Allison McDade v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

ALLISON MCDADE, 1 DOCKET NUMBER

Appellant, DC-0752-13-0981-I-1

v.

DEPARTMENT OF THE NAVY, DATE: June 23, 2015

Agency.

THIS FINAL ORDER IS NO NPRECEDENTIAL 2

Allison McDade, Virginia Beach, Virginia, pro se.

Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.

Jacquelyn Wright, Esquire, Port Hueneme, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

1

Pursuant to 5 C.F.R. § 1201.36(a)(1), this appeal was part of two consolidations.

Naval Facilities Engineering Command, Mid-Atlantic (Norfolk) 1 v. Department of the

Navy, MSPB Docket No. DC-0752-14-0158-I-1; Naval Facilities Engineering

Command, Atlantic (Norfolk) v. Department of the Navy, MSPB Docket No. DC-0752-

14-0146-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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).

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).

BACKGROUND

¶2 On May 30, 2013, the agency issued a Notice of Proposed Furlough

informing the appellant, an Attorney, that she would be furloughed 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.”

Initial Appeal File (IAF), Tab 1 at 7-9. The appellant submitted a written reply to

the proposal notice. IAF, Tab 6 at 13-14. By written notice dated June 28, 2013,

the agency’s deciding official informed the appellant that she would be

furloughed as outlined in the proposal notice. IAF, Tab 1 at 10-12. The record

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includes evidence reflecting the appellant’s furlough on 6 discontinuous days

between July 8, 2013, and September 27, 2013. IAF, Tab 6 at 5-11.

¶3 The appellant filed a Board appeal challenging the agency’s action and she

requested a hearing. IAF, Tab 1 at 1-6. She alleged that the agency violated her

due process rights and committed harmful error and a prohibited personnel

practice. Id. at 5; IAF, Tab 8 at 5-6. In a furlough procedures order, the

administrative judge informed the appellant that her appeal had been consolidated

with the appeals of similarly situated employees. Naval Facilities Engineering

Command, Atlantic (Norfolk) v. Department of the Navy, MSPB Docket No.

DC-0752-14-0146-I-1, Consolidated Appeal File (0146-I-1 CAF), Tab 1. The

administrative judge realigned her appeal with a different group of similar

furlough appeals. See 0146-I-1 CAF, Tab 6.

¶4 After holding a hearing, the administrative judge issued an initial decision

affirming the furlough action. Naval Facilities Engineering Command,

Mid-Atlantic (Norfolk) 1 v. Department of the Navy, MSPB Docket No. DC-0752-

14-0158-I-1, Consolidated Appeal File (0158-I-1 CAF), Tab 13, Initial Decision

(ID) at 2, 17. He found that the agency’s furlough was a reasonable management

solution to the shortage of funds caused by sequestration and that the agency

implemented the furlough in a fair and even manner. ID at 4-9, 17. He also

found that the appellant did not prove a violation of due process or her other

affirmative defenses. ID at 9-17.

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

File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

The administrative judge properly found that the agency established that the

appellant was furloughed for cause that promotes the efficiency of the service.

¶6 In her petition for review, the appellant argues that the agency did not

establish a credible reason for the furlough because “the Command (NAVFAC

Midlant) and the Department of the Navy both operated at a surplus at the end of

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the fiscal year.” PFR File, Tab 1 at 5. She contends that, “[c]learly, funds were

available to pay appellant’s salary.” Id. She further asserts that the furlough

action was “fundamentally arbitrary.” Id.

¶7 A furlough is the placing of an employee in a temporary status without

duties and pay because of a lack of work or funds or other nondisciplinary

reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or

less, as here, are reviewable under the “efficiency of the service” standard found

in 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.

163, ¶ 5 (2013). An agency satisfies the efficiency of the 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. Id., ¶ 8.

¶8 The administrative judge considered the appellant’s arguments, but found

that the agency established its cited reason for the furlough, a shortage of funds

for the Department of Defense (DOD), by a preponderance of the evidence. ID

at 4, 6. The appellant does not provide evidence to dispute the agency’s position

that the DOD faced a budgetary deficit because of sequestration. As noted by the

administrative judge, it is not unreasonable for the DOD to consider its budget

circumstances holistically rather than isolating individual military departments or

their subcomponents. ID at 6; see Yee v. Department of the Navy, 121 M.S.P.R.

686, ¶ 14 (2014). Thus, the administrative judge properly found that, despite the

relatively sound fiscal situation of the Department of the Navy (Navy), the

DOD’s budget deficit established a valid reason for the furlough. See ID at 5-6.

