James Moser v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
JAMES MOSER, 1 DOCKET NUMBER
Appellant, DC-0752-13-2643-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 3, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
James Moser, Arlington, Virginia, pro se.
Andrea L. Geiger, Esquire, April Christensen, Esquire, Craig G. Trower,
Esquire, and Tracey Rockenbach, Esquire, Washington, D.C., for the
agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a), this case was part of a consolidation, Financial
Management and Comptroller v. Department of the Navy, MSPB Docket No.
DC-0752-14-0477-I-1.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 The agency furloughed the appellant from his Supervisory Financial
Management Analyst position with its Financial Management and Comptroller
Operations Division for 6 work days based on “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,” i.e., across-the-board reductions to federal budgetary resources
caused by the Budget Control Act of 2011, as amended by the American Taxpayer
Relief Act of 2012. Initial Appeal File (IAF), Tab 1 at 10-13, Tab 3 at 4-10. The
appellant filed an appeal challenging the furlough action, which the Board
consolidated with the appeals of similarly-situated employees. IAF, Tab 1;
3
MSPB Docket No. DC-0752-14-0477-I-1, Consolidated Appeal File (CAF),
Tab 2.
¶3 After holding the requested hearing, the administrative judge affirmed the
furlough actions. CAF, Tab 16, Initial Decision (ID) at 1, 15. He found that the
agency proved by preponderant evidence that the furlough actions promoted the
efficiency of the service and that the agency applied its determination as to which
employees to furlough in a fair and even manner. ID at 21-22. In so finding, the
administrative judge rejected the appellant’s argument that the Secretary of
Defense exceeded his authority in ordering the furlough actions over employees
of the Department of the Navy (Navy). ID at 22-23; CAF, Tab 5 at 6-7 & n.3.
¶4 Of the several appellants whose appeals were consolidated for processing,
only the appellant has filed a petition for review. Petition for Review (PFR) File,
Tab 1. The agency has filed a response in opposition to the petition for review,
PFR File, Tab 3, to which the appellant has replied, PFR File, Tab 4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 In his petition for review, the appellant argues that the Navy, and not DOD,
is responsible for decisions regarding the personnel matters of its employees
under 10 U.S.C. § 5013. PFR File, Tab 1 at 4. He continues to assert, therefore,
that the Secretary of Defense exceeded his authority in ordering the furlough
actions. Id. at 4-6; CAF, Tab 5 at 6-7 & n.3. We disagree. As the administrative
judge properly stated, although the Navy is separately organized under the
Secretary of the Navy, it operates under the express authority, direction, and
control of the Secretary of Defense. ID at 22; see 10 U.S.C. § 5011; see also Yee
v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014); Department of the
Navy Administrative Record for FY 2013 Furlough Appeals, available at
http://www.mspb.gov/furloughappeals/navy2013.htm (last visited February 24,
2015), Tab 12 at 105-107. Indeed, the statute identified by the appellant as
supporting his position, 10 U.S.C. § 5013, explicitly states that the Secretary of
4
the Navy’s responsibilities are “[s]ubject to the authority, direction, and control
of the Secretary of Defense.” 10 U.S.C. § 5013(b); PFR File, Tab 1 at 4. The
appellant, therefore, has set forth no basis to disturb the administrative judge’s
finding that the Secretary of Defense, as the head of DOD, clearly had the
authority to order the furlough actions at issue in this appeal. 3 ID at 22.
¶6 In his petition for review, the appellant also claims that the initial decision
is internally inconsistent concerning the administrative judge’s analysis of the
efficiency of the service standard. PFR File, Tab 1 at 6-9. In particular, he
claims that the administrative judge’s statement that the agency only needed to
establish, in general, that the furlough was a reasonable management solution to
the financial restrictions placed on it contradicted his statement that he had no
authority to examine the agency’s fiscal decisions regarding the furlough. Id. He
claims that, because the Navy plainly showed that it had no need to furlough its
employees, it was unnecessary for the administrative judge to “look behind” or
examine the agency’s decision to implement the furlough actions. Id. In making
this argument, the appellant appears to be challenging the administrative judge’s
finding that the furlough action promoted the efficiency of the service. Id. We
find this argument unavailing. Although the appellant claims that the Navy had
adequate funding to avoid furloughing its employees, the Board has found that it
was reasonable for DOD to consider its budget situation holistically, rather than
isolating each military department’s situation, in making its furlough decisions.
Yee, 121 M.S.P.R. 686, ¶ 14. Here, the administrative judge properly found that
the agency established that DOD faced a lack of funds and that the furlough
3
The appellant cites White v. Department of the Army, 115 M.S.P.R. 664, ¶ 7 (2011),
and Pervez v. Department of the Navy, 193 F.3d 1371, 1373-74 (Fed. Cir. 1999), to
support his position that the Secretary of Defense lacked the authority to furlough Navy
employees. PFR File, Tab 1 at 4-6. These cases, however, are not analogous to the
present appeal, as they concerned whether the military departments were separate from
DOD and each other for purposes of calculating probationary periods under the
applicab le Office of Personnel Management regulations. See White, 115 M.S.P.R. 664,
¶¶ 7-11; Pervez, 193 F.3d at 1373-74.
5
actions, including those of Navy employees, were a reasonable management
solution to the problem. ID at 21-22; see Yee, 121 M.S.P.R. 686, ¶ 14.
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
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 your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
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Merit Systems Protection Board appellants before the court. 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.