The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DAVID A. VOSS, DOCKET NUMBER
Appellant, CH-0752-13-2793-I-1
v.
DEPARTMENT OF DEFENSE, DATE: March 16, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
David A. Voss, New Brighton, Minnesota, pro se.
Karin A. Greeman, Esquire, Bloomington, Minnesota, 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
sustained his furlough from employment due to sequestration. 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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 appellant serves as a contract administrator with the Department of
Defense’s Defense Contract Management Agency and was furloughed from
employment for no more than 88 hours following the President’s March 1, 2013
sequester order. Initial Appeal File (IAF), Tab 10 at 16-17. The appellant filed
an appeal of the agency’s furlough action, which the administrative judge
sustained. IAF, Tab 18, Initial Decision (ID). In her initial decision, the
administrative judge found that the agency established cause for taking the
furlough due to the budget constraints placed on the agency following
sequestration and that the agency proved that it imposed the furlough in a fair and
even manner. ID at 4-5. The administrative judge, moreover, rejected the
appellant’s claims that the agency could have avoided furloughing employees by
implementing other cost-savings measures and that the agency treated tenured
employees differently than either probationary employees or Presidential
appointees. ID at 8. Finally, the administrative judge found no evidence that the
agency failed to conduct an individualized assessment of the need to furlough
employees or that the agency committed harmful procedural error in imposing the
furlough. ID at 8-9.
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¶3 The appellant has filed a petition for review reasserting many of the same
arguments he presented below. Petition for Review (PFR) File, Tab 1.
Specifically, he argues that a furlough should not be classified as an adverse
action because it is nondisciplinary in nature and that other measures could have
been taken that would have offset the need to furlough employees. Id. at 5-6.
The appellant also reasserts that 5 C.F.R. part 752 is unfair because it treats
tenured employees differently than other Federal employees for the purposes of a
furlough and that the agency treated certain Federal employees differently based
on their employment status. Id. at 9, 11. The agency has filed a response in
opposition to the petition for review, and the appellant has filed a reply. PFR
File, Tabs 3-4.
¶4 The Board has found that 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. Tinker AFSC/DP v. Department of the Air
Force, 121 M.S.P.R. 385, ¶ 14 (2014). A “fair and even manner” means that the
agency applied the adverse action furlough uniformly and consistently.
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Proving
that the furlough was imposed in such a manner, however, does not mean that the
agency must satisfy the Board’s sense of equity. Id. Rather, the agency must
show that it treated similar employees similarly and it must justify any deviations
with legitimate management reasons. Id.
¶5 The Board, moreover, has held that the efficiency of the service standard for
a furlough action does not encompass agency spending decisions per se and that
the efficiency of the service must be judged from the viewpoint of the Department
of Defense (DOD), and not from the individual military departments under its
authority. See Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶¶ 13-14
(2014); Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 11 (2014). In
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Yee, the Board sustained the furlough action upon finding that it was reasonable
for the DOD to consider its budget situation holistically, rather than considering
each military department’s situation individually. Yee, 121 M.S.P.R. 686,
¶¶ 13-14. Additionally, in Einboden v. Department of the Navy, 122 M.S.P.R.
302, ¶ 18 (2015), the Board explained that an agency is not required to show that
any funds saved from an employee’s furlough were actually used for any other
purpose; instead, the Board found that, to meet the efficiency of the service
standard, it is enough for the agency to show that the furlough action was a
reasonable management solution when the action was taken. The U.S. Court of
Appeals for the Federal Circuit recently issued a precedential decision affirming
Einboden, finding that an agency is not “required to show actual reprogramming
of the funds saved by [an employee’s] furlough.” Einboden v. Department of the
Navy, 802 F.3d 1321, 1325 (Fed. Cir. 2015).
¶6 We have considered the appellant’s arguments on petition for review and
find that they fail to present a basis for overturning the initial decision. We agree
with the administrative judge that the agency established its need to furlough
employees based on the budget constraints imposed by the sequester order and
that it did so in a fair and even manner. ID at 4-5. The appellant’s argument that
the agency could have avoided furloughing employees by enacting preventative
cost-savings measures does not undermine the administrative judge’s finding that
the agency established its need to furlough employees based on a budget shortfall.
An agency’s spending decisions are generally beyond the scope of the Board’s
consideration in such appeals, and, as stated above, an agency need not satisfy the
Board’s sense of equity in establishing a need to furlough an employee. See
Gajdos, 121 M.S.P.R. 361, ¶¶ 10-11.
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¶7 We further find no merit to the appellant’s allegations of differing treatment
based on his status as a tenured employee. 2 As the administrative judge carefully
explained, the regulations cited by the appellant outline the statutory rights of
tenured employees in the competitive and excepted service under chapter 75 of
title 5, and these rights do not apply to, among others, probationary employees,
employees appointed “by and with the advice and consent of the Senate,” and
Presidential appointees. 5 C.F.R. § 752.402(d)(1), (3), (13). These employees’
exclusion from coverage under chapter 75 does not imply that an agency may not
furlough such employees; rather, their exclusion only means that they do not have
adverse action appeal rights to the Board. See 5 U.S.C. § 7511(b); Hamlett v.
Department of Justice, 90 M.S.P.R. 674, ¶ 8 (2002). Additionally, we find no
support in the record for the appellant’s argument that tenured employees or
employees who were covered by the Federal Employees’ Retirement System were
specifically targeted by the agency or that their tenured status played a role in the
agency’s decision making. See Kelly v. Department of the Army, 121 M.S.P.R.
408, ¶ 15 (2014) (explaining that an appellant’s tenure generally does not play a
role in a furlough of 30 days or less); PFR File, Tab 1 at 11.
¶8 We have considered the remainder of the appellant’s challenges to the
agency’s furlough action, and we find that they do not present a basis for
overturning the furlough. As the Federal Circuit recently explained, an agency
has “wide berth” in determining “what type of adverse action is necessary to
promote the efficiency of the service,” and we find that the agency implemented
its furlough in a fair and even manner in this case. Einboden, 802 F.3d at 1325.
The administrative judge’s initial decision sustaining the appellant’s furlough is
accordingly affirmed.
2
We find no merit to the appellant’s claim that Federal employees, as a whole,
comprise a cognizable race under Title VII of the Civil Rights Act of 1964. PFR File,
Tab 1 at 10-11, Tab 4 at 7.
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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:
U.S. 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
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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.