The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JULIUS ROTHLEIN, 1 DOCKET NUMBER
Appellant, DC-0752-13-5025-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 13, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Julius Rothlein, Woodbridge, Virginia, pro se.
Frederick Congdon and Linda L. Tiller, Washington, D.C., 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 his furlough for 6 days. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Marine
Corps Base Quantico II v. Department of the Navy, MSPB Docket No. DC-0752-14-
1096-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 agency issued a decision notice furloughing the appellant for no more
than 11 workdays (later reduced to 6 days) from his GS-15 Attorney position.
Initial Appeal File, Tab 1 at 27-29. The furlough was based on serious budgetary
challenges facing the Department of Defense (DOD), including the sequester that
began on March 1, 2013. The appellant filed an appeal, which the administrative
judge consolidated with the appeals of similarly situated employees. MSPB
Docket No. DC-0752-14-1096-I-1, Consolidated Appeal File (CAF), Tab 1 at 2.
After holding the requested hearing, the administrative judge affirmed the
furlough actions. CAF, Tab 15, Initial Decision (ID) at 2, 22.
¶3 On review, the appellant asserts that the furlough did not promote the
efficiency of the service because the agency could have addressed its budget
crisis without furloughing employees. Petition for Review (PFR) File, Tab 1
at 6-8. We disagree. The evidence supports the administrative judge’s
determination that the agency had to make significant spending cuts because of
sequestration. Even assuming, as the appellant argues, that the agency had a
surplus at the end of the fiscal year that had to be returned to the Department of
3
the Treasury, this does not mean that the agency had no deficit to remedy when it
decided to furlough employees. We agree with the administrative judge that the
agency established that the DOD faced a lack of funds and that the furlough
actions were a reasonable management solution to the problem. ID at 14-17; Yee
v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014).
¶4 The appellant further contends that the agency violated his constitutional
right to due process because he was denied the right to a deciding official with
independent authority to decide his case. PFR File, Tab 1 at 8-11. He further
contends, based on statements he attributes to the Secretary of the Navy, that this
constitutes harmful error because, had he been permitted to make his reply to the
Secretary of the Navy, the Secretary would not have furloughed him. Id. at 12.
We find that the agency did not deprive the appellant of his constitutional due
process. The deciding official provided a declaration made under penalty of
perjury, which: (1) explained that he carefully reviewed each individual’s
submission, the proposal notice, and the documents the agency relied upon in
issuing the proposal notice; (2) stated that he made an individual determination if
the individual met any exemption criteria; and (3) asserted that he had authority
to exempt an employee if he met established exemption criteria, and to
recommend an exemption on a basis not previously recognized if he felt it
appropriate. CAF, Tab 5 at 4-5. Under these circumstances, we find that the
agency satisfied its obligation to afford the appellant due process. See Rodgers v.
Department of the Navy, 2015 MSPB 45, ¶7 (finding that the deciding official
possessed sufficient decision-making authority in the context of the agency-wide
furlough to satisfy the appellant’s right to due process); Kelly v. Department of
the Army, 121 M.S.P.R. 408, ¶9 (2014) (rejecting the appellant’s argument that
the agency, in a furlough action, deprived him of due process because the
deciding official lacked decisional independence).
¶5 Regarding the appellant’s harmful error claim, he has not identified a
statute or regulation that the agency violated when it designated the deciding
4
official in his case, and thus, it is not clear what the alleged error is. Assuming
that the agency committed a procedural error, the appellant bears the burden of
showing that the 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
purported error. See Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶ 10
(2015). The appellant’s speculation as to what the Secretary of the Navy might
have done is insufficient to meet his burden of proving harm. See id., ¶ 11.
Moreover, the sheer number of civilian Navy employees who were subjected to
furloughs tends to show that the Secretary of the Navy was generally disinclined
to interfere with the decisions made by his subordinate managers and that it was
not likely that the outcome in this case would have been different if the Secretary
of the Navy intervened, particularly given that the appellant does not claim to be
exempt from the furlough, but rather that there should not have been a furlough.
¶6 Accordingly, we affirm the initial decision.
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).
5
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
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.