The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FREDERICK RYAN SANDERS, 1 DOCKET NUMBER
Appellant, CH-0752-13-4544-I-1
v.
DEPARTMENT OF DEFENSE, DATE: November 10, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Frederick Ryan Sanders, St. Louis, Missouri, pro se.
Amy Josselyn and Jack W. Rickert, Springfield, 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 action furloughing him from his position. Generally, we
1
Our findings in this decision apply only to Appellant Sanders and not to the other
appellants who previously were part of the consolidation in this matter, GOAWBHR v.
Department of Defense, MSPB Docket No. PH-0752-14-0749-I-1, but did not file a
petition for review.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 chief administrative 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, 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 On May 31, 2013, the National Geospatial-Intelligence Agency (NGA) 3
informed the appellant, a Supervisory GEOINT 4 Analyst with the Source
Directorate, Maritime Safety Office, Southern Ocean Branch, that it proposed to
furlough him for no more than 11 workdays due to the “extraordinary and serious
budgetary challenges facing the Department of Defense [(DOD)] for the
remainder of Fiscal Year (FY) 2013, the most serious of which is the sequester
that began on March 1, 2013.” Initial Appeal File (IAF), Tab 1. Subsequently,
the NGA’s deciding official determined that the reason for the proposed furlough
remained valid, the procedures and conditions related to the furlough had been
determined to be the most equitable means of implementing the furlough, and the
appellant would be required to be on a discontinuous furlough for no more than
11 workdays during the period from July 8, through September 21, 2013. Id. He
3
The NGA is both an intelligence component of the Department of Defense (DOD) and
a combat support agency.
4
GEOINT is an abbreviation for Geospatial Intelligence.
3
ultimately served 6 workdays on furlough. GOAWBHR v. Department of Defense,
MSPB Docket No. PH-0752-14-0749-I-1, Consolidation Appeal File (CAF),
Tab 18, Initial Decision (ID) at 5.
¶3 The appellant filed an individual appeal challenging the furlough, which the
Board consolidated with related appeals of other employees. CAF, Tab 2. All of
the appellants raised certain similar issues regarding the propriety of the furlough,
and the individual appellants, including Appellant Sanders, raised specific issues
related to their particular situations. IAF, Tab 1.
¶4 Following the requested hearing, the chief administrative judge issued an
initial decision affirming the furlough actions. ID at 3, 47. He first addressed the
appellants’ common claims. He found that, even if the NGA had enough funding
to avoid furloughs for its employees, there was a legitimate basis for the
DOD-wide furloughs because of the serious budget shortfall it faced. ID
at 15-16. He further found, consistent with the Board’s decision in Chandler v.
Department of the Treasury, 120 M.S.P.R. 163, ¶¶ 8-9 (2013), that certain issues
were beyond the Board’s purview because they were matters left to the NGA’s
discretion. For example, he found that, even if the furloughs could have been
avoided by taking other steps, the Board could not second-guess the agency’s
assessment of its mission requirements and priorities and that that was so, even if
the furloughs harmed the NGA’s timely performance of its work or otherwise
harmed its mission. ID at 16. The chief administrative judge further found that
the way in which the DOD structured the furlough, including its decision to
furlough virtually all of its civilian employees regardless of the importance of
their duties, was beyond the Board’s purview, so long as distinctions were not
made for impermissible reasons. Next, the chief administrative judge found that
the decision not to furlough National Intelligence Program (NIP) employees, but
only Military Intelligence Program (MIP) employees, had a legitimate basis
because NIP employees are funded by a non-DOD funding stream such that
furloughing them would not have impacted the DOD budget, and that the decision
4
of the Director of National Intelligence (DNI) and the Secretary of Defense
(SECDEF) in this regard could not be disturbed by the Board. 5 ID at 18; see
Defense Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶¶ 9-12
(2015). As for the appellants’ argument that their positions should have been
NIP-funded rather than MIP-funded, the chief administrative judge found that this
challenge too was outside the scope of the Board’s review. He acknowledged that
some NGA employees were furloughed for fewer days than others because they
were identified as MIP-funded late in the furlough process based on an audit that
occurred in August 2013, but he found that this was a legitimate reason for the
difference in treatment. 6 ID at 19. The chief administrative judge considered, but
rejected, the appellants’ claim that the agency committed a due process violation
or harmful procedural error regarding the notice and opportunity to respond. ID
at 20-22.
¶5 The chief administrative judge then addressed the individual claims raised
by Appellant Sanders. The chief administrative judge noted that the appellant did
not dispute that, as a Supervisory GEOINT Analyst, he properly was serving in an
MIP-funded position, but argued that, because acting supervisors were not
furloughed, he should not have been furloughed. ID at 29. The appellant referred
specifically to two acting supervisors who were initially furloughed, but who,
based on an exception granted by the Undersecretary of Defense in late July 2013,
after the furlough began, had their furloughs terminated before those of other
employees, including the appellant. The exception was granted for certain Safety
of Navigation (SON) employees, specifically Analysts who directly provided
needed SON products and services, but it did not apply to supervisors or Staff
Officers. Because the positions of record of the two individuals were SON
Analysts, and because they only were serving as acting supervisors, the chief
5
The NGA receives its funding from the NIP, which is administered by the DNI, and
the MIP, which is administered by the SECDEF. ID at 6.
