AR Fort Leavenworth KS v. Department of the Army

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

AR FORT LEAVENWORTH, KS, DOCKET NUMBERS

AR3 FORT LEAVENWORTH, KS, DE-0752-13-1962-I-1 (AR)

AR4 FORT LEAVENWORTH, KS, DE-0752-14-0204-I-1 (AR3)

AR5 FORT LEAVENWORTH, KS, 1 DE-0752-14-0205-I-1 (AR4)

Appellants, DE-0752-14-0206-I-1 (AR5)

v. DATE: JUNE 18, 2015

DEPARTMENT OF THE ARMY,

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 2

Janice L. Jackson, Fort Leavenworth, Kansas, for the appellants.

Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

1

The appellants included in this consolidation are set forth in Appendices A-D to this

order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 appellants have filed petitions for review of the initial decisions, which

affirmed their furloughs. 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

these appeals, and based on the following points and authorities, we conclude that

the petitioners have not established any basis under section 1201.115 for granting

their petitions for review. Therefore, we DENY the petitions for review and

AFFIRM the initial decisions, which are now the Board’s final

decisions. 5 C.F.R. § 1201.113(b).

¶2 Citing serious budgetary challenges, including budget cuts required by the

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

2012, otherwise known as sequestration, the agency furloughed many of its

employees. See, e.g., MSPB Docket No. DE-0752-13-0981-I-1, Initial Appeal

File (0981 IAF), Tab 2 at 7-12. A number of those employees filed Board appeals

challenging their furloughs, which totaled 6 work days per employee in July and

August 2013. See, e.g., 0981 IAF, Tab 1; see also, e.g., MSPB Docket No.

DE-0752-13-1962-I-1, Consolidated Appeal File (1962 CAF), Tab 23 at 4-5.

Below, the administrative judge grouped the appeals into four consolidations.

See 1962 CAF, Tab 19 at 8-19. He held one hearing, e.g., 1962 CAF, Tab 57,

Hearing Recording, and issued four decisions, each affirming the furloughs,

1962 CAF, Tab 58, Initial Decision (1962 ID); MSPB Docket No. DE-0752-14-

3

0204-I-1, Consolidated Appeal File (0204 CAF), Tab 38, Initial Decision; MSPB

Docket No. DE-0752-14-0205-I-1, Consolidated Appeal File (0205 CAF), Tab 41,

Initial Decision; MSPB Docket No. DE-0752-14-0206-I-1, Consolidated Appeal

File (0206 CAF), Tab 35, Initial Decision. 3

¶3 The appellants have filed petitions for review in each of the four

consolidations. E.g., MSPB Docket No. DE-0752-13-1962-I-1, Petition for

Review (1962 PFR) File, Tab 1. The agency has filed corresponding responses.

E.g., 1962 PFR File, Tab 3.

¶4 As a preliminary matter, we note that while the four consolidations below

involved some particularized arguments, the petitions for review reassert

arguments that were consistently raised in all of the consolidations. See, e.g.,

1962 PFR File, Tab 1. Therefore, we have further consolidated the four

consolidations to address those similar arguments in this one decision.

See 5 C.F.R. § 1201.36(a)(1), (b)(1)-(2) (consolidation is appropriate if doing so

would expedite processing and not adversely affect the interests of the parties);

see also Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶¶ 1, 4

(2014) (consolidating cases on review that were adjudicated separately below).

Accordingly, this final order applies to all of the appellants who were the subject

of the four consolidations below and who filed a petition for review.

3

The group identified as AR includes appellants from the agency’s Train ing and

Doctrine Command and Mission and Installation Contracting Command. 1962 CAF,

Tab 19 at 17, Tab 23 at 4-5. The group identified as AR3 included appellants from the

agency’s Installation Management Command. 1962 CAF, Tab 19 at 13-14; see

0204 CAF, Tab 4 at 4-9. The group identified as AR4 included appellants from the

agency’s Medical Command. 1962 CAF, Tab 19 at 15-16; see 0205 CAF, Tab 4 at 4-7.

