Johnathan Gajdos v. Department of the Army , 2014 MSPB 55 ( 2014 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 55Docket No. SF-0752-13-1913-I-1
Johnathan Gajdos, 1
Appellant,
v.
Department of the Army,
Agency.
July 22, 2014
Johnathan Gajdos, Monterey, California, pro se.
Michael L. Halperin, Esquire, Monterey, California, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
Vice Chairman Wagner issues a separate, dissenting opinion.
OPINION AND ORDER
¶1 The appellant petitions for review of an initial decision that affirmed the
agency’s furlough action. For the following reasons, we find that the petitioner
has not established a basis under 5 C.F.R. § 1201.115 to grant the petition for
review. We therefore DENY the petition and AFFIRM the initial decision’s due
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Army
Training Doctrine Command v. Department of the Army, MSPB Docket
No. SF-0752-13-4840-I-1.
2
process analysis AS MODIFIED by this Opinion and Order, still affirming the
furlough action.
BACKGROUND
¶2 On May 28, 2013, the agency issued a Notice of Proposed Furlough
informing the appellant, an Assistant Professor, that the Defense Language
Institute Foreign Language Center (DLIFLC) proposed to furlough him 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 1, 7-8; Army Training
Doctrine Command v. Department of the Army, MSPB Docket No. SF-0752-13-
4840-I-1, Consolidation File (CF), Tab 8 at 23. The agency notified the appellant
that the Budget Control Act of 2011, as amended by the American Taxpayer
Relief Act of 2012, made across-the-board reductions to budgetary resources for
the federal government, that DoD must and will protect wartime operations
funding for its troops in harm’s way, that “[t]his inevitably means larger cuts in
base-budget funding for the Operation and Maintenance (O&M) accounts,” and
that DoD “will need funding in other accounts that can be used to provide the
warfighters with what they need to protect national security and fight the war.”
CF, Tab 8 at 23. The agency afforded the appellant an opportunity to respond
orally and/or in writing to the proposal, to review the supporting material, and to
furnish affidavits or other supporting documentary evidence in his answer. Id.
at 24. The proposal notice indicated that no decision to furlough had been made
or would be made until full consideration was given to the appellant’s reply. Id.¶3 By written notice dated June 14, 2013, the agency’s deciding official
informed the appellant that his written and oral replies to the proposal notice had
been reviewed and carefully considered, determined that the reasons for the
proposed furlough remained valid, and indicated that the procedures and
3
conditions related to the furlough were determined to be the most equitable means
of implementing the furlough and that the appellant would be required to be on a
discontinuous furlough for no more than 11 workdays during the period from
July 8, 2013, through September 30, 2013. IAF, Tab 1 at 10-11. The record
includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
2013, on discontinuous days between July 8, 2013, and September 30, 2013, not
to exceed a maximum of 88 hours, with the appellant’s supervisor informing the
appellant of the specific furlough dates before the beginning of each pay period.
Id. at 7-8.
¶4 On appeal, the appellant asserted that: (1) the furlough did not promote the
efficiency of the service because active-duty service member students at the
DLIFLC would be present for instruction with half-strength teaching teams,
which could result in lower student graduation rates and increased costs
associated with extending the length of student training; (2) it appeared that his
written response to the proposal had not been considered because the decision
notice incorrectly indicated that he had made an oral reply and did not
specifically address the concerns he had raised; (3) the decision notice did not
specify the reasons for the decision, but merely indicated that the reasons set
forth in the proposal notice remained valid; (4) the decision notice did not state
the basis for selecting a particular employee for furlough, as required by 5 C.F.R.
§ 752.404, and the agency did not provide him with any materials the agency
relied upon specific to his furlough action; (5) the DLIFLC Commandant, who
signed the decision letter, did not appear to be empowered to make the decision,
which should have been signed by the Secretary of Defense as the true deciding
official; and (6) the agency engaged in discrimination based on national origin
because it furloughed U.S. citizens but not foreign national civilian employees on
H-1B visas. IAF, Tab 1 at 5; see IAF, Tab 8 at 5-10.
¶5 The administrative judge consolidated this appeal with several other
appeals. CF, Tabs 2-3. Based on the written record because the appellants either
4
did not request a hearing or withdrew their request for a hearing, see, e.g., IAF,
Tab 13, the administrative judge affirmed the furlough actions, CF, Tab 21,
Initial Decision (ID) at 1-2, 12. The administrative judge found that the agency
subsequently reduced the number of furlough days served by the appellants to 6
workdays. ID at 3. She further found that the agency proved that the furloughs
promoted the efficiency of the service by offering unrebutted evidence that the
agency had to make significant spending cuts because of sequestration, 2 that the
furloughs helped the agency avoid a deficit without jeopardizing military
readiness, and that the agency imposed the furloughs uniformly with exceptions
only for a limited number of categories, such as employees who were needed to
protect life or property or whose absence would result in the failure of a critical
mission. ID at 6.
