DLA - Holwick v. Department of Defense

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

DLA - HOLWICK, 1 DOCKET NUMBER

Appellant, DC-0752-15-0780-I-1

v.

DEPARTMENT OF DEFENSE, DATE: March 10, 2016

Agency.

THIS FINAL ORDER IS NONPRECEDENTIAL 2

Duane E. Lowden, Fort Washington, Maryland, pro se.

Thomas L. Mills, Fort Belvoir, Virginia, pro se.

Michael Lawrence Walters, Esquire, and Richard Saviet, Esquire, Fort

Belvoir, Virginia, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

FINAL ORDER

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

sustained their furloughs. Generally, we grant petitions such as these only when:

1

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

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

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 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 petitioners have not established any basis under

section 1201.115 for granting the petitions for review. Therefore, we DENY the

petitions for review and AFFIRM the initial decision, which is now the Board’s

final decision. 5 C.F.R. § 1201.113(b).

¶2 A number of employees for the agency’s Defense Logistics Agency (DLA)

in Fort Belvoir, Virginia filed the instant appeal, challenging their furlough of

6 workdays between July and September 2013. See, e.g., Lowden v. Department

of Defense, MSPB Docket No. DC-0752-13-5443‑I‑1, Initial Appeal File

(Lowden IAF), Tab 2, Tab 5 at 4, 9; Mills v. Department of Defense, MSPB

Docket No. DC-0752-13-4718-I-1, Initial Appeal File (Mills IAF), Tab 2, Tab 7

at 4, 9. The administrative judge consolidated the appeals for adjudication.

DLA – Holwick v. Department of Defense, MSPB Docket No. DC-0752-15-0780-

I-1, Consolidation Appeal File (CAF), Tab 1. Because none of the appellants

appeared for a prehearing conference, the administrative judge canceled the

scheduled hearing and issued a decision on the written record, affirming the

furloughs. CAF, Tab 10, Tab 14, Initial Decision (ID).

¶3 Two appellants have filed petitions for review of the initial decision.

Lowden v. Department of Defense, MSPB Docket No. DC-0752-13-5443-I-1,

Petition for Review (Lowden PFR) File, Tab 2; Mills v. Department of Defense,

MSPB Docket No. DC-0752-13-4718-I-1, Petition for Review (Mills PFR) File,

3

Tab 1. 3 In short, the appellants reassert that they were similarly situated to a

number of employees who were exempted from the furloughs, and the agency

failed to provide sound justification for the different treatment. E.g., Lowden

PFR File, Tab 1 at 4-5. The agency has filed a response to each petition. Lowden

PFR File, Tab 2; Mills PFR File, Tab 2. One appellant has filed a reply. Lowden

PFR File, Tab 3.

¶4 A furlough of 30 days or less is 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 that the agency applied its determination as to which

employees to furlough in a “fair and even manner.” 4 Id., ¶ 8 (quoting 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 furlough action uniformly and

consistently. Id. An agency is not required to apply a furlough in such a way as

to satisfy the Board’s sense of equity. Id. An agency is required to treat similar

employees similarly and to justify any deviations with legitimate management

reasons. Id.

¶5 The agency presented evidence that police officers at DLA, Fort Belvoir,

generally fell into one of four categories: (a) GS-6/7 rank and file officers;

(b) GS-9/10 nonadministrative supervisory police officers; (c) GS-11/12

administrative and supervisory police officers; and (d) GS-9 administrative and

nonsupervisory training officers/instructors. E.g., CAF, Tab 13 at 4-5. The

3

Although the appellants filed separate petitions for review, the arguments contained

within mirror one another. Compare Lowden PFR File, Tab 1, with Mills PFR File,

Tab 1.

4

The appellants do not contest that furloughs were a reasonable management solution

to the agency’s budgetary constraints. See, e.g., Lowden IAF, Tab 2 at 16-17; Lowden

PFR File, Tab 1 at 5.

4

agency determined that the police officers in categories (a) and (b) would be

exempt from the furloughs because they were necessary to protect life and

property, while those in categories (c) and (d) were not necessary and would be

furloughed. 5 E.g., CAF, Tab 5 at 21, Tab 13 at 4-5.

¶6 The appellants currently before us are among those in category (d); they

hold the GS-9 position of Police Officer Instructor. Lowden IAF, Tab 5 at 9;

Mills IAF, Tab 7 at 9; CAF, Tab 13 at 5. However, they reassert that they are

similarly situated to officers who were exempted from the furloughs because they

all are classified as series 0083 Federal Law Enforcement Officers and they all

are subject to physical fitness standards. E.g., Lowden PFR File, Tab 1 at 4-5.

The appellants further argue that, although they perform additional teaching

functions, they perform law enforcement duties similar to those of the exempted

officers, even doing so during the furlough period, generally, so the agency could

avoid the use of overtime. Id. at 5. We discern no basis for disturbing the initial

decision, including the administrative judge’s finding that the furloughed

appellants were not similarly situated to those excepted from the furlough. See

ID at 11‑13.

