The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ROBERT CORMACK, 1 DOCKET NUMBER
Appellant, PH-0752-13-2764-I-1
v.
DEPARTMENT OF THE NAVY, DATE: August 20, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Robert Cormack, Esquire, Lakehurst, New Jersey, pro se.
Anthony M. Dowdle, Patuxent River, Maryland, for the agency.
David S. Castro and Ellen McArthur, Lakehurst, New Jersey, 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
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. NAV AIR
HR 3 v. Department of the Navy, MSPB Docket No. PH-0752-14-0364-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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).
¶2 The agency issued a decision notice furloughing the appellant for no more
than 11 workdays (later reduced to 6 days) from his GS-13 Electrical Engineer
position. Initial Appeal File, Tab 1 at 7-9. 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. PH-0752-14-0364-I-1, Consolidated Appeal File
(CAF), Tab 2. After holding the requested hearing, the administrative judge
affirmed the furlough actions. CAF, Tab 19, Initial Decision (ID) at 2, 12.
¶3 In his petition for review, the appellant argues that his employer is the
Naval Air Systems Command (NAVAIR), not the Department of the Navy (Navy
or the agency) or the DOD, and that NAVAIR had sufficient funds to avoid a
furlough. Petition for Review (PFR) File, Tab 1 at 5-6. In Yee v. Department of
the Navy, 121 M.S.P.R. 686, ¶ 14 (2014), the Board found that, although the Navy
is separately organized under the Secretary of the Navy, it operates under the
3
authority, direction, and control of the Secretary of Defense so that even though
the Navy had adequate funds to avoid a furlough, the DOD was entitled to
consider its budget situation holistically. Similarly, components of the Navy,
including NAVAIR, are subordinate to the Secretary of the Navy and thereby are
necessarily subordinate to the Secretary of Defense. Thus, the administrative
judge properly found that the agency established that the DOD faced a lack of
funds and that the furlough actions, including those in the Navy and in NAVAIR
in particular, were a reasonable management solution to the problem. ID
at 10-11; Yee, 121 M.S.P.R. 686, ¶ 14.
¶4 The appellant further asserts that any cost savings achieved by furloughing
NAVAIR employees could not be legally transferred to components needing
additional funds, so the furlough of NAVAIR employees did not meet the
efficiency of the service standard. PFR File, Tab 1 at 6-7. Below, the appellant
identified a statement in the agency’s Master Agency Narrative that discussed the
agency’s efforts to reallocate funds through the mechanism of reprogramming
and, in particular, the agency’s statement that it had used “almost all” of its
transfer authority for that fiscal year. See Department of the Navy Administrative
Record for FY 2013 Furlough Appeals, Master Agency Narrative, Tab 1a at 13,
available at http://www.mspb.gov/furloughappeals/navy2013.htm. The
appellant’s argument amounts to an attempt to focus the Board’s inquiry on
whether the agency has shown that the furlough promoted the efficiency of
NAVAIR. Under Yee, however, the focus is properly on the efficiency of the
service as a whole, and not on the efficiency of isolated components of the DOD.
See Yee, 121 M.S.P.R. 686, ¶ 14.
¶5 Accordingly, we affirm the initial decision.
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
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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.