¶6 Regarding the appellants’ claim relating to H-1B visa holders, who are not
U.S. citizens, the administrative judge held that the appellants did not establish a
prima facie case of discrimination because citizenship is not a cognizable
protected category under Title VII of the Civil Rights Act of 1964, and the
appellants did not specify that they were members of a protected category with
respect to national origin, given that U.S. citizens encompass a variety of national
origins. ID at 7-8. The administrative judge also held that the agency established
a legitimate management reason for exempting H-1B visa holders from the
furlough, namely, regulations requiring the agency to pay H-1B visa holders even
if the employee is not working as long as the inability to work is the result of the
2
Under the Balanced Budget and Emergency Deficit Control Act, as amended, see
2 U.S.C. § 901a, Congress required the Office of Management and Budget to calculate
and the President to order a “sequestration” on March 1, 2013, for FY 2013 that would
reduce each spending account within certain security and nonsecurity categories by a
uniform percentage to achieve certain reduction goals. See Chandler v. Department of
the Treasury, 120 M.S.P.R. 163, ¶ 4 (2013); CF, Tab 7 at 69.
5
agency’s action or inaction. ID at 8. The administrative judge rejected the
appellants’ harmful error claim, finding as to 5 C.F.R. § 752.404(b)(2) that there
was no evidence that the appellants and other employees who were not
furloughed were in the same competitive level, and that the agency, in any event,
provided sufficient notice of the basis for furloughing some employees but not
others and the specific reasons for the furlough. ID at 8-9.
¶7 Finally, the administrative judge held that the appellants did not prove that
the agency violated their due process rights. ID at 10-12. In this regard, the
administrative judge held that there was no regulatory or judicially imposed
requirement that the agency specifically address all arguments raised in a
response to a proposal notice, and that a failure to address all such arguments
was not a due process violation. The administrative judge also noted that a
May 14, 2013 memorandum from the Secretary of Defense indicated that
deciding officials would have the discretion to execute the full range of options,
including reducing the number of days an individual is furloughed or granting an
exception from the furlough. ID at 11; see CF, Tab 7 at 70-74. The
administrative judge further held that the deciding official’s limited discretionary
review in this case was consistent with the nature of furloughs resulting from a
sequestration, which are unlike other adverse actions because factors normally
within a deciding official’s discretion, such as the factors set forth in Douglas v.
Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which are relevant in
agency penalty determinations, do not apply here. ID at 12.
ANALYSIS
¶8 The appellant asserts on review that there is substantial evidence indicating
that the deciding official did not have the authority to reverse the course of the
proposed furlough, including: (1) a memorandum from the deciding official
indicating that the furlough was mandatory to meet required spending reductions
and that neither the union nor management would be able to stop the furlough;
6
(2) an email from the deciding official indicating that “we will furlough only if
we are told we have to”; (3) the agency’s response to the appeal, which indicated
that the agency is a “top-down organization,” which is required to obey orders
within the chain of command, and the deciding official was ordered to furlough
all non-exempt civilian employees; and (4) the agency’s response to an
interrogatory indicating that, if an employee was not exempt from the furlough,
the response to the proposal notice was given no further consideration. Petition
for Review (PFR) File, Tab 1 at 4-6. The appellant further contends that his
pre-decisional reply opportunity was precluded because a decision made by the
Secretary of Defense before the proposal notice was issued required the deciding
official to furlough him, and that the agency did not follow its own adverse action
procedures, which required that deciding officials have “full authority” to make a
decision. Id. at 7. In this regard, the appellant asserts that he had no opportunity
to reply to the Secretary of Defense, “the official who appears to have actually
been the one making the decision to effect this adverse action.” Id. at 9. Finally,
the appellant asserts that the action did not promote the efficiency of the service
because the agency admitted that the furlough created delays, mission failures,
and cancellations relating to administrative or day-to-day operations. Id. at 8.
¶9 “Furlough” means 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. A furlough of 30 days or
less is appealable to the Board under 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512(5),
7513(d); 5 C.F.R. § 752.401(a)(5). A furlough of more than 30 days is
appealable to the Board as a reduction in force (RIF) action under 5 C.F.R.
§ 351.901. Agencies must conduct furloughs of more than 30 days according to
the RIF procedures of 5 C.F.R. Part 351, and the Board will review such actions
to determine whether the agency properly invoked and applied the RIF
regulations. Williams v. Tennessee Valley Authority, 24 M.S.P.R. 555, 557
(1984); 5 C.F.R. § 351.201(a)(2). Agencies may conduct furloughs of 30 days or
7
less without following RIF procedures. Chandler, 120 M.S.P.R. 163, ¶ 5. Such
actions are reviewable by the Board under the “efficiency of the service” standard
of 5 U.S.C. § 7513(a). Chandler, 120 M.S.P.R. 163, ¶ 5; Clerman v. Interstate
Commerce Commission, 35 M.S.P.R. 190, 192 (1987); see 5 C.F.R. § 752.403.
Both RIFs and adverse action furloughs, however, are taken for the same types of
nondisciplinary reasons. Chandler, 120 M.S.P.R. 163, ¶ 5; see Hastie v.
