Stephen M. Rodgers v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 45

Docket No. DC-0752-13-0799-I-1

Stephen M. Rodgers, 1

Appellant,

v.

Department of the Navy,

Agency.

July 23, 2015

Stephen M. Rodgers, Williamsburg, Virginia, pro se.

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

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

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

affirmed the agency’s furlough action. 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 5 C.F.R. § 1201.115 for granting

the petition for review. Therefore, we DENY the petition for review and

AFFIRM the initial decision.

1

Pursuant to 5 U.S.C. § 1201.36(a), this appeal was part of a consolidation. Navy

Munitions Command I v. Department of the Navy, MSPB Docket No. DC-0752-14-

0383-I-1.

2

BACKGROUND

¶2 On May 29, 2013, the agency proposed to furlough the appellant, an

Attorney Advisor at the Navy Munitions Command (NMC) in Yorktown,

Virginia, for no more than 11 workdays due to “extraordinary and serious

budgetary challenges facing the Department of Defense . . . for the remainder of

Fiscal Year . . . 2013, the most serious of which is the sequester that began on

March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 7-9. On May 29, 2013, the

appellant responded in writing to the notice of proposed furlough. IAF, Tab 3

at 5-6. On June 3, 2013, the deciding official, who was the Commander of NMC,

requested that the entire NMC be subject to an exception to the proposed

furlough. Navy Munitions Command I v. Department of the Navy, MSPB Docket

No. DC-0752-14-0383-I-1, Consolidated Appeal File (CAF), Tab 3 at 32. The

deciding official’s request for an organization-wide exception was denied by the

Director of the Navy Staff. Id. at 33-35. By written notice dated June 24, 2013,

the deciding official notified the appellant that he would be furloughed as

outlined in the proposal notice. IAF, Tab 1 at 10-12. The agency later reduced

the duration of the furlough from 11 days to 6 days. Department of the Navy

Administrative Record for FY 2013 Furlough Appeals (AR), Part 1, Tab 3,

available at http://www.mspb.gov/furloughappeals/navy2013.htm. The appellant

was furloughed on 6 nonconsecutive days. IAF, Tab 9 at 5-10.

¶3 The appellant filed an appeal, which the administrative judge consolidated

with the appeals of similarly situated employees. CAF, Tab 1. After holding a

hearing, the administrative judge issued an initial decision affirming the furlough.

CAF, Tab 14, Initial Decision (ID).

¶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 for review. PFR File, Tab 2. The appellant has filed a reply to the

agency’s response. PFR File, Tab 4.

3

ANALYSIS

The appellant was provided with the required due process.

¶5 The appellant argues that he was denied due process because the deciding

official lacked any actual decision-making authority. PFR File, Tab 1 at 4-5.

Procedural due process rights derive from a property interest in which an

individual has a legitimate claim of entitlement. Gajdos v. Department of the

Army, 121 M.S.P.R. 361, ¶ 13 (2014). The appellant has a legitimate claim of

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

5 U.S.C. §§ 7512(5) and 7513(a), which conditions his placement in a temporary

status without duties and pay on such cause as will promote the efficiency of the

service. See Gajdos, 121 M.S.P.R. 361, ¶¶ 13-14. Having found that the

appellant has a property interest at stake in this appeal, the question remains as to

what process is due, and whether the procedure the agency applied satisfied the

mandates of due process. Id., ¶ 14.

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

as the particular situation demands. See, e.g., Gajdos, 121 M.S.P.R. 361, ¶ 18;

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 16, 19 (2014).

The appellant does not dispute that he received prior notice and an opportunity to

respond, but argues that he was not provided a meaningful opportunity to respond

because the deciding official was not empowered to make any decision except to

uphold the proposed furlough. PFR File, Tab 1 at 13-15. To support his

argument, the appellant relies on McGriff v. Department of the Navy,

118 M.S.P.R. 89 (2012), in which the Board held that constitutional due process

requires that the deciding official have authority to take or recommend agency

action based on the reply. McGriff, 118 M.S.P.R. 89, ¶ 33. Since issuing

McGriff, the Board has clarified that due process does not require that the

deciding official have the unfettered discretion to take any action he or she

believes is appropriate upon considering the proposed adverse action. See

Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 12 (2014); see

4

also Buelna, 121 M.S.P.R. 262, ¶ 27 (stating that due process does not demand

that the deciding official consider alternatives that are prohibited, impracticable,

or outside of management’s purview).

