Gregory Lantz v. Department of the Army ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GREGORY C. LANTZ, DOCKET NUMBER
Appellant, PH-0752-13-1161-I-2
v.
DEPARTMENT OF THE ARMY, DATE: May 20, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Gregory C. Lantz, Marlborough, Massachusetts, pro se.
Kyle Hayden, New York, New York, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s action furloughing him for 6 days. Generally, we grant
petitions such as this one only in the following circumstances: the initial decision
contains erroneous findings of material fact; the initial de cision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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).
BACKGROUND
¶2 The appellant is an Information Technology Specialist with the U.S. Army
Corps of Engineers, Enterprise Information Technology. On June 3, 2013, he
received a Notice of Proposed Furlough explaining that an administrative
furlough was necessitated by 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 2, 201 3.”
Lantz v. Department of the Army, MSPB Docket No. PH-0752-13-1161-I-1, Initial
Appeal File (IAF), Tab 1 at 9-11. The appellant was further advised that the
furlough would be on discontinuous days, beginning on July 8, 2013 , through
approximately September 30, 2013, and that, as a full-time employee, he would
be furloughed no more than 11 workdays or 88 hours. Id. On June 28, 2013, the
agency issued a Notice of Decision to Furlough. 2 Id. at 12-13.
¶3 The appellant filed an appeal in which he stated that other employees within
his organization whose positions were designated as civil works funded were
2
In fact, the appellant was furloughed for only 6 days. Lantz v. Department of the
Army, MSPB Docket No. PH-0752-13-1161-I-2, Appeal File, Tab 7 at 41.
3
exempted from the furlough but that he was not because his position was
designated as military funded, and he suggested that this distinction should not
have been dispositive. Id. at 5. He also alleged that the agency committed
harmful procedural error in subjecting him to the furlough because his position
had been vacant from October 1, 2012, until he reported for duty on January 26,
2013, and that the “lack of salary expense” during that time actually saved the
agency money. Id. He declined a hearing before the Board. Id. at 2.
¶4 The assigned administrative judge subsequently dismissed the appeal
without prejudice pending the Board’s consideration on petition for review of
Corps of Engineers/Pacific Ocean v. Department of the Army , MSPB Docket
No. SF-0752-14-0290-I-1, an appeal that raised a similar issue; specifically,
whether the agency had a legitimate management reason for utilizing Unit
Identification Codes (UIC) in determining which positions would be exempt or
subject to the furlough. The administrative judge stated that the appellant’s
appeal would be automatically refiled once the Board issued an Opinion and
Order in Corps of Engineers/Pacific Ocean. IAF, Tab 6, Initial Decision.
¶5 After the appeal was reinstated for adjudication, 3 and following receipt of
submissions by the parties, a different administrative judge closed the record and
issued an initial decision affirming the agency’s action. Lantz v. Department of
the Army, MSPB Docket No. PH-0752-13-1161-I-2, Appeal File (I-2 AF), Tab 11,
Initial Decision (I-2 ID) at 1, 10. He found that the furlough actions were a
reasonable management solution to the significant financial restrictions faced by
3
The administrative judge explained that the then two sitting Board members had been
unable to agree on a disposition in the Corps of Engineers/Pacific Ocean case or
another case that raised a similar issue and that therefore the initial decisions in those
cases had become final; that the U.S. Court of Appeals for the Federal Circuit had
addressed the use of UICs in a consolidated appeal, Steffen v. Department of the Army,
640 F. App’x 938 (Fed. Cir. 2016), concluding, albeit in an unpublished opinion, that
UICs were a legitimate basis on which to distinguish among employees for the purpose
of furlough; but that the two-member Board could not agree on the application of
Steffen to Corps of Engineers/Pacific Ocean, and so had issued a split decision,
rendering the initial decision in that case final. IAF, Tab 8 at 1-3.
4
the agency due to sequestration, that employees with a military UIC were
potentially subject to furlough procedures in accordance with Corps of Engineers
policy, 4 and that therefore the agency proved that the appellant was furloughed
for a cause that promotes the efficiency of the service. I-2 ID at 5-7 (citing
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2014)). The
administrative judge further found that the agency’s use of UICs was an
appropriate neutral criterion in determining which positions were subject to
furlough, Steffen v. Department of the Army, 640 F. App’x 938, 941 (Fed. Cir.
2016), 5 and that the agency imposed the furlough in a full and even manner by
treating similar employees similarly and justifying any deviations with legitimate
management reasons. I-2 ID at 7-8 (citing Chandler, 120 M.S.P.R. 163, ¶ 8).
Finally, the administrative judge considered the errors alleged by the appellant to
have occurred during the processing of the furlough action but found that they
were either not errors at all or, if they were, they were not shown to be harmful.
I-2 ID at 8-9.
¶6 The appellant has filed a petition for review, Petition for Review (PFR)
File, Tab 1, to which the agency has responded in opposition, PFR File, Tab 3.
ANALYSIS
¶7 On review, the appellant argues that the administrative judge failed to
properly consider that the agency did not treat similar employees similarly in his
case because his position was vacant for a period of time and therefore not
occupied the entire time during FY13, unlike most other furloughed employees.