Department of Agriculture, 24 M.S.P.R. 64, 75 (1984), overruled on other
grounds by Horner v. Andrzjewski, 811 F.2d 571, 574-77 (Fed. Cir. 1987). In
light of the basic similarities between RIF and adverse action furloughs, RIF
principles are instructive in determining the scope of the Board’s review of
adverse action furloughs and what it means for a furlough of 30 days or less to be
taken for the “efficiency of the service.” Chandler, 120 M.S.P.R. 163, ¶ 7.
¶10 Furloughs are unique among adverse actions because by definition they are
taken for nondisciplinary reasons and are generally used to address work or
funding shortages or other matters that are not personal to the affected employee.
5 U.S.C. § 7511(a)(5); Chandler, 120 M.S.P.R. 163, ¶ 8. 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,” Clark v. Office of Personnel
Management, 24 M.S.P.R. 224, 225 (1984), i.e., that the agency applied the
adverse action furlough uniformly and consistently, just as it is required to apply
a RIF, Chandler, 120 M.S.P.R. 163, ¶ 8; 5 C.F.R. § 351.201(c). The agency
is not required to apply the furlough in such a way as to satisfy the Board’s sense
of equity. Chandler, 120 M.S.P.R. 163, ¶ 8. Rather, the agency must treat
similar employees similarly and justify any deviations with legitimate
management reasons. Id.; see 5 C.F.R. § 752.404(b)(2) (“When some but not all
employees in a given competitive level are being furloughed, the notice of
proposed action must state the basis for selecting a particular employee for
8
furlough, as well as the reasons for the furlough.”). Which employees are
similarly situated for purposes of an adverse action furlough will be decided on a
case-by-case basis, but the Board is guided by RIF principles in making that
determination. Chandler, 120 M.S.P.R. 163, ¶ 8; see 5 C.F.R. § 752.404(b)(2)
(applying RIF competitive level principles to adverse action furloughs).
¶11 The Board has also held that its efficiency of the service determination
does not encompass agency spending decisions per se, including spending on
personnel matters. See Chandler, 120 M.S.P.R. 163, ¶ 9. Such matters belong to
the judgment of agency managers, who are in the best position to decide what
allocation of funding will best allow the agency to accomplish its mission. Id.The efficiency of the service determination does encompass issues relating to the
uniform and consistent application of the furlough, including whether the agency
used a furlough to target employees for personal reasons, or attempted to exempt
certain employees from the furlough without legitimate management
reasons. 3 Id.¶12 Although the appellant asserts that the agency’s action did not promote the
efficiency of the service because the agency admitted that the furlough created
delays, mission failures, and cancellations relating to administrative or
day-to-day operations, PFR File, Tab 1 at 8, these types of disruptions are the
likely result of any furlough and do not demonstrate a failure to meet the
3
The dissent asserts in ¶ 4 that the Board applies “a diminished due process analysis”
when reviewing RIF and furlough adverse actions. We disagree. We do agree with the
dissent, though, that RIF and furlough adverse actions and inability to perform cases are
similar in that they all are not disciplinary in nature. We note, however, that an agency
takes a physical inability to perform action based on a finding that the particular
individual cannot do his or her job for medical reasons personal to the employee. In
contrast, furlough or RIF adverse actions target entire groups of employees or, indeed at
times, entire agencies for reasons not personal to any employee. Yet, agencies always
must satisfy the efficiency of the service standard in all these cases for the Board to
sustain the agency’s action.
9
efficiency of the service standard. We agree with the administrative judge’s
determination that the agency proved that the furlough promoted the efficiency of
the service because the agency showed that the furlough was a reasonable
management solution to the financial restrictions placed on it and applied its
determination as to which employees to furlough in a fair and even manner. ID
at 3-6; see Chandler, 120 M.S.P.R. 163, ¶ 8. We also agree with the
administrative judge that the agency established a legitimate management reason
for exempting H-1B visa holders from the furlough and that the appellant did not
prove national origin discrimination. ID at 7-8. To the extent that the appellant
has alleged that the agency committed harmful error because the deciding official
did not have “full authority” to make a decision regarding the furlough, the
appellant has not shown that any error in that regard likely caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. See 5 C.F.R. § 1201.56(c)(3).
¶13 Regarding the appellant’s due process contention, procedural due process
rights derive from a property interest in which the individual has a legitimate
claim of entitlement. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Once
acquired, a property interest falls within the protections of procedural due
process. A property interest is not created by the U.S. Constitution; rather, it is
created and its dimensions are defined by existing rules or understandings that
stem from an independent source, such as a statute. Stone v. Federal Deposit
Insurance Corporation, 179 F.3d 1368, 1374 (Fed. Cir. 1999).
¶14 Here, 5 U.S.C. §§ 7512(5) and 7513(a) provide that an agency may
furlough an employee for 30 days or less “only for such cause as will promote the
efficiency of the service.” This language creates a legitimate claim of entitlement
to retention in a pay status, and thus a property interest, that conditions the
placement of an employee in a temporary status without duties and pay on such
cause as will promote the efficiency of the service. See Stone, 179 F.3d at 1374(“If the government gives a public employee assurances of continued employment
10
or conditions dismissal only for specific reasons, the public employee has a
property interest in continued employment.”); McGriff v. Department of the Navy,
118 M.S.P.R. 89, ¶¶ 27-28 (2012) (finding the appellant entitled to constitutional
due process, i.e., notice and a meaningful opportunity to respond, upon being
indefinitely suspended based on the agency’s security clearance decision); Kriner
v. Department of the Navy, 61 M.S.P.R. 526, 532 (1994) (the agency’s
deprivation of the appellant’s property interest in his employment—his
suspension from his job—triggered the application of due process); see also
Krause v. Small Business Administration, 502 F. Supp. 1332, 1338-39 (S.D.N.Y.