¶7 The Department of Defense issued guidance identifying categories of

employees who would not be subjected to the furlough. 2 AR, Part 1, Tab 12. The

agency described these categories as “limited exceptions driven by law and by the

need to minimize harm to mission execution.” Id. The agency instructed

deciding officials to consider all employee replies and grant relief if one of these

categorical exceptions applied, or another basis for granting individual relief

existed under applicable law or the guidance provided by the Office of the

Secretary of Defense. AR, Part 1, Tab 6 at 38 of 135. The undisputed evidence

in the record establishes that the deciding official requested that his entire

organization be excepted from the furlough due to its responsibility for safely

moving ordnance, but the Director of the Navy Staff denied his request

concluding that “[s]ufficient flexibilities exist to manage workload requirements

and scheduling of furlough days should emergent situations arise.” CAF, Tab 3

at 32-34. The deciding official testified that, after hearing the replies, he could

have decided that individual employees met the criteria for one of the categorical

exceptions. PFR File, Tab 2 at 73-75; see Gajdos, 121 M.S.P.R. 361, ¶ 21

(noting that the agency’s procedures ensured that the appellant did not fall within

a furlough exemption). The deciding official also could have recommended

modification of the furlough if he concluded that an employee should be subject

to an exception not previously recognized. AR, Part 1, Tab 2, ¶ 12. The deciding

official’s authority was limited in the sense that he could not have granted an

organization-wide exception to the furlough for NMC. But he possessed

sufficient decision-making authority in the context of this agency-wide furlough

2

The initial decision and the parties also refer to the categorical exceptions delineated

in the Department of Defense’s May 14, 2013 memorandum as “exemptions.”

5

to satisfy the appellant’s right to due process. 3 See Gajdos, 121 M.S.P.R. 361,

¶¶ 20-23, 25 (finding that the procedures used by the agency did not deprive the

appellant of constitutional due process even where the deciding official’s

discretion to invoke alternatives to the furlough was limited); cf. Putnam,

121 M.S.P.R. 532, ¶ 12 (the right to due process is not violated by a deciding

official’s limited authority to select a penalty other than the proposed indefinite

suspension for the revocation of a security clearance).

¶8 The appellant argues that the agency did not identify a “multi-tiered”

decision-making process similar to the process utilized in Gajdos, and therefore

the administrative judge’s reliance on Gajdos was not appropriate. PFR File,

Tab 1 at 26. We do not agree. The agency’s guidance to deciding officials gave

them the authority to make decisions regarding individual furlough actions

consistent with the organizational and categorical exceptions previously

established by the Secretary of Defense. AR, Part 1, Tab 2, ¶¶ 5-13, Tab 6 at 38

of 135. Any major variations from this guidance required coordination in

advance with the Assistant Secretary of the Navy, Manpower and Reserve

Affairs. AR, Part 1, Tab 8 at 50 of 135.

¶9 The appellant believes that the administrative judge erred by finding

significant the fact that the deciding official used “Command Letterhead” to

request an organization-wide exception to the furlough. PFR File, Tab 1

at 14-15. However, the initial decision does not mention the use of letterhead.

See ID at 10-12. The initial decision correctly finds that the deciding official

testified that he requested the organization-wide exception for all 1,000 NMC

civilian employees, not just the 15 employees for whom he was designated as the

deciding official. Id.; PFR File, Tab 2 at 73-75. He went on to testify that none

3

In addition to the predeprivation opportunity to respond to the deciding official, the

appellant also has had the opportunity to seek post-deprivation relief before the Board.

See Gajdos, 121 M.S.P.R. 361, ¶ 25.

6

of the employees for whom he had been designated as the deciding official

individually met the criteria for the categorical exceptions. PFR File, Tab 2

at 76-77.

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

furlough.

¶10 Although we have found no constitutional violation, we must still consider

whether the agency committed harmful procedural error. 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

are also 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). An agency is required to follow its own

rules in effecting an adverse action, regardless of whether those rules go beyond

the requirements of government-wide statutes and regulations. Canary v. U.S.

Postal Service, 119 M.S.P.R. 310, ¶ 11 (2013).

¶11 In this case, the agency followed its procedures. The appellant argues that,

by denying the deciding official the authority to apply one of the categorical

exceptions to his entire organization, the agency failed to follow its own

procedures. PFR File, Tab 1 at 26. However, the agency’s procedures delegated

to deciding officials the authority to review individual employee replies and

apply the approved categorical exceptions on a case-by-case basis. AR, Part 1,

Tab 6 at 36-39 of 135. The deciding official testified that when he reviewed the

individual replies to the proposed furlough none of the fifteen employees for

whom he was designated as the deciding official met the criteria for an exception.

