Allison McDade v. Department of the Navy ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ALLISON MCDADE, 1 DOCKET NUMBER
Appellant, DC-0752-13-0981-I-1
v.
DEPARTMENT OF THE NAVY, DATE: June 23, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Allison McDade, Virginia Beach, Virginia, pro se.
Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.
Jacquelyn Wright, Esquire, Port Hueneme, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
Pursuant to 5 C.F.R. § 1201.36(a)(1), this appeal was part of two consolidations.
Naval Facilities Engineering Command, Mid-Atlantic (Norfolk) 1 v. Department of the
Navy, MSPB Docket No. DC-0752-14-0158-I-1; Naval Facilities Engineering
Command, Atlantic (Norfolk) v. Department of the Navy, MSPB Docket No. DC-0752-
14-0146-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 On May 30, 2013, the agency issued a Notice of Proposed Furlough
informing the appellant, an Attorney, that she would be furloughed for no more
than 11 workdays due to “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.”
Initial Appeal File (IAF), Tab 1 at 7-9. The appellant submitted a written reply to
the proposal notice. IAF, Tab 6 at 13-14. By written notice dated June 28, 2013,
the agency’s deciding official informed the appellant that she would be
furloughed as outlined in the proposal notice. IAF, Tab 1 at 10-12. The record
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includes evidence reflecting the appellant’s furlough on 6 discontinuous days
between July 8, 2013, and September 27, 2013. IAF, Tab 6 at 5-11.
¶3 The appellant filed a Board appeal challenging the agency’s action and she
requested a hearing. IAF, Tab 1 at 1-6. She alleged that the agency violated her
due process rights and committed harmful error and a prohibited personnel
practice. Id. at 5; IAF, Tab 8 at 5-6. In a furlough procedures order, the
administrative judge informed the appellant that her appeal had been consolidated
with the appeals of similarly situated employees. Naval Facilities Engineering
Command, Atlantic (Norfolk) v. Department of the Navy, MSPB Docket No.
DC-0752-14-0146-I-1, Consolidated Appeal File (0146-I-1 CAF), Tab 1. The
administrative judge realigned her appeal with a different group of similar
furlough appeals. See 0146-I-1 CAF, Tab 6.
¶4 After holding a hearing, the administrative judge issued an initial decision
affirming the furlough action. Naval Facilities Engineering Command,
Mid-Atlantic (Norfolk) 1 v. Department of the Navy, MSPB Docket No. DC-0752-
14-0158-I-1, Consolidated Appeal File (0158-I-1 CAF), Tab 13, Initial Decision
(ID) at 2, 17. He found that the agency’s furlough was a reasonable management
solution to the shortage of funds caused by sequestration and that the agency
implemented the furlough in a fair and even manner. ID at 4-9, 17. He also
found that the appellant did not prove a violation of due process or her other
affirmative defenses. ID at 9-17.
¶5 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition. PFR File, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
The administrative judge properly found that the agency established that the
appellant was furloughed for cause that promotes the efficiency of the service.
¶6 In her petition for review, the appellant argues that the agency did not
establish a credible reason for the furlough because “the Command (NAVFAC
Midlant) and the Department of the Navy both operated at a surplus at the end of
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the fiscal year.” PFR File, Tab 1 at 5. She contends that, “[c]learly, funds were
available to pay appellant’s salary.” Id. She further asserts that the furlough
action was “fundamentally arbitrary.” Id.¶7 A furlough is the placing of an employee in a temporary status without
duties and pay because of a lack of work or funds or other nondisciplinary
reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or
less, as here, are reviewable under the “efficiency of the service” standard found
in 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.
163, ¶ 5 (2013). An agency satisfies the efficiency of the service standard in a
furlough appeal 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. Id., ¶ 8.
¶8 The administrative judge considered the appellant’s arguments, but found
that the agency established its cited reason for the furlough, a shortage of funds
for the Department of Defense (DOD), by a preponderance of the evidence. ID
at 4, 6. The appellant does not provide evidence to dispute the agency’s position
that the DOD faced a budgetary deficit because of sequestration. As noted by the
administrative judge, it is not unreasonable for the DOD to consider its budget
circumstances holistically rather than isolating individual military departments or
their subcomponents. ID at 6; see Yee v. Department of the Navy, 121 M.S.P.R.
686, ¶ 14 (2014). Thus, the administrative judge properly found that, despite the
relatively sound fiscal situation of the Department of the Navy (Navy), the
DOD’s budget deficit established a valid reason for the furlough. See ID at 5-6.
