The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ERIC B. FEIGENBAUM, 1 DOCKET NUMBER
Appellant, PH-0752-13-1518-I-1
v.
DEPARTMENT OF THE NAVY, DATE: July 28, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Eric B. Feigenbaum, Indian Head, Maryland, pro se.
Omari O. Jackson, Esquire, Portsmouth, Virginia, 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 action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation, Indian
Head NHR3 v. Department of the Navy, MSPB Docket No. PH-0752-14-0067-I-1.
2
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
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).
¶2 The appellant is an ND-0855-04 Engineer for the agency’s Naval Surface
Warfare Center Indian Head Division (NSWCIHD). Feigenbaum v. Department
of the Navy, MSPB Docket No. PH-0752-13-1518-I-1, Initial Appeal File (IAF),
Tab 1 at 6. On June 24, 2013, the agency issued a decision to furlough the
appellant for up to 11 days between July 8, and September 28, 2013. 3 Id.
at 12-13. On July 23, 2013, the appellant appealed his furlough to the Board.
IAF, Tab 1. The administrative judge consolidated the appellant’s appeal with
furlough appeals filed by sixty-five other appellants. Indian Head NHR3 v.
Department of the Navy, MSPB Docket No. PH-0752-14-0067-I-1, Consolidated
Appeal File (CAF), Tab 1. None of the appellants requested a hearing or raised
any cognizable affirmative defenses. CAF, Tab 12, Initial Decision (ID) at 2, 7,
& n.5. On April 9, 2015, the administrative judge issued an initial decision,
finding that the furloughs were a reasonable management solution to an agency
3
The agency ultimately furloughed the appellant for a total of 6 days. IAF, Tab 3 at 5.
3
budget shortfall arising out of the sequestration mandated by 2 U.S.C. § 901a, and
that the agency effected the furloughs in a fair and even manner. ID at 8-14.
¶3 On April 13, 2015, the appellant electronically filed an initial appeal form
with the Board’s Central Regional Office that appeared to pertain to the same
furlough action addressed in the initial decision discussed above. Petition for
Review (PFR) File, Tab 1. The Board notified the appellant that it construed this
filing as a petition for review of that initial decision. PFR File, Tab 2. The
appellant has not objected to that characterization. In his petition for review, the
appellant argues that he should not have been furloughed because the NSWCIHD,
where he is employed, is a Working Capital Fund (WCF) organization. PFR File,
Tab 1 at 3. The agency has filed a response in opposition. PFR File, Tab 4.
¶4 For the reasons explained in the initial decision, we agree with the
administrative judge that it is immaterial that the appellant’s salary comes from a
WCF. ID at 12-14. The Board has found that, regardless of whether a WCF is
subject to sequestration, the law does not shield employees paid from WCF
accounts from being furloughed and that savings in WCF accounts may be used to
offset shortfalls in other areas of the agency’s budget that are subject to
sequestration. Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 13-18
(2015). The Board further found that the agency’s action of furloughing WCF
employees to make additional funds available for its budget as a whole was a
reasonable management solution to the financial restrictions imposed by
sequestration and therefore was taken for such cause as to promote the efficiency
of the service. Id., ¶¶ 16, 18 & n.5. The appellant has not identified any material
factual distinction between his situation and the appellant’s situation in Einboden,
and our review of the record reveals no such distinction. We find that the
appellant’s argument on review constitutes mere disagreement with the initial
decision. See Weaver v. Department of the Navy, 2 M.S.P.R. 129, 133-34 (1980).
For these reasons, the petition for review is denied.
4
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.
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
5
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.