Reading Room, the appellant’s

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vague statement that he was not given predecisional access to the material relied

upon in the notice of proposed furlough did not support a finding of harmful

procedural error).

¶11 The appellant has not shown how receiving a printed copy of the material

supporting the proposed furlough would have changed the content of his replies

and caused the agency to reach a different conclusion. The appellant had not

reviewed the material prior to the hearing and, when asked by the administrative

judge, could not testify as to what in the material he would have addressed in his

responses to the proposed furlough that may have changed the outcome. HCD.

Again on review the appellant has made general arguments about the agency’s

obligation to make the material available for review but has not shown how he

actually was harmed by the procedures the agency used in implementing the

furlough. See Pumphrey, 122 M.S.P.R. 186, ¶¶ 10-11 (to show harmful error, an

appellant must provide proof of actual harm resulting from an agency’s

procedures). Therefore, we agree with the administrative judge’s finding that the

appellant failed to prove that the agency committed a harmful error.

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

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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.

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

the 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.