The group identified as AR5 included appellants from the agency’s Army Corrections

Command, Army Sustainment Command, Dental Command, and Network Enterprise

Center. 1962 CAF, Tab 19 at 18; see 0206 CAF, Tab 4 at 4-5.

4

The administrative judge properly found that the furloughs promoted the

efficiency of the service.

¶5 The appellants argue that the furloughs did not promote the efficiency of the

service and were, therefore, improper. E.g., 1962 PFR File, Tab 1 at 9-12. We

find no merit to these arguments.

¶6 Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an

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

of the service.” Accordingly, an agency must prove that cause existed for the

furlough and that the furlough promotes the efficiency of the service. 4 Dye v.

Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the

efficiency of 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. Chandler v. Department of the

Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).

¶7 Below, the administrative judge found that the agency faced significant

financial restrictions, the furloughs were a reasonable management solution, and

the agency applied the furloughs in a fair and even manner. E.g., 1962 ID at 5.

The appellants have not presented any argument disputing the agency’s financial

restrictions, generally. Instead, they contend that the agency erred by

effectuating the furloughs based upon “global memorandum and supporting

material” from the Department of Defense (DoD), and by failing to perform an

“individualized analysis to determine if their furlough was necessary to promote

the efficiency of the service.” E.g., 1962 PFR File, Tab 1 at 9-12 (issues “a” and

“c”).

4

The appellants have not presented any substantive argument regarding the

administrative judge’s findings regarding cause for the furlough. See, e.g., 1962 ID

at 5-6. As a result, we will not revisit th is issue on review.

5

¶8 To the extent that the appellants’ argument can be construed as disputing

the agency’s use of DoD guidance, generally, we are aware of no statute,

regulation, or case law that requires the agency to prove its case before the Board

without relying upon evidence from the Secretary of Defense or DoD officials.

Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶ 15 (2014). The

Department of the Army, though separately administered by the Secretary of the

Army, is under the Secretary of Defense’s direction, authority, and control. Id.

¶9 To the extent that the appellants’ argument can be construed as attempting

to draw a distinction between the budgetary situations of their individual

components and DoD’s budgetary situation, their arguments remain unavailing.

For purposes of furloughs and the efficiency of the service standard, it is

reasonable for DoD to consider its budget situation holistically, rather than

isolating each individual military department’s situation. Yee v. Department of

the Navy, 121 M.S.P.R. 686, ¶ 14 (2014). Accordingly, the appellants’ arguments

fail and we discern no other basis for disturbing the administrative judge’s

conclusion that the agency met its burden of proof. See Broughton v. Department

of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to

disturb the administrative judge’s findings where she considered the evidence as a

whole, drew appropriate inferences, and made reasoned conclusions).

The appellants failed to establish that the agency committed a due process

violation or harmful error in the administration of the furloughs.

¶10 The appellants seem to suggest that the agency may have violated their right

to due process or otherwise committed harmful procedural error. See, e.g.,

1962 PFR File, Tab 1 at 4-11. We disagree.

¶11 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. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976)

(recognizing that due process rights may vary depending on the circumstances);

see also Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014)

6

(discussing due process in the context of a furlough action). In addition, the

Board will not sustain an agency decision if the employee proves harmful error in

the agency’s application of its procedures in arriving at that decision. 5 U.S.C.

§ 7701(c)(2)(A); Ward v. U.S. Postal Service, 634 F.3d 1274, 1281 (Fed. Cir.

2011).

¶12 Here, the appellants do not dispute that they were provided an opportunity

to respond to their proposed furloughs prior to the deciding officials issuing

furlough decisions. See, e.g., 0981 IAF, Tab 2 at 10-11; 1962 CAF, Tab 33.

Instead, the appellants suggest that they may have lacked the materials necessary

to make a meaningful response to those proposals. E.g., 1962 PFR File, Tab 1

at 10. We find no merit to the argument.

