NAVFAC - DeBerry II v. Department of the Navy

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

NAVFAC - DEBERRY II, DOCKET NUMBER

Appellants, 1 DC-0752-15-0690-I-1

v.

DEPARTMENT OF THE NAVY, DATE: January 13, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Jeffrey A. Collis, Norfolk, Virginia, for the appellants.

Joseph J. Smith, Virginia Beach, Virginia, for Appellant Jeffrey A. Collis.

Jacquelyn Wright, Esquire, Port Hueneme, California, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

¶1 The appellants have filed a petition for review of the initial decision, which

sustained their furloughs. Generally, we grant petitions such as this one only

1

The appellants that are included in this consolidation are set forth in Appendix A of

this order.

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 petitioners’ 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 petitioners have not

established any basis under section 1201.115 for granting the petition for review.

Therefore, we DENY the petition for review. As set forth in ¶ 5 below, we

MODIFY the administrative judge’s analysis of whether the agency took the

furloughs for such cause as to promote the efficiency of the service. Except as

expressly MODIFIED by this final order, we AFFIRM the initial decision.

¶2 The appellants, employees of the Naval Facilities Engineering Command,

MidAtlantic, filed Board appeals challenging their furloughs for up to 88 hours

arising out of the March 1, 2013 Sequestration Order issued by the President

requiring across-the-board reductions in Federal spending pursuant to the

Balanced Budget and Emergency Deficit Control Act, as amended. Department

of the Navy Administrative Record for FY 2013 Furlough Appeals, Part 1,

Tab 18, available at http://www.mspb.gov/furloughappeals/navy2013.htm; see,

e.g., Collis v. Department of the Navy, MSPB Docket No. DC-0752-13-2344-I-1,

Initial Appeal File (Collis IAF), Tab 1 at 2-3. Their appeals were consolidated

with those of numerous other appellants under the caption NAVFAC DeBerry II v.

Department of the Navy, MSPB Docket No. DC-0752-15-0690-I-1, Consolidation

Appeal File (CAF), Tab 1.

¶3 Although the appellants requested a hearing, they were unable to produce

either of their witnesses and, because the agency itself proffered no witnesses, the

3

administrative judge decided the appeal on the written record. CAF, Tab 14,

Tab 17, Initial Decision (ID) at 1. She affirmed the furloughs, finding that they

were for such cause as to promote the efficiency of the service, the agency

afforded the appellants due process, and the appellants failed to establish their

affirmative defense of harmful procedural error. ID at 6-8.

¶4 Appellant Jeffrey A. Collis has filed a petition for review on behalf of

himself and the 106 other appellants that he is representing in this appeal,

renewing his argument that the furlough decisions were the product of harmful

procedural error. Petition for Review (PFR) File, Tab 2 at 3. 3 The agency has

filed a response. PFR File, Tab 4.

¶5 On review, the appellants have not challenged the administrative judge’s

finding that the furloughs were taken for such cause as to promote the efficiency

of the service. ID at 6. However, the administrative judge’s efficiency of the

service analysis does not follow the framework set forth in Dye v. Department of

the Army, 121 M.S.P.R. 142, ¶ 9 (2014), and therefore must be modified.

Specifically, an agency may furlough an employee for 30 days or less “only for

such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7512(5),

7513(a). The concept of “cause” in the context of a furlough appeal encompasses

whether the appellant met the criteria established by the agency for being subject

to, and not excepted from, the furlough. Dye, 121 M.S.P.R. 142, ¶ 9. The agency

has the burden of proof on this issue. Id., ¶¶ 9-10; see Tinker v. Department of

Air Force, 121 M.S.P.R. 385, ¶¶ 14-15 (2014). Thus, to prove that a furlough

was taken for such cause as to promote the efficiency of the service, the agency

must show not only that the furlough in general was a reasonable management

solution to work shortage or financial restrictions and that the agency applied its

3

Mr. Collis designated another appellant, Joseph J. Smith, as his representative.

Collis IAF, Tab 1 at 3. Mr. Smith, in turn, designated Mr. Collis as his representative.

Smith v. Department of the Navy, MSPB Docket No. DC-0752-13-2441-I-1, Initial

Appeal File, Tab 2. Both Mr. Collis and Mr. Smith are signatories to the petition for

review. PFR File, Tab 2 at 3.

