DLA MARITIME v. Department of Defense ( 2016 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
DLA MARITIME, DOCKET NUMBER
Appellants, NY-0752-14-0286-I-1
v.
DEPARTMENT OF DEFENSE,
Agency. DATE: November 3, 2016
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Michael Robert Schesser, New Market, New Hampshire, pro se.
Robert N. Williams, Kittery, Maine, pro se.
Adam J. Heer, Esquire, and C. Michael Meehan, Esquire, Columbus, Ohio,
for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellants have filed petitions 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;
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 petitioners have not
established any basis under section 1201.115 for granting the petitions for review.
Therefore, we DENY the petitions for review and AFFIRM the initial decision,
which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellants are employees of the agency’s Defense Logistics Agency
(DLA), Maritime, in Portsmouth, New Hampshire. 2 Williams v. Department of
Defense, MSPB Docket No. PH-0752-13-5209-I-1, Initial Appeal File (Williams
IAF), Tab 1 at 13; Schesser v. Department of Defense, MSPB Docket No.
PH-0752-13-1383-I-1, Initial Appeal File (Schesser IAF), Tab 1 at 8. 3 They were
notified in May 2013, that the agency intended to impose a furlough of up to
11 workdays or 88 hours because of the “extraordinary and serious budgetary
challenges facing the Department of Defense (DOD) for the remainder of Fiscal
Year (FY) 2013.” Consolidation Appeal File (CAF), Tab 6 at 20. The furlough
2
This appeal consolidates individual appeals pursuant to 5 C.F.R. § 1201.36(a). Only
two of the original six appellants filed petitions for review, Robert N. Williams, MSPB
Docket No. PH-0752-13-5209-I-1, and Michael Robert Schesser, MSPB Docket
No. PH-0752-13-1383-I-1. Our findings herein apply only to these two appellants and
not to the other appellants who were part of the consolidated group but did not file
petitions for review. See Dye v. Department of the Army, 121 M.S.P.R. 142, ¶ 1
n.2 (2014).
3
We have cited to both the Consolidation Appeal File, which comprises documents
submitted under MSPB Docket No. NY-0752-14-0286-I-1, and the Initial Appeal Files
and Petition for Review Files of individual appellants, which are distinguished by
their surnames.
3
resulted from the sequestration requiring across-the-board reductions in Federal
spending pursuant to the Balanced Budget and Emergency Deficit Control Act
(BBEDCA), as amended, as well as the misallocation of funds while DOD was
operating under a continuing resolution and incurring unexpectedly high wartime
costs. Complete Defense Logistics Agency Administrative Record for FY 2013
Furlough Appeals (CAR) at 5. 4
¶3 In June 2013, the agency notified the appellants that they would be on a
discontinuous furlough between July 8, 2013 and September 30, 2013.
Schesser IAF, Tab 6 at 14-17; Williams IAF, Tab 4 at 14-17. The agency
subsequently reduced the number of furlough days to 6 days, which the appellants
served. Schesser IAF, Tab 6 at 4-12; Williams IAF, Tab 4 at 4-12. The instant
appeal consolidated the appeals from six agency employees. CAF, Tab 1.
¶4 The administrative judge found that the agency proved by preponderant
evidence the factual basis for the furlough and that the furlough promoted the
efficiency of the service. CAF, Tab 10, Initial Decision (ID) at 5-9. The
administrative judge further found the appellants failed to meet their burdens of
proof regarding several issues certain appellants raised in challenging the agency
action. ID at 9-16. Among other things, the appellants asserted that: the DLA
had sufficient funds to avoid a furlough, but its parent agency, DOD, imposed an
across-the-board approach that unnecessarily included subordinate agencies; the
DLA should have been exempt from the furlough because some functions it
supported were exempt, including the Portsmouth Naval Shipyard; and the DLA
wasted funds by scheduling overtime both in anticipation of and during the
furlough. ID at 9-16. The appellants additionally argued that they should have
been able to choose their own furlough days, and that the DLA failed to provide
materials showing that the furlough was necessary, how it calculated the proposed
4
The CAR is a group of documents pertaining to all DLA appeals for the 2013
sequestration furlough. The CAR may be found on the Board’s website at
http://www.mspb.gov/furloughappeals/dla2013.htm.