To the extent the appellant argues that the agency should have allocated any
surplus funds towards avoiding the furlough, the Board has held that its efficiency
of the service determination does not encompass agency spending decisions per
se, including spending on personnel matters. Gajdos v. Department of the
Army, 121 M.S.P.R. 361, ¶ 11 (2014). Such matters belong to the judgment of
5
agency managers, who are in the best position to decide what allocation of
funding will best allow the agency to accomplish its mission. Id.¶9 The administrative judge also considered the appellant’s argument that her
position had adequate funding because it was paid from working capital funds,
but did not find it persuasive. ID at 11-12; see IAF, Tab 8 at 6-7. The Board has
held that, even if an appellant’s working capital fund were exempt from a
sequestration order, the Board would still need to consider whether the furlough
was a reasonable management solution to the financial restrictions placed upon
the agency. Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 13-15
(2015). The appellant has not persuaded us that the administrative judge erred in
his assessment of the financial restrictions placed on the agency or in his
conclusions that the furlough was a reasonable management solution to these
restrictions and that the furlough was applied in a fair and even manner. Thus,
we find that the administrative judge properly affirmed the agency’s furlough
action.
The administrative judge properly found that the appellant failed to establish a
due process violation.
¶10 In contesting the administrative judge’s determination that the agency did
not violate the appellant’s right to due process, the appellant argues that the
“Deciding Official lacked independent authority and did not furnish Appellant
with all reasonably and timely requested information.” PFR File, Tab 1 at 4. She
elaborates that the deciding official was not objective because “the Secretary of
Defense directed furloughs.” Id. She further claims that the deciding official
“never responded to her specific questions,” which “indicates his lack of
consideration AND also deprived Appellant of a meaningful examination of the
complete record upon which the decision was based.” Id.¶11 Here, 5 U.S.C. §§ 7512(5) and 7513(a) create a legitimate claim of
entitlement to retention in a pay status, and thus a property interest, that
conditions placement of an employee in a temporary status without duties and pay
6
on such cause as will promote the efficiency of the service.
Gajdos, 121 M.S.P.R. 361, ¶¶ 13-14. Having found that the appellant has a
property interest at stake in this case, the question remains as to what process is
due, and whether the procedure that the agency applied satisfied the mandates of
due process. Id., ¶ 14.
¶12 Due process is a flexible concept that calls for such procedural protections
as the particular situation demands. See, e.g., Gilbert v. Homar, 520 U.S. 924,
930-32 (1997); Buelna v. Department of Homeland Security, 121 M.S.P.R. 262,
¶¶ 16, 19 (2014); Gajdos, 121 M.S.P.R. 361, ¶ 18. In this case, the agency
provided the appellant with 7 days to respond orally and/or in writing to the
deciding official before deciding her furlough, and the record shows that this was
a meaningful and adequate opportunity to respond. IAF, Tab 1 at 8. Thus, it is
clear that the agency afforded the appellant predeprivation notice and a
meaningful opportunity to respond, which is clearly sufficient. See
Gajdos, 121 M.S.P.R. 361, ¶¶ 14, 18; see also Cleveland Board of Education v.
Loudermill, 470 U.S. 532, 546 (1985); Ronso v. Department of the
Navy, 122 M.S.P.R. 391, ¶ 13 (2015).
¶13 The administrative judge considered the appellant’s claims and found that
the deciding official possessed the independent authority to consider the
appellant’s request for exemption and change the outcome of the furlough. ID
at 10. He further found that due process does not require that the deciding
official address in the decision letter each of the appellant’s concerns raised in
her reply to the proposed notice. ID at 15. The appellant does not provide
evidence or argument to dispute the administrative judge’s findings.
Accordingly, the agency afforded the appellant minimum due process. See
Gajdos, 121 M.S.P.R. 361, ¶¶ 17-25.
7
The administrative judge properly found that the appellant failed to establish
harmful procedural error.
¶14 Although we find no due process violation, we still must determine whether
the agency committed a harmful procedural error. See Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that,
in addition to the right to due process, “[p]ublic employees are . . . entitled to
whatever other procedural protections are afforded them by statute, regulation, or
agency procedure”); see also Pumphrey v. Department of Defense, 122 M.S.P.R.
186, ¶ 9 (2015). Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an
agency’s decision if the appellant “shows harmful error in the application of the
agency’s procedures in arriving at such decision.” An appellant bears the burden
of proving, by preponderant evidence, that the agency committed harmful error in
reaching its decision. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R.
§ 1201.56(b)(2)(i)(C). A harmful error is an error by the agency in the
application of its procedures that is likely to have caused the agency to reach a
conclusion different from the one it would have reached in the absence or cure of
the error. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R. § 1201.4(r).