4

determination as to which employees to furlough in a fair and even manner,

Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013), but also

that the appellant met the criteria established by the agency for being subject to,

and not excepted from, the furlough, Dye, 121 M.S.P.R. 142, ¶¶ 9-10. For the

reasons explained in the initial decision, we agree with the administrative judge

that the furloughs were a reasonable management solution to the financial

restrictions brought on by the sequester and that the agency applied the furloughs

in a fair and even manner. ID at 6. We also find that the parties stipulated that

the appellants met the criteria established by the agency for being subject to, and

not excepted from, the furlough. Id.; CAF, Tab 12 at 6, Tab 13 at 4. Accordingly

we affirm the administrative judge’s analysis as modified, finding that the agency

took the furlough actions for cause as set forth in Dye and that they promoted the

efficiency of the service as set forth in Chandler.

¶6 Turning to the petition for review itself, the appellants argue that the

furlough actions are contrary to a June 2001 memorandum of agreement between

the agency’s Public Works Center in Norfolk, Virginia, and the Tidewater

Virginia Federal Employees Metal Trades Council. PFR File, Tab 2 at 3;

Collis IAF, Tab 22 at 4-6. According to the memorandum of agreement, the

agency is responsible for providing emergency support after business hours.

Collis IAF, Tab 22 at 4. To that end, it has instituted an on-call program, under

which covered employees, on a volunteer or rotating basis, are required to be on

call to report to the job site within 2 hours in the event of an after-hours

emergency. Id. at 4-5. The memorandum sets forth the requirements for

employees in on-call status and the terms and conditions concerning

implementation of the program. Id. at 5-6. The appellants argue that, had the

agency followed the memorandum of agreement, it would not have furloughed

them, for if there were an emergency requiring on-call employees to report to

duty during a furlough day, the employees would have been prevented from

coming to work. PFR File, Tab 2 at 3.

5

¶7 We disagree. To prove that the agency committed harmful procedural error

under 5 U.S.C. § 7701(c)(2)(A), the appellants must show both that the agency

committed procedural error and that the error was harmful. Parker v. Defense

Logistics Agency, 1 M.S.P.R. 505, 513 (1980). As the administrative judge

explained, the agency committed no procedural error because nothing in the

memorandum of agreement requires the agency to place employees in an on-call

status. ID at 7. It merely governs the terms and conditions of the on-call

program. Therefore, even if the agency suspended the on-call program to

implement the furlough, as the appellants alleged below, Collis IAF, Tab 8 at 4,

Tab 26 at 6, this did not constitute a violation of the memorandum of agreement.

There is simply nothing in the memorandum that requires the agency to keep its

employees in an on-call status or that prevents it from suspending or

discontinuing the on-call program in favor of having contractor employees

assume those duties, as the appellants alleged that the agency did below.

Collis IAF, Tab 8 at 4, Tab 26 at 6. We find that, because the appellants have not

established that the agency violated the memorandum of agreement, they have not

proven their harmful error defense. See Hylick v. Department of the Air Force,

85 M.S.P.R. 145, ¶ 13 (2000).

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

The initial decision, as supplemented by this Final Order, constitutes the

Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to

request review of this final decision by the U.S. 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

6

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 U.S. 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 U.S. 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 U.S. 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.