¶13 The appellants reassert that, while testifying below, one of the agency’s

deciding officials, K.B., “could not specify with specificity whether

employees . . . [were] supplied with a copy of the information explaining why he

decided to furlough employees.” E.g., 1962 CAF, Tab 55 at 8; 1962 PFR File,

Tab 1 at 10. However, we are unable to discern any relevance to this purported

ambiguity.

¶14 The proposal and decision letters provided the appellants with the bases for

the furlough actions. See, e.g., 0981 IAF, Tab 2 at 7-12; see also, e.g.,

1962 CAF, Tab 23 at 4-5. Among other things, the proposal letters indicated that

that the furloughs were necessary to accommodate the budgetary challenges

stemming from sequestration; provided employees with detailed information

about exceptions to the furloughs; and permitted 7 calendar days to review

supporting material and submit a response. E.g., 0981 IAF, Tab 2 at 10-12

(proposal letter example). The appellants do not dispute that they received these

proposal letters. See, e.g., 1962 CAF, Tab 33. In addition, they have not

presented any evidence or argument that they requested and were denied

additional information, individually.

7

¶15 Although the appellants do not argue that they sought additional

information, individually, they reassert that the agency erred by failing to provide

additional materials to their union. E.g., 1962 PFR File, Tab 1 at 10; 1962 CAF,

Tab 27 at 8. The administrative judge addressed this issue below, finding no

impropriety, e.g., 1962 ID at 12-14, and we agree.

¶16 Among other things, the administrative judge concluded that the union was

not acting as a personal representative to any appellant during the proposal, reply,

and decision-making process for the furloughs. E.g., 1962 ID at 13-14. In

arguing to the contrary, the petition for review only cites to a March 15, 2013

memorandum of agreement (MOA). 1962 PFR File, Tab 1 at 10. However,

nothing in that MOA establishes the union as any appellant’s designated

representative concerning the July and August furlough actions. See, e.g.,

1962 CAF, Tab 27 at 13-19. Further, the MOA did not require the agency to

provide copies of materials related to individual furloughs to the union. Id.

Instead, the MOA simply demonstrates that the union engaged in collective

bargaining in anticipation of those furloughs. See id.

¶17 Even if the union had been the appellants’ designated representative for the

actual furlough actions, rather than just for the events leading up to the furloughs,

the appellants have failed to identify any improperly withheld documentation.

The petitions for review claim that the agency was unwilling to supply “all of the

appropriate information,” but failed to identify what that appropriate information

was. See, e.g., 1962 PFR File, Tab 1 at 11. Below, the appellants pointed to two

union requests for information regarding what cost savings the agency sought in

lieu of the furlough. E.g., 1962 CAF, Tab 27 at 8. However, it is undisputed that

the union submitted the first request before May 2013, when the agency proposed

any appellant’s furlough, and submitted the second after the agency issued

decisions in June 2013, for each appellant’s furlough. See, e.g., 1962 CAF,

Tab 23 at 4-5, Tab 27 at 8. Moreover, the appellants have failed to explain the

materiality of those requests for information about alternative cost savings. See

8

Chandler, 120 M.S.P.R. 163, ¶¶ 9, 15-16 (the Board’s efficiency of the service

determination does not encompass agency spending decisions per se, including

spending on personnel matters; 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). Accordingly, we find no due

process violation or other error as it relates to the appellants having the

opportunity to make a meaningful response.

¶18 The appellants’ final argument is an assertion that the agency violated the

March 15, 2013 MOA. E.g., 1962 PFR File, Tab 1 at 4-9; see generally

1962 CAF, Tab 27 at 13-19. Specifically, the appellants contend that the agency

violated a provision that established a single agency official, K.B., for approving

exceptions to the furloughs. E.g., 1962 PFR File, Tab 1 at 5-6. The

administrative judge found no merit to the argument, e.g., 1962 ID at 7-10, and

we agree.

¶19 The appellants’ argument pertaining to the MOA is one of harmful error. 5

An appellant bears the burden of proving, by preponderant evidence, that the

agency committed harmful error in reaching its decision. 5 C.F.R.