To the extent the appellant argues that the agency should have allocated any

surplus funds towards avoiding the furlough, the Board has held that its efficiency

of the service determination does not encompass agency spending decisions per

se, including spending on personnel matters. Gajdos v. Department of the

Army, 121 M.S.P.R. 361, ¶ 11 (2014). Such matters belong to the judgment of

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agency managers, who are in the best position to decide what allocation of

funding will best allow the agency to accomplish its mission. Id.

¶9 The administrative judge also considered the appellant’s argument that her

position had adequate funding because it was paid from working capital funds,

but did not find it persuasive. ID at 11-12; see IAF, Tab 8 at 6-7. The Board has

held that, even if an appellant’s working capital fund were exempt from a

sequestration order, the Board would still need to consider whether the furlough

was a reasonable management solution to the financial restrictions placed upon

the agency. Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 13-15

(2015). The appellant has not persuaded us that the administrative judge erred in

his assessment of the financial restrictions placed on the agency or in his

conclusions that the furlough was a reasonable management solution to these

restrictions and that the furlough was applied in a fair and even manner. Thus,

we find that the administrative judge properly affirmed the agency’s furlough

action.

The administrative judge properly found that the appellant failed to establish a

due process violation.

¶10 In contesting the administrative judge’s determination that the agency did

not violate the appellant’s right to due process, the appellant argues that the

“Deciding Official lacked independent authority and did not furnish Appellant

with all reasonably and timely requested information.” PFR File, Tab 1 at 4. She

elaborates that the deciding official was not objective because “the Secretary of

Defense directed furloughs.” Id. She further claims that the deciding official

“never responded to her specific questions,” which “indicates his lack of

consideration AND also deprived Appellant of a meaningful examination of the

complete record upon which the decision was based.” Id.

¶11 Here, 5 U.S.C. §§ 7512(5) and 7513(a) create a legitimate claim of

entitlement to retention in a pay status, and thus a property interest, that

conditions placement of an employee in a temporary status without duties and pay

6

on such cause as will promote the efficiency of the service.

Gajdos, 121 M.S.P.R. 361, ¶¶ 13-14. Having found that the appellant has a

property interest at stake in this case, the question remains as to what process is

due, and whether the procedure that the agency applied satisfied the mandates of

due process. Id., ¶ 14.

¶12 Due process is a flexible concept that calls for such procedural protections

as the particular situation demands. See, e.g., Gilbert v. Homar, 520 U.S. 924,

930-32 (1997); Buelna v. Department of Homeland Security, 121 M.S.P.R. 262,

¶¶ 16, 19 (2014); Gajdos, 121 M.S.P.R. 361, ¶ 18. In this case, the agency

provided the appellant with 7 days to respond orally and/or in writing to the

deciding official before deciding her furlough, and the record shows that this was

a meaningful and adequate opportunity to respond. IAF, Tab 1 at 8. Thus, it is

clear that the agency afforded the appellant predeprivation notice and a

meaningful opportunity to respond, which is clearly sufficient. See

Gajdos, 121 M.S.P.R. 361, ¶¶ 14, 18; see also Cleveland Board of Education v.

Loudermill, 470 U.S. 532, 546 (1985); Ronso v. Department of the

Navy, 122 M.S.P.R. 391, ¶ 13 (2015).

¶13 The administrative judge considered the appellant’s claims and found that

the deciding official possessed the independent authority to consider the

appellant’s request for exemption and change the outcome of the furlough. ID

at 10. He further found that due process does not require that the deciding

official address in the decision letter each of the appellant’s concerns raised in

her reply to the proposed notice. ID at 15. The appellant does not provide

evidence or argument to dispute the administrative judge’s findings.

Accordingly, the agency afforded the appellant minimum due process. See

Gajdos, 121 M.S.P.R. 361, ¶¶ 17-25.

7

The administrative judge properly found that the appellant failed to establish

harmful procedural error.

¶14 Although we find no due process violation, we still must determine whether

the agency committed a harmful procedural error. See Stone v. Federal Deposit

Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,

in addition to the right to due process, “[p]ublic employees are . . . entitled to

whatever other procedural protections are afforded them by statute, regulation, or

agency procedure”); see also Pumphrey v. Department of Defense, 122 M.S.P.R.

186, ¶ 9 (2015). Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an

agency’s decision if the appellant “shows harmful error in the application of the

agency’s procedures in arriving at such decision.” An appellant bears the burden

of proving, by preponderant evidence, that the agency committed harmful error in

reaching its decision. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R.

§ 1201.56(b)(2)(i)(C). 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. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R. § 1201.4(r).