PFR File, Tab 2 at 74-78. We find no support in the record for the proposition

that the agency’s procedures for implementing the furlough granted individual

deciding officials the independent authority to make organization-wide

exceptions to the furlough. See AR, Part 1, Tab 6 at 36-39 of 135.

7

The agency did not treat the appellant differently than similarly situated

employees.

¶12 A furlough of 30 days or less is reviewable by the Board under the

“efficiency of the service” standard of 5 U.S.C. § 7513(a). Chandler v.

Department of the Treasury, 120 M.S.P.R. 163, ¶ 5 (2013). The Board has found

that an agency satisfies the efficiency of the service standard 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.” 4 Id., ¶ 8 (quoting Clark v.

Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984)). A fair and even

manner means that the agency applied the furlough action uniformly and

consistently. Id. An agency is not required to apply a furlough in such a way as

to satisfy the Board’s sense of equity. Id. An agency is required to treat similar

employees similarly and to justify any deviations with legitimate management

reasons. Id.

¶13 The appellant argues that the administrative judge erred by relying on

reduction-in-force (RIF) principles in determining who was similarly situated for

the purposes of the furlough. PFR File, Tab 1 at 19-20. He argues that the

administrative judge should have identified similarly situated employees utilizing

the principles applied in conducting a disparate penalty analysis. Id. Furloughs

are unique among adverse actions because by definition they are taken for

nondisciplinary reasons and generally are used to address work or funding

shortages or other matters that are not personal to the affected employee.

Chandler, 120 M.S.P.R. 163, ¶ 8. We find that the administrative judge’s

reliance on RIF principles in determining which employees were similarly

situated to the appellant was appropriate. See id., ¶ 7; see also Weathers v.

4

The appellant does not contest that the furlough was a reasonable management

solution to the financial restrictions placed on it. PFR File, Tab 1 at 5.

8

Department of the Navy, 121 M.S.P.R. 417, ¶¶ 6, 8-9 (2014) (the Board is guided

by RIF principles in making the determination of who is similarly situated in a

furlough).

¶14 “Competitive area” principles may be used to determine who is similarly

situated in a furlough. See Weathers, 121 M.S.P.R. 417, ¶ 8. Generally, a

competitive area must be defined solely in terms of the agency’s organizational

units and geographical location. 5 C.F.R. § 351.402(b). The minimum

competitive area is a subdivision of the agency under separate administration

within the local commuting area. Id.

¶15 The appellant argues that the agency did not consistently impose the

furlough among similarly situated employees because employees classified in his

same series (GS-0905) who worked at the Norfolk Naval Shipyard in Portsmouth,

Virginia, performing similar work were not furloughed. PFR File, Tab 1 at 5, 13,

21; CAF, Tab 5 at 10. The appellant argues that relying on RIF principles to

determine who is similarly situated in a furlough is a “litmus paper UIC and

Supervisor approach.” 5 PFR File, Tab 1 at 20. The appellant’s argument is not

persuasive. The shipyard employees were not in the appellant’s competitive area

because they work in a different subdivision of the agency under separate

administration. See generally CAF File, Tab 3 at 32-35 (NMC was treated as an

independent subdivision of the agency for administration of the furlough). Thus,

the appellant was not similarly situated to the attorneys assigned to the Norfolk

Naval Shipyard for the purposes of this furlough, even if they performed similar

duties.

5

UIC is an abbreviation for Unit Identification Code, which the agency might use to

determine an employee’s source of funding.

9

The agency fairly and evenly applied its exception for employees assigned to

Navy shipyards and properly determined that exception did not apply to the

appellant.

¶16 Employees assigned to Navy shipyards were subject to an explicit

exception from the furlough by the Department of Defense “because it would be

particularly difficult to make up delays in maintenance work on nuclear vessels

and those vessels are critical to mission success.” AR, Part 1, Tab 12 at 110 of

135. The appellant argues that the administrative judge erred in accepting the

agency’s assessment that all of the employees assigned to the Norfolk Naval

Shipyard should have been excepted from the furlough irrespective of their duties

and responsibilities, but not also accepting his deciding official’s similar

assessment of NMC. PFR File, Tab 1 at 15-16. The appellant’s argument fails to

acknowledge that the exception applied to the shipyard employees was

established by the Department of Defense’s guidance and was not the assessment

of an individual deciding official regarding his own organization. In determining

whether the agency structured a furlough in a fair and even manner, the Board

will not scrutinize an agency’s 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). Rather, the Board will

consider issues relating to uniform and consistent application of the furlough,

including whether the agency used the furlough to target employees for personal

reasons or attempted to exempt certain employees from the furlough without a

legitimate management reason. Chandler, 120 M.S.P.R. 163, ¶ 9. There is no

indication in the record that the appellant or other NMC employees were targeted

for personal reasons or that the agency exempted any employees without a

legitimate management reason. The Board will not second-guess the agency’s

decision to except shipyard employees, but not NMC employees, based on its

assessment of mission requirements and the appellant has not argued that he

10

qualified for the exception for shipyard employees. Thus, we find no reason to

disturb the administrative judge’s conclusion that the agency fairly and evenly

applied the furlough in the appellant’s situation.