4
number of furlough days, and evidence supporting the specific number of
furlough days. ID at 10-13. The administrative judge found the appellants raised
issues that were beyond the scope of the Board’s jurisdiction, or that their
concerns had been properly addressed by the agency. ID at 9-16. The
administrative judge thus affirmed the furlough action. ID at 16. Two appellants,
Robert N. Williams and Michael Robert Schesser, filed petitions for review.
Appellant Williams
¶5 Appellant Williams reiterates his argument that he did not receive evidence
that a furlough was necessary, showing the DLA’s basis for the proposed number
of furlough days, or its bases for selecting the specific days upon which he served
furlough time. Williams v. Department of Defense, MSPB Docket No. PH-0752-
13-5209-I-1, Petition for Review (Williams PFR) File, Tab 1 at 4; Williams IAF,
Tab 1 at 6. He additionally asserts that he was not allowed to choose his
furlough days. Williams PFR File, Tab 1 at 4-5; Williams IAF, Tab 1 at 5. He
explains that he had scheduled a vacation for early September 2013, and should
have been able to serve his furlough days during that time. Williams PFR File,
Tab 1 at 4-5; Williams IAF, Tab 1 at 5. He asserts that his request to choose his
own furlough days went unanswered, and further, that the administrative judge
did not address this issue to his satisfaction in the initial decision. Williams PFR
File, Tab 1 at 5. In support of his argument, he cites AFGE, Local 32 & Office of
Personnel Management, 22 F.L.R.A. 307 (1986), aff’d sub nom. Office of
Personnel Management v. Federal Labor Relations Authority, 829 F.2d 191 (D.C.
Cir. 1987) (Table). Id.¶6 We disagree. The administrative judge properly addressed all of these
issues in the initial decision. Appellant Williams either received the information
he asserts that the DLA did not provide, or he failed to show that the DLA denied
him access to the information when he requested it. Because the furlough action
was taken pursuant to the adverse action procedures set forth in chapter 75, he
received notice of the proposed furlough action and an opportunity to reply before
5
the DLA issued a final decision. Williams IAF, Tab 4 at 18-22. The proposal
notice set forth the agency’s reasons as to why the furlough was necessary. Id.
at 20; see 5 U.S.C. § 7513(b)(1) (“An employee against whom an action is
proposed is entitled to . . . at least 30 days’ advance written notice . . . stating the
specific reasons for the proposed action.”). The proposal notice also informed
him of his right to review the materials upon which the agency relied in taking the
furlough action. Williams IAF, Tab 4 at 21; see 5 C.F.R. § 752.404(b)(1).
Appellant Williams has not asserted that the DLA denied any request on his part
to examine these materials. Instead, he argues, the information to which he was
provided access was unresponsive because it failed to show why it was necessary
to furlough him, or to show how the DLA calculated the number of furlough days
he would serve. Williams PFR File, Tab 1 at 5.
¶7 The agency’s burden of proof, however, was to show that the furlough was
a reasonable management solution to the financial restrictions placed on it and
that it selected the employees to be furloughed in a fair and even manner.
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Review
of the proposal and decision notices shows that Appellant Williams received such
information in support of the DLA’s decision to furlough him. In the decision
notice, for example, the deciding official specifically addressed any concerns as
to whether the furlough was justified, citing a May 14, 2013 memorandum from
the Secretary of Defense discussing the budgetary shortfalls leading to the
agency’s decision. Williams IAF, Tab 4 at 14, 19; CAR, Tab 7. Additionally, the
deciding official cited BBEDCA and The American Taxpayer Relief Act of 2012,
which was enacted in January 2013, establishing the sequestration
process. Williams IAF, Tab 4 at 14. The proposal notice directed the appellant
to various sources of information regarding the furlough, including a special DLA
furlough website containing materials from the CAR. Id. at 21. Appellant
Williams has not shown why he might be entitled to information beyond that with
which he was provided or could have readily accessed. As for the agency’s
6
calculation of the number of furlough days that employees would be required to
serve, various documents in the CAR address its considerations. See, e.g., CAR
at 92.
