The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAWN M. SHOEMAKER, 1 DOCKET NUMBER
Appellant, PH-0752-13-2426-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 10, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Dawn M. Shoemaker, Shippensburg, Pennsylvania, pro se.
James E. Vaiden, Norfolk, Virginia, for the agency.
Karen L. Geiger, Esquire, Mechanicsburg, Pennsylvania, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
Pursuant to 5 U.S.C. § 1201.36(a), this appeal was part of a consolidation. Navy
Mechanicsburg NHR v. Department of the Navy, MSPB Docket No. PH-0752-14-0467-
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 29, 2013, the agency proposed to furlough the appellant for no
more than 11 workdays due to “extraordinary and serious budgetary challenges
facing the Department of Defense [(DOD)] . . . 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 10-12. Based on the record it appears
that the appellant did not submit a reply to the proposed furlough. IAF, Tab 4 at
4. On June 17, 2013, the agency issued a decision stating that the appellant
would be furloughed for no more than 11 workdays between July 7, 2013, and
September 21, 2013. IAF, Tab 1 at 7-9.
3
¶3 The appellant filed an appeal, which the administrative judge consolidated
with the appeals of similarly situated employees. Navy Mechanicsburg NHR v.
Department of the Navy, MSPB Docket No. PH-0752-14-0467-I-1, Consolidation
Appeal File (CAF), Tab 1. In her appeal, the appellant argued that her furlough
was unjustified and unnecessary, and that the deciding official had no ability to
make an independent decision. IAF, Tab 1 at 4. She also questioned whether
working capital funded (WCF) employees could legally be furloughed. Id. at 5.
The appellant did not request a hearing. Id. at 2. After providing all parties with
an opportunity to present evidence and arguments prior to closing the record, the
administrative judge issued an initial decision affirming the furlough. CAF,
Tab 8, Initial Decision (ID).
¶4 The appellant has filed a petition for review, which is almost identical to
her initial appeal. Compare Petition for Review (PFR) File, Tab 1 at 5-6, with
IAF, Tab 1 at 4-5. The agency has filed a response in opposition to the
appellant’s petition for review. PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
The agency met its burden of proving the furlough promoted the efficiency of the
service.
¶5 A furlough is the placing of an employee in temporary status without duties
and pay because of 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
are 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 the agency
applied its determination as to which employees to furlough in a fair and even
manner. Id., ¶ 8.
4
¶6 The appellant argues that her furlough was a political decision and not
necessary to address a genuine budgetary need. PFR File, Tab 1 at 5-6. To
support her argument, the appellant avers that a continuing resolution moved
enough money to the DOD operations and maintenance account to cover most
civilian salaries. Id. We agree with the administrative judge’s finding that the
DOD had to make significant spending cuts because of sequestration and
furloughs helped it avoid a deficit. ID at 2-3, 5. The appellant argues that the
agency had sufficient funds to cover most civilian salaries. PFR File, Tab 1 at 5.
However, the Board will not second-guess an agency’s decision to meet its need
for spending cuts through furloughs rather than other cost-saving measures.
Chandler, 120 M.S.P.R. 163, ¶ 9.
¶7 The appellant also questions whether WCF employees can be legally
furloughed under 10 U.S.C. § 129, which requires that DOD manage WCF
employees based on total force management policies, workload, and funds
available, and also prohibits management of these employees based on “man
years,” end strength, full-time equivalent positions, or maximum number of
employees. PFR File, Tab 1 at 6. No provision in this statute prohibits the
furlough of WCF employees. Further, even assuming WCF funds were exempt
from sequestration under 10 U.S.C. § 129 or some other law, the issue is whether
the furlough was a reasonable management solution to the financial restrictions
placed on the agency. Einboden v. Department of the Navy, 122 M.S.P.R. 302,
¶ 13 (2015). In Einboden, the Board found, in pertinent part, that employees paid
from WCF accounts are not shielded from being furloughed and the savings in
WCF accounts may be used to offset shortfalls in other areas of the agency’s
budget. Id., ¶¶ 13-18. The Board further found that it was reasonable for DOD to
consider its budget situation holistically, rather than isolating the situation of
each individual Navy organization or component, and the Board concluded that
the furlough action was a reasonable management solution to the financial
restrictions placed on the agency. Id.
5
¶8 Here, as in Einboden, we find no indication in the record that the Secretary
of Defense was prohibited from using savings resulting from the furloughs of
WCF employees to address other budgetary needs, and we find no reason to
disturb the administrative judge’s crediting of evidence to the contrary. ID
at 5-7; see Einboden, 122 M.S.P.R. 302, ¶ 16. The administrative judge found
that the agency offered unrebutted evidence that DOD had to make significant
spending cuts because of sequestration, and that furloughs helped it avoid a
deficit. ID at 5. The administrative judge also found that the agency had the
discretion to furlough WCF employees based on a holistic approach to its budget,
even if a particular department had adequate funding to avoid furloughs. ID
at 6-7. The administrative judge’s findings, that the agency met its burden of
proving that the furlough was a reasonable management solution to the financial
restrictions placed on it and were applied uniformly and consistently, ID at 5-10,
are supported by the applicable law and the record. We affirm the finding that
the agency met its burden of proving the furlough promoted the efficiency of the
service. ID at 10; see Einboden, 122 M.S.P.R. 302, ¶¶ 16, 18.
The appellant was provided with the required due process.
¶9 The appellant argues that the decision on who to furlough was
predetermined and no individual deciding official had the ability to make an
independent decision. PFR File, Tab 1 at 5. The deciding official for the
appellant’s furlough stated that she reviewed the positions under her supervision,
compared them to the exemption criteria outlined in the Secretary of the Navy’s
February 21, 2013 Memo, “Planning Guidance for Potential Civilian Furloughs,”
determined that 175 positions under her supervision met the exemption criteria,
and the individuals occupying those positions were not subject to the furlough.
CAF, Tab 6 at 14. She also stated that she had the authority to modify the
furlough if she determined that an individual held a position that was subject to
one of the established exemptions and the ability to recommend to the Assistant
Secretary of the Navy (Manpower and Reserve Affairs), through her chain of
6
command, a modification of the furlough if she concluded that a position should
be subject to an exemption not previously identified. Id. at 15. This is sufficient
decision-making authority, in the context of these agency-wide furloughs, to
satisfy the appellant’s right to due process. See Rodgers v. Department of the
Navy, 122 M.S.P.R. 559, ¶¶ 5-7 (2015). We thus affirm the administrative
judge’s finding that the appellant was provided with the requisite due process. ID
at 10-12.
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
7
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.