6
The audit, however, did not affect any of these particular employees. ID at 10.
5
administrative judge found that the agency properly determined their furlough
status based upon their positions of record and not their acting supervisor status,
and that therefore the appellant was not similarly situated to those two individuals
after the exception was granted. ID at 29-33.
¶6 On review, the appellant argues that because the two acting supervisors
performed the same duties as he did, they all should have all been treated the
same for purposes of the furlough. Petition for Review (PFR) File, Tab 1 at 4.
An agency meets its burden of proving that a furlough promotes the efficiency of
the service 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.” 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 adverse
action furlough uniformly and consistently, just as it is required to apply a
reduction in force (RIF). Chandler, 120 M.S.P.R. 163, ¶ 8. This does not mean
that the agency is required to apply the furlough in such a way as to satisfy the
Board’s sense of equity. Rather, it means that the agency is required to treat
similarly situated employees similarly and to justify any deviations with
legitimate management reasons. Here, in addressing this issue, the chief
administrative judge properly looked for guidance to RIF principles. Id.; see
5 C.F.R. § 752.404(b)(2) (applying RIF competitive level principles to adverse
action furloughs). He found that RIF rights, including competitive level, are
based on an individual’s position of record and that therefore the agency properly
determined the two individuals’ furlough status based upon their positions of
record, not their supervisory status. See Clark, 24 M.S.P.R. at 225-26; ID
at 34-35. The chief administrative judge further found that, even if the agency
had made the determination incorrectly regarding the two individuals, the result
would have been that they would not have been exempted from the furlough, and
not that the appellant would have been exempted. ID at 33. We find, on this
6
basis, that the appellant has not shown error in the chief administrative judge’s
consideration of the employees’ positions of record, rather than the nature of their
duties, in determining that the agency applied the furlough in a fair and even
manner.
¶7 The appellant contends that the chief administrative judge abused his
discretion in not allowing him to argue that he was improperly denied the right to
respond to the NGA/DOD officials as to why he should have been included in the
exception for certain SON employees. PFR File, Tab 1 at 4-5. The record does
not support a finding that the agency committed a procedural error in not
permitting a challenge to the agency’s decision regarding the exception. Further,
even assuming that the agency should have allowed such a challenge, the
appellant has failed to demonstrate any prejudice to his substantive rights because
he has not shown that any error likely would have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
such error. See Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶¶ 9-11
(2015).
¶8 Next, the appellant disputes the chief administrative judge’s statement that
he dropped a portion of his appeal regarding who the appropriate deciding official
should have been in his case. PFR File, Tab 1 at 5; ID at 15 n.11. The summary
of the telephonic prehearing conference reflects that the appellant raised a
harmful procedural error claim as to the action not having been taken by those in
his immediate chain of command, but that “he decided to drop this issue.” CAF,
Tab 14 at 2. The February 13, 2015 summary provided that any objection to its
accuracy must be filed in writing no later than February 18, 2015. Id. at 11. The
record does not reflect that the appellant noted any objection to the summary. His
failure to do so then precludes him from now raising the issue. See Brown v.
Department of the Army, 96 M.S.P.R. 232, ¶ 6 (2004).
¶9 Finally, the appellant argues that he was not permitted to show that the
NGA/DOD failed to consider his actual duties as set forth in his official position
7
description. PFR File, Tab 1 at 5. The chief administrative judge acknowledged
that, in determining RIF competitive levels where, as here, pay bands are
involved, an agency may (but need not) look beyond an employee’s official
positon of record with evidence of the employee’s actual duties and
responsibilities, see 5 C.F.R. § 351.403(a)(2)(ii), but he found that that subsection
did not alter the Board’s case law holding that the position of record controls for
RIF purposes, ID at 35 n.21. The appellant has not shown error in the chief
administrative judge’s finding, see, e.g., Jicha v. Department of the Navy,
65 M.S.P.R. 73, 77 (1994), and therefore the appellant has not shown that the
chief administrative judge abused his discretion in making a ruling that was based
upon that finding, see Jezouit v. Office of Personnel Management, 97 M.S.P.R.
48, ¶ 12 (2004) (finding that, to obtain reversal of an initial decision on the
ground that the administrative judge abused his discretion in excluding evidence,
the petitioning party must show on review that relevant evidence, which could
have affected the outcome, was disallowed), aff’d, 121 F. App’x 865 (Fed. Cir.
2005); see 5 C.F.R. § 1201.41(b)(3) (administrative judges have the authority to
rule on offers of proof and receive relevant evidence), (b)(6) (administrative
judges have the authority to regulate the course of the hearing).
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,
8
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
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.