¶8 Even if the agency-provided information had been insufficient, Appellant
Williams would have had to show harmful error for the Board to disturb the
initial decision. Harmful error cannot be presumed; instead, an appellant must
show that the agency’s error is likely to have caused it to reach a conclusion
different from the one it would have reached in the absence or cure of the error.
Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); see,
e.g., Gilmore v. U.S. Postal Service, 103 M.S.P.R. 290, ¶¶ 6-16 (2006), aff’d,
262 F. App’x 276 (Fed. Cir. 2008). Appellant Williams failed to show that the
agency would have reached a different decision had it provided the information
he believes he was denied.
¶9 Regarding the selection of the specific days upon which Appellant Williams
served the furlough, the agency’s decisions on this are beyond the scope of our
review. The Board’s efficiency of the service determination does not extend to
“an agency’s decision to allocate furlough days in a certain manner among
employees who are not similarly situated.” Chandler, 120 M.S.P.R. 163, ¶ 9.
Such matters are instead left to the judgment of agency managers, who are in the
best position to allocate funding in a manner that will best allow the agency to
accomplish its mission. Id. As a general matter, the Board will not review an
agency’s decisions regarding scheduling a furlough, including whether employees
will be allowed to choose their own furlough days. Id., ¶ 20.
¶10 Appellant Williams has not alleged that he was treated differently from
other similarly situated employees. As for his assertion that the initial decision
was inconsistent with AFGE, Local 32 & Office of Personnel Management, the
Federal Labor Relations Authority (FLRA) found it within an agency’s duty to
bargain over a union proposal that would allow bargaining unit members to serve
their furlough days contiguously. AFGE, 22 F.L.R.A. at 312-13. The FLRA
7
explained, however, that it was “mak[ing] no judgment as to the merits” of the
union’s proposal. Id. at 313 n.9. We also note that, prior to the commencement
of the furlough here, the agency and Appellant Williams’ bargaining unit entered
into a memorandum of agreement (MOA) setting forth the procedures the agency
would follow in administering the furlough. CAR at 191-93. The MOA
expressly states that furlough days were to be “discontinuous and will be either
the first or last day of the work week.” CAR at 191. The appellant’s argument is
thus unavailing.
Appellant Schesser
¶11 Appellant Michael Robert Schesser reasserts his argument from below that
the agency’s use of overtime to manage its workload before and during the
furlough was flawed. 5 Schesser v. Department of Defense, MSPB Docket No.
PH-0752-13-1383-I-1, Petition for Review (Schesser PFR) File, Tab 1 at 3;
Schesser IAF, Tab 1 at 6. The agency’s use of overtime before the furlough
period, however, is beyond the scope of this appeal. As for an agency’s use of
overtime during the furlough, the Board may consider a claim that an agency
failed to apply the furlough uniformly and consistently if an appellant makes a
showing the agency used overtime payments to relieve some employees but not
others of the financial consequences of the furlough. Chandler, 120 M.S.P.R.
163, ¶¶ 12-14, 20. Appellant Schesser has not asserted that scheduling overtime
hours was used to relieve him or any other person of the financial consequences
of the furlough. He instead is challenging the DLA’s stated justification for the
furlough, arguing that the DLA had the resources available to avoid a furlough
because it had the resources to pay overtime. See, e.g., Schesser PFR File, Tab 1
at 3. The Board, however, considers the agency’s use of overtime so as to meet
mission requirements to be a nonreviewable discretionary spending decision.
5
The record shows that Appellant Schesser questioned the agency’s practices as to
scheduled overtime well before the furlough began. Schesser IAF, Tab 3 at 5, 7-8.
8
Chandler, 120 M.S.P.R. 163, ¶¶ 12‑13. Accordingly, the appellant’s
argument fails.
NOTICE TO THE APPELLANTS 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.
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
9
representation
10
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.