1980) (finding a protected property interest in a federal employee’s expectation
of continued and uninterrupted public employment because the agency could
suspend him for 7 days only “for such cause as will promote the efficiency of the
service”). In fact, the Board held in Chandler, 120 M.S.P.R. 163, ¶ 31, that
information regarding the specific process applied by the agency in conducting a
furlough would be relevant to the issue of due process, thus implicitly finding a
protected property interest at stake. 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 sufficiently satisfied the
mandates of due process.
¶15 In a May 14, 2013 memorandum to the Secretaries of the Military
Departments and other DoD managers, the Secretary of Defense directed defense
managers to prepare to furlough most DoD civilians for up to 11 days. CF, Tab 7
at 70. The memorandum set forth the schedule for furloughs and specific
exceptions and noted that the decision was made very reluctantly. Id. The
memorandum indicated that the Secretary of Defense, along with the senior
civilian and military leadership of DoD, spent considerable time reviewing
information related to the need for furloughs and described in detail the major
budgetary shortfalls driving the basic furlough decision, including the amount of
the reduction in different budgetary accounts, an increase in fuel costs related to
11
wartime operating costs, and the amount of time left in the fiscal year. Id.
at 70-71. The memorandum also described the need to minimize the adverse
effect on military readiness, and detailed the other actions taken to reduce the
shortfall, such as cutbacks in training and facilities maintenance and efforts made
to obtain Congressional approval to shift funds between accounts. Id. The
Secretary of Defense determined that, even after taking these actions, DoD was
still short of needed operating funds for FY 2013, and that deciding to furlough
civilian personnel was an unpleasant but necessary choice when faced with the
alternative of making even larger cutbacks in training and maintenance, which
would further reduce readiness to handle contingency operations and put in
greater jeopardy military readiness in future fiscal years. Id. at 71. The
memorandum indicated that the Secretary of Defense sought advice and input
from senior leaders in the military departments and agencies, as well as advice
from senior civilian and military staff, and that the decision to direct furloughs of
up to 11 days for most civilian personnel represented half the number originally
planned, which reflected vigorous efforts to meet budgetary shortfalls through
actions other than furloughs. Id. The Secretary of Defense noted that furloughs
would be imposed in every military department and almost every agency with
limited exceptions driven by law and the need to minimize harm to mission
execution, such as civilians deployed to combat zones, civilians needed to protect
life and property, and civilians excepted for specific mission reasons or because
furloughing them would not free up money for mission needs. Id. at 71-72.
¶16 The May 14, 2013 memorandum also identified who could be a deciding
official, indicated that deciding officials were “charged with, and [were]
accountable for, making final decisions on furloughs for individual employees
after carefully considering the employee’s reply, if any, and the needs of the
Department,” and stated that deciding officials “[would] have the authority to
execute the full range of options with respect to providing relief in individual
employee cases,” including reducing the number of days or hours an individual
12
was to be furloughed or granting the employee an exception from the furlough.
Id. at 74.
¶17 After the agency issued its notice proposing his furlough, the appellant
submitted his written response to the notice to a “Reply Official,” i.e., the Deputy
Chief of Staff for Personnel and Logistics. CF, Tab 8 at 23-24, 50-51. In his
June 14, 2013 decision letter, the Commandant of the DLIFLC indicated that the
appellant’s response was “reviewed and carefully considered,” but that the
reasons for the proposed furlough remained valid. IAF, Tab 1 at 10-11. In its
response to one of the appellant’s interrogatories in this case, the agency
indicated that the following procedures were used after the appellant filed his
response to the proposed furlough:
When the Agency received written replies to the Proposed Furloughs,
the Reply Official drafted a summary of the employee’s arguments,
and sent the reply and summary to the Office of the Staff Judge
Advocate (OSJA) for a legal review to determine whether the
employee fell within one of the furlough exemptions. The OSJA
conducted a review, after which, the package was sent to the
Deciding Official for final review and signature. If the employee
was not exempt from furlough, their [sic] response was given no
further consideration.
The Appellant neither fell into one of the furlough exemptions, nor
did he claim to be exempt in his response. As a result, his response
was given no consideration beyond what is described above.
IAF, Tab 12 at 10. The appellant also relies upon a March 1, 2013 memorandum
from the Commandant to DLIFLC faculty and staff indicating that “the furlough
will affect all DLIFLC Department of Army civilians; there will be very few
exceptions for the Army and we do not expect any for DLIFLC,” that “the
furlough will be mandatory to meet required spending reductions,” and that
“[n]either the Union nor DLIFLC management will be able to stop the furlough.”