¶15 In her reply to the proposal notice, the appellant objected to the notice’s

“vague discussion of other, similarly situated employees” and requested further

information on other DOD civilian attorneys in order to determine whether her

treatment was “fair and/or in accordance with merit systems principles.” IAF,

Tab 6 at 13-14. The agency complied with the Office of Personnel Management’s

required procedures for a notice of proposed action by providing the appellant

with access to review supporting materials and time off to prepare a reply to the

proposal notice. See IAF, Tab 1 at 7-9; see also 5 C.F.R. § 752.404(b). The

proposal notice also explained the reasons for selecting the appellant for furlough.

IAF, Tab 1 at 7; see 5 C.F.R. § 752.404(b)(2). The administrative judge relied on

the deciding official’s testimony and the record in finding that any error the

agency made by allegedly not providing the requested information to the

8

appellant was harmless because the deciding official concluded that there were no

similarly situated employees. ID at 14. The appellant has not identified a

procedure the agency has violated or provided evidence or argument to contest

the administrative judge’s finding. Her statement that she was harmed by lost

wages and leave does not amount to harmful procedural error. See PFR File,

Tab 1 at 4-5; see also 5 C.F.R. § 1201.4(r).

¶16 Further, the fact that the decision notice may not have addressed all of the

appellant’s specific arguments in her reply does not mean that they were not

considered or that the agency committed harmful procedural error. See, e.g., Salo

v. Department of Defense, 122 M.S.P.R. 417, ¶ 9 (2015) (noting that the appellant

did not identify any regulatory, statutory, or judicially imposed requirement that

the agency must specifically address all arguments raised in a response to a

proposal notice, and concluding that the appellant did not show that any alleged

error likely caused the agency to reach a conclusion different from the one it

would have reached in the absence or cure of the error). The administrative

judge’s finding that the deciding official’s declaration and hearing testimony

established his consideration of the appellant’s reply is supported by the record.

ID at 10; see 0158-I-1 CAF, Tab 11 at 7 (declaration), Tab 12, Hearing Compact

Diskette (20:02-20:52).

¶17 The administrative judge also considered the appellant’s argument that the

agency violated its own policies by not assigning attorneys within her supervisory

chain as her proposing and deciding officials. ID at 12-14. The administrative

judge found that the General Counsel of the Navy’s memorandum validly

delegated authority to individuals to serve as deciding officials for the office’s

attorneys. ID at 13; see 0158-I-1 CAF, Tab 9 at 9-10. He further found that,

although the proposal notice predated the memorandum, such error was harmless

because the appellant did not prove that it was likely that the outcome would have

been different with a proposing official consistent with the policies. ID at 13-14.

9

¶18 The appellant has not provided a reason to disturb the administrative

judge’s finding that the General Counsel’s memorandum properly delegated

furlough authority to the deciding official. Even assuming that the agency

violated its policies by appointing a proposing official outside of the appellant’s

supervisory chain, she did not establish that the agency’s 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. See Pumphrey, 122 M.S.P.R. 186,

¶ 10; see also 5 C.F.R. § 1201.4(r). Specifically, she did not prove that the same

deciding official was likely to have reached a different decision on the proposed

furlough action had the agency appointed a proposing official consistent with its

policies, or that it was likely that such a proposing official would not have

proposed the appellant’s furlough. Cf. Goeke and Bottini v. Department of

Justice, 122 M.S.P.R. 69, ¶¶ 14-23 (2015) (finding that the agency’s belated

substitution of a proposing official from management, rather than from the

members of the rank-and-file attorneys, violated its own internal disciplinary

process and rules and constituted harmful procedural error). Accordingly, we

agree with the administrative judge’s finding that the appellant failed to prove her

harmful error claim.

The administrative judge properly found that the appellant failed to establish that

the agency committed a prohibited personnel practice by violating merit system

principles 5 and 8.

¶19 The appellant argues that the agency’s furlough action cannot be sustained

because it violates merit system principles. PFR File, Tab 1 at 4-5. She argued

below that the furlough action violated the merit system principles codified

at 5 U.S.C. § 2301(b)(5) and (b)(8)(A), and thus cannot be sustained

under 5 U.S.C. § 2302(b)(12). IAF, Tab 1 at 5, Tab 8 at 5-6. The administrative

judge considered the appellant’s arguments and found that she failed to prove that

the agency committed a prohibited personnel practice. ID at 15-17. The

appellant does not provide any evidence or argument on review to contest the

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administrative judge’s finding. Based on our review of the record, we discern no

reason to disturb the administrative judge’s well-reasoned finding. See Crosby v.

U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb

the administrative judge’s findings when she considered the evidence as a whole,

drew appropriate references, and made reasoned conclusions).

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 Appellants,” which is contained within the

court’s Rules of Practice, and Forms 5, 6, and 11.

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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.