Victoria Calhoun v. Department of the Army ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
VICTORIA CALHOUN, 1 DOCKET NUMBER
Appellant, PH-0752-13-5389-I-1
v.
DEPARTMENT OF THE ARMY, DATE: April 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Ruth Ann Azeredo, Esquire, Annapolis, Maryland, for the appellant.
Laurie Ann Kwiedorowicz, Esquire, Fort Meade, Maryland, 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 her furlough from employment due to sequestration. Generally, we
grant petitions such as this one only when: the initial decision contains erroneous
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Army
Cyber Command v. Department of the Army, MSPB Docket No. PH-0752-14-0801-I-1.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 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 agency furloughed the appellant from her position as a Doctrine
Development Analyst for 6 days following the President’s March 1, 2013
sequester order. Initial Appeal File (IAF), Tab 5 at 24. The appellant timely
filed an appeal of her furlough, and, after withdrawing her request for a hearing,
the administrative judge issued an initial decision sustaining the furlough action.
IAF, Tab 25, Initial Decision (ID). In his initial decision, the administrative
judge found that the agency established that its action promoted the efficiency of
the service and that the appellant failed to establish that the agency committed
either a due process violation or harmful procedural error in effecting the
furlough. ID at 5-11. Specifically, the administrative judge rejected the
appellant’s arguments that the agency improperly delegated the deciding
official’s responsibilities to the agency official who imposed the appellant’s
furlough. ID at 8-11.
¶3 The appellant has filed a petition for review primarily challenging the
administrative judge’s due process and harmful error analysis. Petition for
Review (PFR) File, Tab 1 at 10-17. On review, the appellant renews her
3
argument that the agency erred in delegating the responsibilities of the deciding
official to an individual other than the local installation commander who oversaw
the appellant’s work unit. Id. at 12-13. She further argues that, even if the
agency could delegate the deciding official’s responsibilities, the individual who
served as the deciding official was not qualified to serve in that role. Id.
at 14-16. The appellant also asserts that the deciding official erred in utilizing an
oral reply official to hear her response to the proposed furlough and that he did
not receive a summary of her oral reply prior to issuing the decision letter. Id. at
20-24. The agency has filed a response in opposition arguing that it properly
delegated the deciding official’s responsibilities pursuant to the Secretary of
Defense’s May 2013 guidance on implementing furloughs and that the deciding
official considered the appellant’s written response prior to issuing a letter of
decision, and thus did not commit a due process violation. PFR File, Tab 3
at 6-10, 12.
¶4 An agency meets its burden of proving 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. In re 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. 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
4
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).
¶5 We concur with the administrative judge that the agency established its
need to furlough the appellant due to sequestration. ID at 4-5. The
administrative judge found it undisputed that the agency suffered a budget
shortfall following sequestration, and he rejected the appellant’s arguments that
her furlough could have been avoided if the agency adopted some of her
proposals to save and reallocate money. ID at 5. We agree with the
administrative judge that the appellant’s budget proposals focus on the agency’s
individual spending decisions and are beyond the scope of the Board’s review in a
furlough appeal. See Einboden v. Department of the Navy, 802 F.3d 1321, 1325
(Fed. Cir. 2015). The appellant has not specifically challenged the remainder of
the administrative judge’s initial decision sustaining the furlough, and we find no
reason to differ with his well-reasoned findings in this regard. See Ronso v.
Department of the Navy, 122 M.S.P.R. 391, ¶ 5 (2015) (declining to revisit the
administrative judge’s initial decision sustaining a furlough absent specific
arguments concerning the legitimacy of the action).
¶6 We similarly agree with the administrative judge that the appellant did not
establish that the agency committed either a due process violation or a harmful
procedural error in effecting the appellant’s furlough. Due process is a flexible
concept that calls for such procedural protections as the particular situation
demands. See Rodgers v. Department of the Navy, 122 M.S.P.R. 559, ¶ 6 (2015);
Gajdos, 121 M.S.P.R. 361, ¶ 18. In circumstances similar to the present appeal,
the Board has found that the dictates of due process are satisfied where the
employee receives advanced notice of the proposed furlough and an opportunity
to respond. See Rodgers, 122 M.S.P.R. 559, ¶ 6. Here, the appellant received
such notice and had an opportunity both to present an oral reply and to submit a
5
written response. 3 IAF, Tab 5 at 19-20; Tab 24. The deciding official, moreover,
averred that he had the authority to determine whether the appellant should be
furloughed, or whether she met one of the criteria for an exemption. E.g., IAF,
Tab 22 at 26-27. We agree with the administrative judge that the process
employed by the agency is consistent with these basic tenets of due process. 4 See
Rodgers, 122 M.S.P.R. 559, ¶¶ 7-9; Ronso, 122 M.S.P.R. 391, ¶ 13.
¶7 The appellant’s assertions of harmful procedural error also are unavailing.
The Secretary of Defense issued a memorandum in May 2013 outlining the
parameters to be used in selecting deciding officials for adjudicating the proposed
furloughs. See Department of the Army Administrative Record for FY2013
Furlough Appeals (Master Administrative Record), Tab 7, available
at http://www.mspb.gov/furloughappeals/army2013.htm. This guidance provided
in relevant part that the “designated Deciding Official will be no lower than a
local Installation Commander, senior civilian or equivalent who would be in the
best position to determine the fair and equitable application of the furlough.