¶7 Which employees are similarly situated for purposes of an adverse action

furlough will be decided on a case-by-case basis, but the Board will be guided by

reduction-in-force (RIF) principles, including RIF competitive-level principles.

5

In implementing furloughs, generally, the Secretary of Defense created a number of

limited exemptions. See Defense Logistics Agency Administrative Record for FY 2013

Furlough Appeals (AR), Part 2, Tab 7 at 94-95, available at http://www.mspb.gov/

furloughappeals/dla2013.htm. Included was a provision that provided, “In order to

avoid harm to mission, those employees necessary to protect safety of life and property

are excepted to the extent necessary to protect life and property.” Id. at 94. Although

the appellants argue that they are similarly situated to some employees the agency

deemed excepted under that provision, they do not argue that the provision mandated

they also be excepted. See, e.g., Lowden PFR File, Tab 1 at 4-5; see generally Lopez v.

Department of the Navy, 121 M.S.P.R. 647, ¶ 11 (2014) (recognizing that the exception

contemplated that some employees occupying positions that are generally necessary to

protect life and property could be excepted while others would not be excepted).

5

Chandler, 120 M.S.P.R. 163, ¶ 8; see Weathers v. Department of the

Navy, 121 M.S.P.R. 417, ¶ 6 (2014); 5 C.F.R. § 752.404(b)(2). In determining

the retention standing of competing employees during a RIF, each agency must

establish competitive levels consisting of all positions in a competitive area

which are in the same grade (or occupational level) and classification series, and

which are similar enough in duties, qualification requirements, pay schedules, and

working conditions so that an agency may reassign the incumbent of one position

to any of the other positions in the level without undue interruption.

Weathers, 121 M.S.P.R. 417, ¶ 8 (citing 5 C.F.R. §§ 351.401, 351.403(a)(1)).

¶8 Considering the aforementioned RIF competitive-level principles, it is

evident that the GS-9 appellants are not similarly situated to the GS-6/7

rank-and-file officers the agency exempted from the furlough because they hold

different grade levels. Compare CAF, Tab 13 at 8-16 (GS-0083-06 Police Officer

position description), 18-26 (GS-0083-07 Lead Police Officer position

description), with id. at 52-55 (GS-0083-09 Police Officer Instructor position

description); see Naval Station Norfolk – Hearing 2 v. Department of the

Navy, 123 M.S.P.R. 144, ¶¶ 17-18 (2016) (finding that detective and police

officer positions required different competitive levels in the context of a furlough

because they occupied different grade levels). This is so, despite the positions

sharing the same classification series. See Naval Station Norfolk – Hearing

2, 123 M.S.P.R. 144, ¶ 21 (recognizing that the inclusion of positions in the same

classification series does not require an agency to place them in the same

competitive level).

¶9 Next, even if the appellants intended to assert that they are similarly

situated to the exempted nonadministrative supervisory officers, 6 we would

6

In their petitions, the appellants generally alleged that they are similarly situated to

officers who were exempt from the furloughs. E.g., Lowden PFR File, Tab 1 at 4-5.

However, that argument appears directed at the rank-and-file officers, not supervisory

officers. See id. Although the appellants have alleged that they perform law

6

disagree. For positions to occupy the same competitive level, anyone who

qualifies for one position must be able to qualify for all. Id., ¶ 19. It is the

nature of the positions, not the qualifications of the incumbents, which determines

properly established competitive levels. Id. Comparing the position description

of the nonadministrative supervisory officers who were exempted from the

furlough with that of the appellants, only the former requires serving as an

immediate supervisor to three to five officers, while only the latter includes

duties such as developing training programs based upon regulatory requirements,

budgetary forecasting, and coordinating tuition assistance. Compare CAF,

Tab 13 at 28-34 (GS-0083-09 Supervisory Police Officer position description),

with id. at 52-55 (GS-0083-09 Police Officer Instructor position description).

Therefore, they belong in separate competitive levels. See Coleman v.

Department of Education, 21 M.S.P.R. 574, 580-81 (1984) (finding that evidence

supported separate competitive levels where the duties and responsibilities of a

supervisory position “obviously differ[ed] from those of nonsupervisory positions

in that they involve responsibility for the supervision of other employees,”

despite both falling within the same occupational series). As such, we find that

the appellants were not similarly situated to the supervisory officers for purposes

of the furlough, and the administrative judge properly sustained their furloughs.

See Naval Station Norfolk – Hearing 2, 123 M.S.P.R. 144, ¶¶ 20-21 (finding that

detectives and supervisory police officers were not similarly situated for purposes

of a furlough because, inter alia, the detective position did not include regular

supervisory duties or responsibilities).

enforcement duties in addition to their instructor duties, they have not argued that they

perform supervisory duties. See id.

7

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS

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

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

8

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.

9

APPENDIX A

DLA - Holwick

DC-0752-15-0780-I-1

Duane E. Lowden DC-0752-13-5443-I-1

Thomas L. Mills DC-0752-13-4718-I-1