PFR File, Tab 1 at 4-5. While the question of which employees are similarly
4
The agency’s reasoning was that there was sufficient civil works funding to avoid
furlough for Corps of Engineers civil works employees because they were not part of
the DOD-Military appropriations. I-2 AF, Tab 7 at 28.
5
The administrative judge acknowledged that the Board may rely on unpublished
Federal Circuit decisions if the Board finds the court’s reasoning persuasive.
Mauldin v. U.S. Postal Service, 115 M.S.P.R. 513, ¶ 12 (2011).
5
situated for purposes of an adverse action furlough is decided on a case -by-case
basis, the Board has stated that it is guided by reduction-in-force (RIF) principles
in making that determination. 6 Chandler, 120 M.S.P.R. 163, ¶ 8. The appellant
has not shown, nor do we perceive, that his claim regarding his position having
been vacant for a period of time during FY13 is affected by any RIF principle.
See 5 C.F.R. part 351. In addition, he has not challenged the administrative
judge’s finding, based on evidence presented by the agency, that future savings
through furlough actions were deemed necessary to avoid adverse impacts on
military readiness, regardless of past savings. I-2 ID at 8; I-2 AF, Tab 7 at 17;
Department of the Army’s Administrative Record at 49, 50-59. We find,
therefore, that the appellant has not, by this claim, established that the agency did
not treat similar employees similarly.
¶8 The appellant next states on review that his appeal remained a “standalone,”
and he questions why the Board did not consolidate his case with the appeals of
others in his organization and in his geographical location who also were
furloughed. PFR File, Tab 1 at 4. The Board’s regulations provide that an
administrative judge may consolidate cases on his own motion or on the motion
of a party when doing so would expedite processing of the cases and not
adversely affect the interests of the parties. 5 C.F.R. § 1201.36(b). The appellant
has not suggested that he requested consolidation below. Nor has he shown any
prejudice to his substantive rights in the administrative judge’s failure to
consolidate the appellant’s case with others, and therefore he has not shown any
abuse of discretion. See Lee v. Environmental Protection Agency, 115 M.S.P.R.
533, ¶ 7 (2010) (finding no reversible error in the administrative judge’s
prehearing rulings because the appellant did not show that the administrative
6
A furlough of 30 days or more is appealable to the Board as a RIF action. 5 C.F.R.
§ 351.901. Due to the basic similarities between RIF and adverse action furloughs, the
Board has found that RIF principles are instructive in determining the scope of its
review of adverse action furloughs. Chandler, 120 M.S.P.R. 163, ¶ 7.
6
judge committed an abuse of discretion or a procedural error that prejudiced his
appeal).
¶9 The appellant also asserts on review that, when he was offered a positio n in
December 2012, the agency knew that there was a significant probability of
furloughs during FY13, and that therefore it should have included a statement on
his job announcement indicating that the position may be subject to furlough.
PFR File, Tab 1 at 4-5, 12-15. The appellant did not raise this argument below.
The Board will not consider an argument raised for the first time in a petition for
review absent a showing that it is based on new and material evidence not
previously available despite the party’s due diligence. Banks v. Department of
the Air Force, 4 M.S.P.R. 268, 271 (1980). Absent such a showing by the
appellant, we have not considered this argument.
¶10 In addition, the appellant alleges on review that there were numerous delays
and procedural errors throughout the entire processing of his appeal. PFR File,
Tab 1 at 5-9. First, he argues, as he did below, that the agency filed its r esponse
to the administrative judge’s second order to respond 6 days late. Id. at 6. The
order to which the appellant refers was dated September 26, 2016, and it directed
the agency to respond within 15 days, or by October 11, 2016. I-2 AF, Tab 3. On
September 29, 2016, however, the case was reassigned to a new administrative
judge, I-2 AF, Tab 4, and, on October 6, 2016, he issued a close-of-record notice,
stating that the parties could file pleadings up until October 21, 2016, but that ,
consistent with the Board’s regulations, they would be permitted to respond to
submissions received just prior to the close of the record. I-2 AF, Tab 5. The
agency made its final submission on October 17, 2016. I-2 AF, Tab 7. Although
the appellant suggests that he did not have sufficient time to fully review the
agency’s response, PFR File, Tab 1 at 6-7, he did, in fact, respond to the agency’s
submission on October 18, 2016, I-2 AF, Tab 9. And while the appellant also
asserts that he did not have time “to initiate any engagement of discovery if
necessary,” PFR File, Tab 1 at 6-7, he has not alleged that he, at any time,
7
requested to engage in discovery. Therefore, we find that the appellant has not
established that any error occurred regarding this matter.
¶11 Finally, the appellant alleges on review that there were substantial delays in
the Board’s processing of his appeal. Id. at 7-8. While we acknowledge that
some case processing times were adversely affected as a result of the Board’s
unprecedented receipt of thousands of furlough appeals, the appellant has not
shown that any such delays prejudiced his substantive rights. See Lee,
115 M.S.P.R. 533, ¶ 7.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
7
Since the issuance of the initial decision in this matter, the Board may have update d
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
8
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
9
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
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Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no cha llenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 8 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
11
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.