Deciding Official responsibilities may not be further delegated.” Id. Pursuant to
this instruction, Lieutenant General R.H. was identified as the deciding official
for the appellant’s work unit. See Army Cyber Command v. Department of the
Army, MSPB Docket No. PH-0752-14-0801-I-1, Consolidation Appeal File, Tab 5
at 113. Lieutenant General R.H. in turn delegated Colonel S.S. to serve as the
deciding official, and Colonel S.S. issued the decision letter imposing the
appellant’s furlough. Id. at 62-64, 113.
3
The appellant’s arguments that her oral reply was not considered and that the deciding
official should not have utilized a separate oral reply official are discussed infra ¶ 10.
4
The appellant also contends on review that the furlough action does not comport with
due process because the deciding official improperly was delegated the responsibility to
serve in this role. PFR File, Tab 1 at 16-18. To the extent the appellant is alleging that
she was denied a meaningful opportunity to respond based on this delegation of
authority, the deciding official possessed sufficient decision-making authority in the
context of the furlough to satisfy the appellant’s right to due process. See Rodgers,
122 M.S.P.R. 559, ¶ 7.
6
¶8 The appellant argues that the delegation of authority from Lieutenant
General R.H. to Colonel S.S. was improper because the Defense Secretary’s
memorandum specified that deciding official “responsibilities may not be further
delegated,” and she contends that Lieutenant General R.H. should have served as
the deciding official. PFR File, Tab 1 at 12-13. We agree with the administrative
judge, however, that the Defense Secretary’s memorandum does not limit the
number of delegations that can be made, but rather imposes only the level of
agency official below which such responsibilities cannot be delegated. ID at 10;
Master Administrative Record, Tab 7. We thus agree with the administrative
judge that the provision highlighted by the appellant is intended to set the
minimum qualifications for the agency officials who can serve as a deciding
official. Although this provision, read in isolation, could be construed to limit
any additional delegation of authority beyond that made to Lieutenant General
R.H., such provisions generally must be read holistically, rather than in isolation.
See, e.g., Garza v. Office of Personnel Management, 83 M.S.P.R. 336, ¶ 5 (1999),
aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). Reading the delegation of authority
provision in its entirety, we find that the limitation identified by the appellant did
not preclude Lieutenant General R.H. from delegating the deciding official’s
responsibilities to Colonel S.S.
¶9 We further find no evidence in the record supporting the appellant’s
alternative argument that Colonel S.S. fell below the level of employee identified
in the Defense Secretary’s memorandum as being qualified to serve as a deciding
official. PFR File, Tab 1 at 14-15. Rather, guidance issued by the Secretary of
the Army explained that a colonel could serve as a deciding official, see Master
Administrative Record, Tab 9, and the appellant has presented no supporting
evidence that the colonel was not a “senior civilian or equivalent who would be in
the best position to determine the fair and equitable implementation of the
furlough.” Although the appellant argues on review that the colonel was not an
individual who exercised command under the Army Command Policy, see PFR
7
File, Tab 1 at 15, the Defense Secretary’s memorandum contains no such
requirement that the deciding official exercise a degree of command, and we
decline to read such a limitation into the memorandum. See Master
Administrative Record, Tab 7. We thus find no merit to the appellant’s argument
that the agency committed harmful procedural error by delegating Colonel S.S. as
the deciding official. 5
¶10 Finally, we discern no harmful error with the deciding official’s use of a
delegated oral reply official or the circumstances surrounding his consideration of
the appellant’s oral response. In Ronso, 122 M.S.P.R. 391, ¶¶ 12-16, the Board
found the use of a designated oral reply official consistent with agency policy,
and we similarly find that the agency’s guidance envisioned the use of an oral
reply official in this case. See Master Administrative Record, Tab 9.
Additionally, although the deciding official acknowledged that he did not receive
a summary of the appellant’s oral reply until after he issued a decision on the
proposed furlough, the deciding official averred that he received and considered
the appellant’s written response prior to issuing his decision letter, which was
substantially similar to her oral reply, and that it presented no new information
that would have influenced his decision. IAF, Tab 5 at 19-20, Tab 22 at 27. In
light of the deciding official’s declaration that the oral reply summary would not
have altered his decision to furlough the appellant, we cannot find that his delay
in considering the oral reply summary amounted to harmful error. 6
5
Alternatively, even if the delegation of authority to Colonel S.S. to serve as the
deciding official was contrary to the Defense Secretary’s memorandum, the appellant
has presented no evidence that the agency would have reached a different result had a
different individual served as the deciding official. See Canary v. U.S. Postal Service,
119 M.S.P.R. 310, ¶ 12 (2013) (explaining that harmful error cannot be presumed).
6
We find these facts distinguishable from Massey v. Department of the Army,
120 M.S.P.R. 226, ¶ 5 (2013), where the deciding official issued a decision letter
without considering any reply from the appellant. Unlike that case, where the Board
found the agency denied the appellant due process based on the deciding official’s
failure to consider “any response,” here, the deciding official considered the appellant’s
written response prior to issuing his decision letter. IAF, Tab 22 at 27. We cannot find
8
¶11 Based on the foregoing, the appellant’s petition for review is denied, and
the administrative judge’s initial decision sustaining the furlough action is
affirmed.
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 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.
that the appellant has been denied a meaningful opportunity to be heard under the facts
of this case. See Massey, 120 M.S.P.R. 226, ¶¶ 8, 10.
9
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.