IAF, Tab 11 at 9. The appellant further contends that the Commandant stated
during a February 27, 2013 “Fiscal Uncertainty” briefing that “we can meet our
budget cuts without furlough, so we will furlough only if we are told we have to.”
13
Id. at 11; see CF, Tab 7 at 6 (the agency’s response to the appeal indicating that
the appellants do not fall into one of the categories of exempt civilians, and
“[b]ecause the Appellants were not exempt from the furlough, and because the
Agency was required … to furlough all non-exempt civilian employees, the
Agency furloughed the Appellants.”). The appellant asserts these documents
indicate that the Commandant had only limited, if any, authority and was not the
true decision maker because he did not have the authority to reverse the furlough.
PFR File, Tab 1 at 4-8. Thus, the appellant alleges that additional procedural
protections were required in the form of an opportunity to submit a response to an
official, such as the Secretary of Defense, with the authority to reverse the
furlough. Id. at 9.
¶18 Due process requires, at a minimum, that an employee being deprived of
his property interest be given “the opportunity to be heard ‘at a meaningful time
and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Such opportunity
“should be an initial check against mistaken decisions—essentially, a
determination of whether there are reasonable grounds to believe that the charges
against the employee are true and support the proposed action.” Cleveland Board
of Education v. Loudermill, 470 U.S. 532, 545-46 (1985). Nevertheless, “due
process, unlike some legal rules, is not a technical conception with a fixed
content unrelated to time, place, and circumstances.” Mathews, 424 U.S. at 334.
Rather, it is “flexible and calls for such procedural protections as the particular
situation demands.” Id. Thus, resolution of the issue of whether the
administrative procedures provided here are constitutionally sufficient requires
the Board to analyze the governmental and private interests that are affected. See
id. In particular, identification of the specific dictates of due process generally
requires consideration of three factors: first, the private interest affected by the
official action; second, the risk of an erroneous deprivation of the private interest
through the procedures used, and the probable value, if any, of additional or
14
substitute procedural safeguards; and third, the government’s interest, including
the function involved and the fiscal and administrative burdens the additional or
substitute procedural requirement would entail. Id. at 335.
¶19 Regarding the first Mathews factor, i.e., the private interest affected by the
action, although the Supreme Court has recognized the severity of depriving
someone of the means of livelihood by terminating the individual, it has also
emphasized that, in determining what process is due, one must take into account
the length and finality of that deprivation. Gilbert v. Homar, 520 U.S. 924, 932
(1997); see Miranda v. Southern Pacific Transp. Co., 710 F.2d 516, 524 (9th Cir.
1983) (Wallace, J., concurring in part and dissenting in part) (“Although the
requirements of procedural due process apply to the deprivation of even small
amounts of property, the severity of the deprivation is a factor to be weighed in
determining the appropriate form of the hearing.”). Thus, as long as a furloughed
or suspended employee receives a sufficiently prompt post-deprivation hearing,
the lost income from such temporary actions is “relatively insubstantial
(compared with termination), and fringe benefits such as health and life insurance
are often not affected at all.” See Homar, 520 U.S. at 932. The 6-day furlough in
this case is far less substantial than the termination at issue in Loudermill and the
approximately 10-month suspension at issue in McGriff, 118 M.S.P.R. 89, ¶ 29,
which the Board described as a “significant” deprivation. We nevertheless
recognize that, although a furlough is a temporary deprivation, like a suspension,
it is nonetheless “likely to cut off subsistence income and to prevent one from
obtaining other gainful employment,” and it may have a “great practical impact”
on the employee. Engdahl v. Department of the Navy, 900 F.2d 1572, 1575
(Fed. Cir. 1990).
¶20 Second, we must consider the risk of an erroneous deprivation of such
interest through the procedures used and the probable value, if any, of additional
or substitute procedural safeguards. Mathews, 424 U.S. at 335. When the Court
in Loudermill, 470 U.S. at 535, 542-46, considered the second Mathews factor in
15
the context of a public employee who had been discharged from employment
based on his dishonesty in filling out an employment application, it explained
that, for the purpose of reaching an accurate decision, the opportunity to respond
to a proposed removal is important for two reasons. First, an adverse action will
often involve factual disputes and consideration of an employee’s response may
clarify such disputes. Id. at 543; see Stone, 179 F.3d at 1376. Second, “[e]ven
where the facts are clear, the appropriateness or necessity of the [penalty]
may not be,” and in such cases the employee must receive a “meaningful
opportunity to invoke the discretion of the decisionmaker.” Loudermill, 470 U.S.
at 543. Thus, “the employee’s response is essential not only to the issue of
whether the allegations are true, but also with regard to whether the level of
penalty to be imposed is appropriate.” Stone, 179 F.3d at 1376.
¶21 We find in this case that there was a low risk of an “erroneous” deprivation
of a property interest through the procedures used by the DLIFLC. As set forth
above, the procedures used by the agency were designed to limit the risk of an
erroneous deprivation of a property interest by ensuring that the appellant did not
fall within one of the furlough exemptions. The appellant does not suggest that
any such error occurred, or was even likely to occur, concerning him. See Wash.