7

APPENDIX A

NAVFAC - DeBerry II

DC-0752-15-0690-I-1

Alan C. Johnson DC-0752-13-2827-I-1

Allan W. Wright DC-0752-13-2804-I-1

Anthony Williams DC-0752-13-2138-I-1

Brian D. Calvert DC-0752-13-2433-I-1

Brian G. Jerlin DC-0752-13-4348-I-1

Bruce W. Harrod DC-0752-13-2820-I-1

Bryan D. Vanlandingham DC-0752-13-2668-I-1

Calvin R. Spence DC-0752-13-2872-I-1

Caroll W. Foster DC-0752-13-2202-I-1

Carroll L. Howard DC-0752-13-2817-I-1

Cary D. Jackson DC-0752-13-2788-I-1

Charles K. Fetty DC-0752-13-2422-I-1

Charles W. Ackerman DC-0752-13-2413-I-1

Christopher L. Spelce DC-0752-13-2384-I-1

Clair G. Swegan DC-0752-13-2147-I-1

Clement M. Tuttle DC-0752-13-2389-I-1

Cornelius J. Drake DC-0752-14-0076-I-1

Damon Showers DC-0752-13-2985-I-1

Dan B. Norton DC-0752-13-2417-I-1

Darius R. Jordan DC-0752-13-2683-I-1

David L. Murphy DC-0752-13-2420-I-1

David L. Pettaway DC-0752-13-3020-I-1

David M. Horner DC-0752-13-2812-I-1

David P. McLendon DC-0752-13-2662-I-1

8

Dennis A. Young DC-0752-13-2808-I-1

Derrick J. Sampson DC-0752-13-2838-I-1

Donna M. Harden DC-0752-13-4286-I-1

Douglas W. Humphrey DC-0752-13-4373-I-1

Edward E. Kemper DC-0752-13-2663-I-1

Elliot L. Carlton DC-0752-13-2421-I-1

Eric A. Geba DC-0752-13-2398-I-1

Eyvine Harris DC-0752-13-2888-I-1

Foluke M. Alvarez DC-0752-13-4735-I-1

Frederick E. Conley DC-0752-13-3018-I-1

Gary W. Sawyer DC-0752-13-2860-I-1

George V. Dimas DC-0752-13-2904-I-1

Gregory L. Taylor DC-0752-13-2146-I-1

Harry D. Roberson DC-0752-13-2681-I-1

James A. Haith DC-0752-13-2449-I-1

James M. Morris DC-0752-13-2211-I-1

Jason M. Brader DC-0752-13-2145-I-1

Jason M. Treitel DC-0752-13-4784-I-1

Jay Harmor DC-0752-13-2144-I-1

Jeffery R. Rash DC-0752-13-2341-I-1

Jeffrey A. Collis DC-0752-13-2344-I-1

John A. Hugo DC-0752-13-2200-I-1

John E. Lancer DC-0752-13-2826-I-1

John F. Turner DC-0752-13-3009-I-1

John G. Manall DC-0752-13-2834-I-1

Joseph F. Smith DC-0752-13-2435-I-1

Joseph J. Smith DC-0752-13-2441-I-1

Joseph W. Talarico DC-0752-13-2431-I-1

Joshua D. Dozier DC-0752-13-2841-I-1

9

Justin A. Nyhaug DC-0752-13-4861-I-1

Justin T. Brooks DC-0752-13-2148-I-1

Kenneth H. Wolfe DC-0752-13-2388-I-1

Kevin R. Haselbush DC-0752-13-2450-I-1

Kiona N. Boyd DC-0752-13-2833-I-1

LaVar M. Bates DC-0752-13-4841-I-1

Larry D. Brown DC-0752-13-2801-I-1

Larry N. Joseph DC-0752-13-2443-I-1

Leslie E. Beliles DC-0752-13-2412-I-1

Mark E. Stankavich DC-0752-13-2829-I-1

Mark N. Ahrens DC-0752-13-2338-I-1

Mary Jane Atherton DC-0752-13-4845-I-1

Matthew L. Wade DC-0752-13-2407-I-1

Matthew O'Connor DC-0752-13-2356-I-1

Michael G. South DC-0752-13-2830-I-1

Michael Matern DC-0752-13-2348-I-1

Nathaniel Pringle DC-0752-13-2419-I-1

Orville R. Theel DC-0752-13-4807-I-1

Paul E. Vaughan DC-0752-13-2437-I-1

Paul H. Eley DC-0752-13-2438-I-1

Perry W. Babb DC-0752-13-4798-I-1

Ramdeo Ramlatchan DC-0752-13-2894-I-1

Randy B. Ives DC-0752-13-2353-I-1

Ray W. Walker DC-0752-13-2805-I-1

Raymond L. Wine DC-0752-13-2828-I-1

Rebecca J. Luce DC-0752-13-2386-I-1

Robert A. Flora DC-0752-13-2141-I-1

Robert E. Lawless DC-0752-13-2822-I-1

Robert G. Tucker DC-0752-13-2436-I-1

10

Robert J. Kneip DC-0752-13-2418-I-1

Robert L. Savant DC-0752-13-2839-I-1

Robert N. Collins DC-0752-13-2177-I-1

Robert P. D'Adamo DC-0752-13-2334-I-1

Robert S. Rawls DC-0752-13-2980-I-1

Roger D. Papenfuhs DC-0752-13-2399-I-1

Ronald A. Smith DC-0752-13-2410-I-1

Ronald P. Dick DC-0752-13-2140-I-1

Ronald Ricks DC-0752-13-2865-I-1

Sanny J. Cogliandro DC-0752-13-2181-I-1

Shante Gilliehan DC-0752-13-2355-I-1

Stephen C. Coston DC-0752-13-6832-I-1

Terry L. Seymour DC-0752-13-4409-I-1

Thomas H. Richard DC-0752-13-2423-I-1

Thomas W. Parker DC-0752-13-3014-I-1

Todd G. Cologgi DC-0752-13-2924-I-1

Torel L. Turner DC-0752-13-3017-I-1

Troy A. Jordan DC-0752-13-2440-I-1

Wallace O. Hendrix DC-0752-13-2831-I-1

Wayne T. Cheatham DC-0752-13-2408-I-1

William E. Clark DC-0752-13-2844-I-1

William J. Langlois DC-0752-13-6834-I-1

William S. Lanagan DC-0752-13-4772-I-1

Willie E. Young DC-0752-13-2387-I-1

Willie L. McCutchen DC-0752-13-2898-I-1