The appellant has not identified any adjudicatory error that would warrant a

different outcome.

¶17 The appellant alleges a number of what he has identified as “procedural

irregularities” during the hearing process. PFR File, Tab 1 at 22-25. He claims

that the administrative judge rescheduled the hearing to accommodate the agency,

and he notes that the record does not reflect “what had to be ex parte

proceedings” in which this request was made or that the appellants were prepared

to proceed on the date that the hearing was originally scheduled. Id. at 22-23.

Not all ex parte communications are prohibited. 5 C.F.R. § 1201.101(a). Only

those ex parte communications that involve the merits of the case or violate rules

requiring submissions to be in writing are prohibited. Id. Here, even if ex parte

communications occurred between the agency and the administrative judge, they

concerned the scheduling of the hearing, not the merits of the appeal, and thus

were not prohibited. See Stec v. Office of Personnel Management, 22 M.S.P.R.

213, 215 (1984). The appellant also appears to be arguing that the administrative

judge should not have rescheduled the hearing to accommodate the agency’s

failure to prepare. We find no abuse of discretion in the administrative judge’s

decision to reschedule the hearing when the primary witness, the deciding

official, was unavailable on the original hearing date.

¶18 The appellant notes that the administrative judge allowed the agency’s

representative to take breaks during the hearing to talk to a technical

representative, but would not allow a diabetic appellant to take a break to eat

when she started to feel ill. PFR File, Tab 1 at 24 n.14. Determining when and

how many breaks to take during a hearing is a matter left to the broad discretion

afforded to administrative judges to regulate the course of the hearing. 5 C.F.R.

11

§ 1201.41(b)(6). We find no abuse of discretion in the manner in which the

administrative judge scheduled breaks during the hearing.

¶19 The appellant also notes that a portion of the hearing is missing from the

Board’s audio recording of the hearing contained in the official record. PFR File,

Tab 1 at 16-17. The appellant is correct. Compare CAF, Tab 10, Hearing

Compact Disc at 1:30:55-1:32:00, with PFR File, Tab 2 at 107-09. The Board has

held that when the record of the hearing contains material omissions of evidence

necessary for the adjudication of an appeal, the evidence must be taken again.

Walker v. Office of Personnel Management, 52 M.S.P.R. 101, 104 (1991).

However, the testimony missing from the audio recording of the hearing in this

matter was captured in the written transcript. Moreover, this testimony is not

material to the adjudication of this appeal. The deciding official testified that,

during a fast surge in Afghanistan and what the appellant has described as an

“emergent Ordnance Evolution” called Odyssey Dawn, he would have needed all

fifteen of the employees assigned to NMC headquarters who were furloughed.

PFR File, Tab 2 at 108. However, there is no evidence in the record that either of

these events was ongoing at the time that the decision to furlough the appellant

was made. On the contrary, the deciding official testified that all fifteen

employees were furloughed without incident. Id. at 106.

¶20 The appellant believes that the administrative judge’s summary of the

hearing testimony is inaccurate. PFR File, Tab 1 at 23. The appellant believes

that the administrative judge made erroneous findings of fact by disregarding the

testimony of the deciding official whenever it did not comport with the agency’s

position. Id. at 24. Having thoroughly reviewed the record, we find that the

administrative judge’s summary of the hearing testimony is accurate.

¶21 The appellant states that the administrative judge erred by not timely ruling

on discovery motions. Id. at 7-9, 24. An administrative judge has broad

discretion in ruling on discovery matters, and absent an abuse of discretion the

Board will not find reversible error in such rulings. Vaughn v. Department of the

12

Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). The administrative judge ruled on the

outstanding discovery motions at the beginning of the hearing. PFR File, Tab 2

at 22-26. The appellant was granted additional discovery and permitted to

supplement the record with any relevant evidence he obtained. Id. We find no

abuse of discretion in the timing of this discovery ruling.

¶22 We have reviewed all of the appellant’s arguments on review and find that

they do not provide any reason to disturb the administrative judge’s findings.

ORDER

¶23 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.

13

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 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.