Teachers’ Union Local # 6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997)
(“Although the Union suggests that factual errors, such as attributing disciplinary
proceedings to the wrong teachers, could produce erroneous scores on ranking
forms, the record contains no evidence that such errors have occurred, much less
that the risk of such errors is significant.”).
¶22 Moreover, in considering what procedural protections are required in this
situation, there is a fundamental difference in the nature of the action at issue
here as compared to the actions at issue in such cases as Loudermill and McGriff.
As set forth above, the action in Loudermill was based on employee misconduct
such that the court found it necessary, in order to reduce the risk of an erroneous
deprivation, to permit the employee to invoke the discretion of the decision
16
maker as to the appropriateness or necessity of the penalty. 470 U.S. at 545-46.
Similarly, in McGriff, 118 M.S.P.R. 89, ¶¶ 3-6, 33, the Board held that a
significant question existed as to “whether the appellant had a meaningful
opportunity to respond to the proposed indefinite suspension such that the
procedures that were used posed a risk of erroneous deprivation of the appellant’s
property interest.” There, the agency had indefinitely suspended the appellant
based on its suspension of his security clearance, which in turn was based on
alleged conduct that involved questionable judgment, untrustworthiness,
unreliability, and unwillingness to comply with rules and regulations. Here, by
contrast, DoD and the agency made certain policy and spending decisions and
directed the furlough action at the appellant’s position, not at any conduct,
characteristic, qualification, or reputation of the appellant as an individual. See
Chandler, 120 M.S.P.R. 163, ¶ 8 (furloughs are unique among adverse actions
because by definition they are taken for nondisciplinary reasons and are generally
used to address work or funding shortages or other matters that are not personal
to the affected employee). Thus, the agency did not impose a “penalty” upon the
appellant that was amenable to invoking the discretion of the deciding official in
favor of the appellant as an individual. See id., ¶ 31 (the factors set forth in
Douglas, 5 M.S.P.R. at 305-06, which are relevant in agency penalty
determinations in adverse action cases, do not apply to furloughs, which
are nondisciplinary).
¶23 In making such policy decisions in conducting a furlough, agencies have
broad management discretion. See id., ¶ 9 (matters such as spending decisions
belong to the judgment of agency managers, who are in the best position to
decide what allocation of funding will best allow the agency to accomplish its
mission); Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (agencies
retain the expertise to make spending choices to save funds necessary to avoid
furloughs). Thus, there is little risk in the procedures used by the agency of an
“error” as that term is generally understood. See UDC Chairs Chapter, Am. Ass’n
17
of Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of Columbia,
56 F.3d 1469, 1474 (D.C. Cir. 1995) (“Where, as here, the deprivation turns on a
policy decision and not on an individual’s characteristics, a predeprivation
hearing would do little to reduce the risk of erroneous deprivation of the
chairpersons’ interests.”); Brown v. Brienen, 722 F.2d 360, 368 (7th Cir. 1983)
(Flaum, J., concurring) (the “risk of government error and the value of a
predeprivation hearing in reducing that risk” is “insubstantial” when the decision
not to grant compensatory time off is based on staffing shortages and
individualized determinations of fact or law are not necessary). We therefore
find only minimal probable value in the substitute procedural safeguard suggested
by the appellant, namely, an opportunity to submit his response to a different
decision maker, such as the Secretary of Defense, who would presumably have
had superior authority to that of the DLIFLC Commandant with respect to
reversing the furlough.
¶24 Our analysis of the third Mathews factor, the government’s interest,
including the function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail, turns largely on
sheer numbers. See Wash. Teachers’ Union Local # 6, 109 F.3d at 781.
Irrespective of the total number of DoD civilian employees affected by the
furlough nationwide, the record reflects that the Department of the Army’s
furlough alone was expected to impact 251,000 civilians. CF, Tab 7 at 49, 52.
Requiring the Secretary of Defense to have considered and answered all of the
responses to the proposed furloughs affecting DoD civilian employees would
have slowed the furlough process considerably and added a significant
administrative burden. Cf. Wash. Teachers’ Union Local # 6, 109 F.3d at 781(requiring principals to answer each of the 400 responses to the teachers’ ranking
forms would have slowed the RIF process considerably, both delaying and
reducing the financial savings that were desperately needed). Under these
circumstances, we find that the government’s interest under the third Mathews
18
factor weighs heavily. See Whalen v. Mass. Trial Court, 397 F.3d 19, 25 (1st Cir.
2005) (because reorganizations often affect numerous employees, the
governmental interest in efficient administration may weigh more heavily).