¶15 In her reply to the proposal notice, the appellant objected to the notice’s
“vague discussion of other, similarly situated employees” and requested further
information on other DOD civilian attorneys in order to determine whether her
treatment was “fair and/or in accordance with merit systems principles.” IAF,
Tab 6 at 13-14. The agency complied with the Office of Personnel Management’s
required procedures for a notice of proposed action by providing the appellant
with access to review supporting materials and time off to prepare a reply to the
proposal notice. See IAF, Tab 1 at 7-9; see also 5 C.F.R. § 752.404(b). The
proposal notice also explained the reasons for selecting the appellant for furlough.
IAF, Tab 1 at 7; see 5 C.F.R. § 752.404(b)(2). The administrative judge relied on
the deciding official’s testimony and the record in finding that any error the
agency made by allegedly not providing the requested information to the
8
appellant was harmless because the deciding official concluded that there were no
similarly situated employees. ID at 14. The appellant has not identified a
procedure the agency has violated or provided evidence or argument to contest
the administrative judge’s finding. Her statement that she was harmed by lost
wages and leave does not amount to harmful procedural error. See PFR File,
Tab 1 at 4-5; see also 5 C.F.R. § 1201.4(r).
¶16 Further, the fact that the decision notice may not have addressed all of the
appellant’s specific arguments in her reply does not mean that they were not
considered or that the agency committed harmful procedural error. See, e.g., Salo
v. Department of Defense, 122 M.S.P.R. 417, ¶ 9 (2015) (noting that the appellant
did not identify any regulatory, statutory, or judicially imposed requirement that
the agency must specifically address all arguments raised in a response to a
proposal notice, and concluding that the appellant did not show that any alleged
error likely caused the agency to reach a conclusion different from the one it
would have reached in the absence or cure of the error). The administrative
judge’s finding that the deciding official’s declaration and hearing testimony
established his consideration of the appellant’s reply is supported by the record.
ID at 10; see 0158-I-1 CAF, Tab 11 at 7 (declaration), Tab 12, Hearing Compact
Diskette (20:02-20:52).
¶17 The administrative judge also considered the appellant’s argument that the
agency violated its own policies by not assigning attorneys within her supervisory
chain as her proposing and deciding officials. ID at 12-14. The administrative
judge found that the General Counsel of the Navy’s memorandum validly
delegated authority to individuals to serve as deciding officials for the office’s
attorneys. ID at 13; see 0158-I-1 CAF, Tab 9 at 9-10. He further found that,
although the proposal notice predated the memorandum, such error was harmless
because the appellant did not prove that it was likely that the outcome would have
been different with a proposing official consistent with the policies. ID at 13-14.
9
¶18 The appellant has not provided a reason to disturb the administrative
judge’s finding that the General Counsel’s memorandum properly delegated
furlough authority to the deciding official. Even assuming that the agency
violated its policies by appointing a proposing official outside of the appellant’s
supervisory chain, she did not establish that the agency’s error was likely to have
caused the agency to reach a conclusion different from the one it would have
reached in the absence or cure of the error. See Pumphrey, 122 M.S.P.R. 186,
¶ 10; see also 5 C.F.R. § 1201.4(r). Specifically, she did not prove that the same
deciding official was likely to have reached a different decision on the proposed
furlough action had the agency appointed a proposing official consistent with its
policies, or that it was likely that such a proposing official would not have
proposed the appellant’s furlough. Cf. Goeke and Bottini v. Department of
Justice, 122 M.S.P.R. 69, ¶¶ 14-23 (2015) (finding that the agency’s belated
substitution of a proposing official from management, rather than from the
members of the rank-and-file attorneys, violated its own internal disciplinary
process and rules and constituted harmful procedural error). Accordingly, we
agree with the administrative judge’s finding that the appellant failed to prove her
harmful error claim.
The administrative judge properly found that the appellant failed to establish that
the agency committed a prohibited personnel practice by violating merit system
principles 5 and 8.
¶19 The appellant argues that the agency’s furlough action cannot be sustained
because it violates merit system principles. PFR File, Tab 1 at 4-5. She argued
below that the furlough action violated the merit system principles codified
at 5 U.S.C. § 2301(b)(5) and (b)(8)(A), and thus cannot be sustained
under 5 U.S.C. § 2302(b)(12). IAF, Tab 1 at 5, Tab 8 at 5-6. The administrative
judge considered the appellant’s arguments and found that she failed to prove that
the agency committed a prohibited personnel practice. ID at 15-17. The
appellant does not provide any evidence or argument on review to contest the
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administrative judge’s finding. Based on our review of the record, we discern no
reason to disturb the administrative judge’s well-reasoned finding. See Crosby v.
U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no reason to disturb
the administrative judge’s findings when she considered the evidence as a whole,
drew appropriate references, and made reasoned conclusions).
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.
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If you are interested in securing pro bono representation for an appeal to the
United States 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.