§ 1201.56(b)(2)(i)(C), (c)(1). A harmful error is an 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. 5 C.F.R. § 1201.4(r).

¶20 Here, even if we were to accept the appellants’ contention that the agency

violated the MOA by having several officials, rather than one designated official,

5

In their petitions, the appellants presented this argument in terms of the agency’s

burden of proof, rather than a harmful error affirmative defense. E.g., 1962, PFR File,

Tab 1 at 6-9. The appellants argue that the purported MOA violation proved that the

agency did not apply the furlough in a fair and even manner. Id. However, in a

furlough appeal, an agency’s burden is to prove that it treated similar employees

similarly and justify any deviations with legitimate management reasons. Chandler,

120 M.S.P.R. 163, ¶ 8. Accordingly, we have considered the appellants’ argument as a

harmful error affirmative defense.

9

determine whether any furlough exceptions should apply, they have failed to

prove any resulting harm. See Ronso v. Department of the Navy, 122 M.S.P.R.

391, ¶¶ 14-16 (2015) (finding no harmful error where the deciding official

delegated the task of receiving oral replies, rather than receiving them

personally). The appellants presented no argument or evidence that the agency

was likely to have reached a different conclusion as to their furloughs in the

absence of the purported violation of the MOA. See Pumphrey v. Department of

Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an

employee has been harmed by a procedural error in the adverse action process).

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.

10

Additional information is available at the court's website, www.cafc.uscourts.gov.

Of particular relevance is the court's "Guide for Pro Se Pet itioners 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.

11

APPENDIX A

AR Fort Leavenworth KS

DE-0752-13-1962-I-1

Alan E. Moore DE-0752-13-0947-I-1

Benjamin J. Szemere DE-0752-13-0981-I-1

Bobbie M. Taijeron DE-0752-13-0984-I-1

Bradford T. Jackson DE-0752-13-0917-I-1

Charles C. Jackson DE-0752-13-0918-I-1

Debra M. Dropkin DE-0752-14-0155-I-1

Ida J. Giffin DE-0752-13-0900-I-1

Joyce J. Taylor DE-0752-14-0160-I-1

Keith L. Starks DE-0752-13-0979-I-1

Kim D. Wright DE-0752-13-1001-I-1

Larry J. Patrie DE-0752-13-0954-I-1

Melton N. Skaggs DE-0752-14-0159-I-1

Michael B. Dunn DE-0752-13-0896-I-1

Pamela S. Thomas DE-0752-13-0987-I-1

Philip A. Samudio DE-0752-13-0966-I-1

Robert M. Parvin DE-0752-13-0953-I-1

12

APPENDIX B

AR3 Fort Leavenworth KS (IMCOM)