¶25 Balancing the Mathews factors and taking into account the availability of
post-deprivation relief before the Board, see Clements v. Airport Auth. of Washoe
Cnty., 69 F.3d 321, 332 (9th Cir. 1995) (the nature of subsequent proceedings
may lessen the amount of process that the state must provide pre-termination), we
hold that the agency satisfied the requirements of due process in this case. The
agency’s need to cut expenditures quickly and efficiently in the face of an
extensive number of civilian employees furloughed nationwide as a result of the
sequester outweighed the appellant’s interest given the length of the furlough and
the minimal risk of error involved. 4
4
In concluding that the agency failed to provide the appellant with a meaningful
opportunity to respond because the deciding official presumably did not give any
consideration to the appellant’s response to the furlough notice, the dissent relies on a
statement the appellant made in his January 6, 2014 “Supplement to the Record.” The
appellant claimed therein that the agency, in response to one of his interrogatories,
wrote that, “[i]f the employee was not exempt from [the] furlough, their [sic] response
was given no further consideration . . . . The appellant neither fell into one of the
furlough exemptions, nor did he claim to be exempt in his response. As a result, his
response was given no consideration beyond what was described above.” IAF, Tab 14
at 6, Tab 12 at 10 (emphasis added). We believe the dissent’s reliance on the
appellant’s statement may be misplaced for three reasons.
First, the quoted language itself denotes, by inclusion of the words “further
consideration,” that the agency did consider the appellant’s response. Second, the
appellant omitted a crucial sentence at the end of the agency’s response to this
interrogatory. Importantly, in this missing sentence, the agency explained that: “[t]he
appellant acknowledged receipt . . . of the letter the Agency presented him, which
informed him that his response had been considered, but that, nonetheless, the
reasons for furloughing him remained valid and would go into effect as planned.” IAF,
Tab 12 at Exhibit E (emphasis added). This omitted language reflects once again that
the agency gave consideration to the appellant’s reply. Third, the agency’s response to
the interrogatory states that the agency provided the appellant with “no consideration
beyond what is described above.” The phrase, “what is described above” refers to the
preceding paragraph of the agency’s response to the interrogatory, in which the agency
19
¶26 Accordingly, we AFFIRM the initial decision AS MODIFIED by this
Opinion and Order, still affirming the furlough action.
ORDER
¶27 This is the final decision of the Merit Systems Protection Board in this
appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
§ 1201.113(c)).
elaborates on the process it provided the appellant and other employees to ensure that
they were given a meaningful opportunity to respond. In particular, as we stated above
in ¶ 17, the agency reported that:
When the Agency received written replies to the Proposed Furloughs, the
Reply Official drafted a summary of the employee’s arguments, and sent a
reply and summary to [OSJA] for a legal review to determine whether the
employee fell within one of the furlough exemptions. The OSJA
conducted a review, after which, the package was sent to the Deciding
Official for final review and signature. If the employee was not exempt
from furlough, their [sic] response was given no further consideration.
Id. As this language makes plain, the agency’s review process was a far cry from “an
empty formality,” as the dissent characterizes it. In fact, the agency provided three
steps during the review process: (a) the reply official’s receiving, reviewing, and
summarizing the appellant’s reply; (b) the OJSA’s receiving and legally reviewing both
the appellant’s reply and the reply official’s summary of the appellant’s arguments; and
(c) the deciding official’s review, prior to signing the final decision, of the “package,”
which included the appellant’s response. In light of these factors, we believe that the
agency ensured that the appellant was given a meaningful opportunity to respond to the
furlough notice and that the agency, including the deciding official, duly considered the
appellant’s response to the furlough notice. See Lachance v. Erickson, 522 U.S. 262,
266 (1998) (“The core of due process is the right to notice and a meaningful
opportunity to be heard.”).
20
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request further review of this final decision.
Discrimination Claims: Administrative Review
You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you
submit your request 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 your request via commercial delivery or by a method requiring a
signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, NE
Suite 5SW12G
Washington, D.C. 20507
You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.
Discrimination and Other Claims: Judicial Action
If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
21
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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. § 2000e5(f) and
29 U.S.C. § 794a.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
DISSENTING OPINION OF ANNE M. WAGNER
in
Johnathan Gajdos v. Department of the Army
MSPB Docket No. SF-0752-13-1913-I-1
¶1 In this appeal, the agency has acknowledged that the appellant’s response to
its proposed furlough action was not given any consideration by the deciding
official after it was determined that he did not fall into one of several specified
furlough exemptions. Initial Appeal File (IAF), Tab 12 at 10. This issue raises a
concern that the appellant was not provided a meaningful opportunity to respond
to the agency’s notice of proposed action. After finding that furloughs of 30 days
or less are fundamentally different in nature from other types of adverse actions
appealable to the Board, the majority holds that the agency satisfied minimum
requirements of due process. Majority Opinion (Maj. Op.), ¶¶ 18-25. I
respectfully dissent because I disagree with the majority’s determination that
employees subject to furlough actions are entitled to less protection under the
Fifth Amendment than those facing other adverse actions identified in 5 U.S.C.
§ 7512.
¶2 As explained more fully in my separate opinion in Chandler v. Department
of the Treasury, 120 M.S.P.R. 163 (2013), I disagree with the majority’s
application of our highly deferential regulatory standard for reviewing reduction
in force (RIF) cases to the adjudication of the government-wide furloughs
implemented as a result of sequestration. The plain language of the Civil Service
Reform Act 1 simply provides no basis for concluding that Congress intended that
1
The Civil Service Reform Act (Act) identifies the following five personnel actions as
subject to the substantive and procedural protections set forth in 5 U.S.C. § 7513:
removals; suspensions for more than 14 days; reductions in grade; reductions in pay;
and furloughs of 30 days or less. 5 U.S.C. § 7512(1)-(5). The Act also explicitly
2
furloughs of 30 days or less be treated any differently from the other statutorily
appealable adverse actions identified in 5 U.S.C. § 7512(1)-(4). Had Congress so
intended, it presumably would have excluded furloughs, as it did RIFs, from
coverage under 5 U.S.C. § 7513. However, beyond noting that furloughs and RIF
actions are both non-disciplinary and generally triggered by a shortage of funds,
the majority still fails to provide a convincing legal basis for deviating so
significantly from the plain statutory language by essentially importing
deferential RIF concepts into our adjudication of actionable furloughs.
¶3 Consistent with the approach announced in Chandler, the majority here
undertakes to reexamine the question of what process is constitutionally due
furloughed employees. Maj. Op., ¶¶ 10, 22. I recognize that the Supreme Court,
in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), said that “due process, unlike
some legal rules, is not a technical conception with a fixed content unrelated to
time, place, and circumstances . . . [but, rather] is flexible and calls for such
procedural protections as the particular situation demands.” Id. However, the
Supreme Court has already distilled the Mathews factors to arrive at the
fundamental contours of due process, i.e., notice and meaningful opportunity to
respond, when a public employee is deprived of a property interest in
employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). For
this reason, I believe that the majority’s discussion (Maj. Op., ¶¶ 18-25) of
Mathews v. Eldridge, and particularly its application of the Mathews factors to
define what constitutional process is due under these circumstances, to be
unnecessary. Instead, our examination of an employee’s entitlement to due
process should be governed by Loudermill.
¶4 Nor do I believe that we can construe 5 U.S.C. § 7512 as creating a separate
class of adverse actions, furloughs, warranting a diminished due process analysis.
excludes certain personnel actions, including, inter alia, a RIF, from coverage under
5 U.S.C. § 7513.
3
The majority explains that the need for this reexamination stems from the fact
that, unlike the other adverse actions identified in 5 U.S.C. § 7512, a furlough is
taken for nondisciplinary reasons, i.e., to address work or funding shortages,
rather than in response to individual misconduct. However, both the Board and
the U.S. Court of Appeals for the Federal Circuit have long recognized that
removals and suspensions taken for physical or medical reasons are not
disciplinary in the narrow sense of the term, i.e., a sanction for improper conduct,
but only in the broader sense of maintaining the orderly working of the
government. See Thomas v. General Services Administration, 756 F.2d 86, 88-89
(Fed. Cir. 1985) (appeal of an indefinite suspension pending a psychiatric fitness
for duty examination); Hunley v. Department of the Air Force, 36 M.S.P.R. 493,
495 (1988) (appeal of a period of enforced leave exceeding 14 days because of
medical restrictions of no bending, lifting, climbing and walking); Jackson v.
U.S. Postal Service, 5 M.S.P.R. 335, 336-37 (1981) (appeal of removal for failure
to meet physical requirements, i.e., lifting, climbing stairs, walking, standing and
bending, of the position), aff’d, 666 F.2d 258 (Fed. Cir. 1982). Yet, despite the
fact that these actions are not taken in response to individual misconduct, the
Board has not lowered the due process requirements afforded to employees
subjected to them. Indeed, we have held that, when an employee has been placed
on enforced leave for medical reasons without notice and an opportunity to
respond, the action must be reversed because it cannot withstand constitutional
scrutiny. Vargo v. U.S. Postal Service, 49 M.S.P.R. 284, 287 (1991).
¶5 If furloughed employees are entitled to the same constitutional protection
afforded individuals facing other statutorily appealable actions, the inescapable
conclusion would be that the agency denied the appellant due process here
because the deciding official did not give the appellant a meaningful opportunity
4
to respond to the action. 2 While due process does not require that a deciding
official have the authority to ignore or overrule agency policies, the reply
opportunity may not be an empty formality, and the deciding official should have
authority to take or recommend agency action based on the reply. In this case, it
appears that the Secretary of Defense delegated the “authority to execute the full
range of options with respect to providing relief in individual cases” to deciding
officials. Consolidation File (CF), Tab 7 at 74. Despite the broad delegation of
authority to the deciding official here to review individual cases, the record
shows that he limited his consideration of cases only to whether the employee had
met one of several specific furlough exemptions. For example, the appellant
argued in his written reply to the proposed furlough that the exemption of foreign
national employees improperly created two classes of employees, which gave an
improper preference to non-citizens in violation of merit systems principles. CF,
Tab 8 at 50. The deciding official apparently declined to give this argument any
consideration. Accordingly, I would have reversed the furlough in this case
because the record shows that the appellant’s response to the proposed furlough
was not given any further consideration by the deciding official after it was
determined that the appellant did not fall into one of several specified furlough
exemptions.
______________________________
Anne M. Wagner
Vice Chairman
2
Contrary to footnote 4 in the Majority Opinion, I find that the appellant has been
denied due process based upon the plain language in the agency’s response to the
appellant’s request for interrogatories and not the appellant’s characterization of it.
IAF, Tab 12 at 10.