DE-0752-14-0204-I-1

Alan D. Edwards DE-0752-13-0897-I-1

Allen L. Barnes DE-0752-13-0862-I-1

Brian R. Valdez DE-0752-13-0991-I-1

Candice L. Spath DE-0752-13-0978-I-1

Carol L. Brown DE-0752-13-0872-I-1

Courtney J. Risser DE-0752-13-0963-I-1

Daniel D. Doyle DE-0752-13-0894-I-1

David D. Brown DE-0752-13-0873-I-1

David M. Mellott DE-0752-13-0941-I-1

Edward L. Smith DE-0752-13-0976-I-1

Eugene K. Kreutzer DE-0752-13-0926-I-1

James L. Light DE-0752-13-0933-I-1

James M. Recoy DE-0752-13-0959-I-1

James T. Herken DE-0752-13-0910-I-1

Jeffrey R. Shugart DE-0752-13-0971-I-1

Jennifer L. Burford DE-0752-13-0876-I-1

Jeremey C. Allen DE-0752-13-0856-I-1

Jeremy J. Dunn DE-0752-13-0895-I-1

Joseph P. Peel DE-0752-13-0955-I-1

Juan J. Guzman DE-0752-13-0904-I-1

Kashawna N. McCaskill DE-0752-13-0938-I-1

Kris E. Wallace DE-0752-13-0993-I-1

Leonard H. Schupp DE-0752-13-0967-I-1

Lori Carrell DE-0752-13-0878-I-1

Lori H. Sigmon DE-0752-13-0973-I-1

13

Luis M. DeJesus DE-0752-13-0889-I-1

Mark D. Weishaubt DE-0752-13-0995-I-1

Matthew W. Liechti DE-0752-13-0932-I-1

Melissa D. Tull DE-0752-13-0990-I-1

Michael L. Hickman DE-0752-13-0912-I-1

Michael L. Lay DE-0752-13-0931-I-1

Nancy K. Boyer DE-0752-13-0868-I-1

Randy A. Thornton DE-0752-13-0988-I-1

Richard T. Baggett DE-0752-13-0861-I-1

Robert E. Allen DE-0752-13-0857-I-1

Robert W. Dokos DE-0752-13-0893-I-1

Teresa L. Dickerson DE-0752-13-0891-I-1

Timothy J. Mondero DE-0752-13-0946-I-1

Travis G. Boxley DE-0752-13-0867-I-1

14

APPENDIX C

AR4 Fort Leavenworth KS (MEDCOM)

DE-0752-14-0205-I-1

Amber E. Morgan DE-0752-13-0948-I-1

Angela F. Clauser DE-0752-13-0882-I-1

Audrey G. Harris DE-0752-13-0853-I-1

Bridgett L. Henry DE-0752-13-0909-I-1

Carolyn C. Anderson DE-0752-13-0858-I-1

Charlea A. Davis DE-0752-13-0887-I-1

Charles Johnson DE-0752-13-0920-I-1

David M. Lasko DE-0752-13-0930-I-1

Doris J. Cozadd DE-0752-13-0885-I-1

Dorothy M. Ramsey DE-0752-13-0958-I-1

Gulden Taylor DE-0752-13-0985-I-1

Janet M. Boschert DE-0752-13-0866-I-1

Kenya W. Abby DE-0752-13-0855-I-1

Laura Miller DE-0752-13-0945-I-1

Lisa M. Davis DE-0752-14-0154-I-1

Marianela Melo DE-0752-13-0942-I-1

Mark E. Catron DE-0752-13-0880-I-1

Marvin C. Ringgold DE-0752-13-0962-I-1

Mary C. Mathia DE-0752-13-0937-I-1

Mary E. Willis DE-0752-13-0999-I-1

Mary S. Francis DE-0752-14-0156-I-1

Melanie P. Conners DE-0752-13-0883-I-1

Michelle G. Smith DE-0752-13-0977-I-1

Paul M. Wilde DE-0752-13-0998-I-1

Ray U. Tomkins DE-0752-13-0989-I-1

15

Rudy D. Geater DE-0752-13-0899-I-1

Saritza Mickelboro DE-0752-13-0944-I-1

Scott A. Shelton DE-0752-13-0970-I-1

Stephen A. Belair DE-0752-13-0863-I-1

Steven J. Weston-Clark DE-0752-13-0997-I-1

Susan D. Landers DE-0752-13-0928-I-1

William A. McCullough DE-0752-13-0939-I-1

16

APPENDIX D

AR5 Fort Leavenworth KS (Other)

DE-0752-14-0206-I-1

Amatallah N. Naim DE-0752-13-0951-I-1

Anthony C. Carriger DE-0752-13-0879-I-1

Aubrey L. Visocsky DE-0752-13-0992-I-1

Chong K. Bielefeld DE-0752-13-0865-I-1

Crystal D. Pettway DE-0752-13-0956-I-1

Damon P. Ward DE-0752-13-0994-I-1

Gilbert R. Hernandez DE-0752-13-0911-I-1

Jeffrey D. Johnson DE-0752-13-0921-I-1

John L. Ray DE-0752-14-0158-I-1

Katherine E. Woods DE-0752-13-1000-I-1

Polly A. West DE-0752-13-0996-I-1

Ronny L. Holland DE-0752-13-0915-I-1

Scott E. Hamel DE-0752-13-0905-I-1