Hank A. Wilson v. Department of the Army

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
HANK A. WILSON, DOCKET NUMBER
Appellant, DA-0752-13-2096-I-1
v.
DEPARTMENT OF THE ARMY, DATE: August 19, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Hank A. Wilson, Texarkana, Texas, pro se.
Craig Paulson, Esquire, Texarkana, Texas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s decision to place him in furlough status for no more than
11 discontinuous days between July 8 and September 30, 2013. 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
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review and AFFIRM the initial
decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant, a Quality Assurance Specialist, GS-1910-11, at the agency’s
Red River Army Depot in Texarkana, Texas, appealed the agency’s action placing
him in furlough status for no more than 11 discontinuous days between July 8 and
September 30, 2013. 2 Initial Appeal File (IAF), Tab 1, Tab 8 at 7. The appellant
waived his request for a hearing, and the case was decided based on the written
record. IAF, Tab 7. The administrative judge found that the appellant was duly
issued a notice of proposed furlough and a decision letter. IAF, Tab 9, Initial
Decision (ID) at 2-3. He found that the agency demonstrated that it had cause to
furlough the appellant. ID at 3-5. The appellant argued that he was exempt from
the furlough because his salary was paid out of a Working Capital Fund (WCF).
IAF, Tab 8 at 4-6. The administrative judge found that circumstances in this case
resembled other WCF cases in which the Board had affirmed furlough actions.
2
This appeal was initially placed in a consolidation of appeals filed by employees at
Tinker Air Force Base. IAF, Tab 2; see Tinker v. Department of the Air Force,
MSPB Docket No. DA-0752-14-0407-1-1, Initial Decision (Dec. 19, 2014). The
Department of the Air Force filed a motion to dismiss the appeal because the appellant
was not an employee. IAF, Tab 3. The administrative judge determined that the
appellant was instead a United States Army employee and thus severed his appeal from
the consolidation. IAF, Tab 4.
3
The administrative judge further found that the furlough action here promoted the
efficiency of the service in that it was a reasonable management solution to the
agency’s financial circumstances and the agency had implemented it in a fair and
even manner. ID at 5-7.
¶3 The appellant filed a timely petition for review in which he asserts that the
agency lacked the authority to furlough employees paid from WCFs. Petition for
Review (PFR) File, Tab 1. He argues that the furlough action is invalid
because 10 U.S.C. § 2472 prohibits depot-level maintenance and repair workloads
from being managed on the basis of any constraint or limitation in terms of man
years, end strength, full-time equivalent positions, or maximum number of
employees. Id. at 4. Instead, he asserts, section 2472 requires employees to be
managed solely on the basis of the available workload requests and the funds
made available for depot-level maintenance and repair. Id. The appellant
additionally argues that 10 U.S.C. § 129(b) constrains agencies from furloughing
employees whose salaries and benefits are funded from sources other than
appropriated funds. Id. These are the same arguments he asserted before the
administrative judge. IAF, Tab 8 at 4‑6.
¶4 As the administrative judge explained, the appellant’s salary is paid directly
from WCF monies, but the WCF receives its funding from the appropriations
made to the various entities it serves. ID at 4-5. In similar circumstances, the
Board has upheld a furlough action. Einboden v. Department of the
Navy, 122 M.S.P.R. 302, ¶¶ 13-18, aff’d, 802 F.3d 1321 (Fed. Cir. 2015). As for
whether the furlough of employees paid through a WCF is precluded by law, we
found nothing in the statutes the appellant cited that would prohibit the agency
from furloughing WCF employees. The appellant has not alleged or shown that
the furlough conflicted with any of the constraints on the agency’s management
of the funding for indirectly funded employees that are set forth in 10 U.S.C.
4
§ 129(b), 3 and in any event, the Board previously has rejected the argument that
the furloughs constituted an improper constraint or limitation on the management
of civilian personnel in violation of 10 U.S.C. § 129(a)-(b). NV24 ‑ Keyport2 v.
Department of the Navy, 123 M.S.P.R. 263, ¶¶ 5-9 (2016).
¶5 The issue before the Board in a furlough appeal is not the source of funding
for employees’ salaries, but rather, whether the furlough was a reasonable
management solution to the financial restrictions placed on the agency.
Einboden, 122 M.S.P.R. 302, ¶ 13. The Board held in Einboden that an agency
could consider its budget holistically rather than isolate the funding situation for
each of its subordinate organizations. Id., ¶ 15. The Board further held that the
agency was not required to show that it reassigned any funds saved by
implementing furloughs to meet its burden to prove that the furlough action was a
reasonable management solution to the agency’s financial restrictions. Id.,
¶¶ 16-18. The U.S. Court of Appeals for the Federal Circuit affirmed the Board’s
decision in Einboden. Einboden v. Department of the Navy, 802 F.3d 1321,
1325-26 (Fed. Cir. 2015).
¶6 The appellant additionally argues that members of the House of
Representatives sought to intervene in the furlough of WCF employees on
July 23, 2013, when it amended H.R. 2397, the Department of Defense
3
Subsection 129(b) states:
The number of, and the amount of funds available to be paid to, indirectly
funded Government employees of the Department of Defense
may not be ‑
(1) subject to any constraint or limitation on the number of such personnel
who may be employed on the last day of a fiscal year;
(2) managed on the basis of any constraint or limitation in terms of man
years, end strength, full-time equivalent positions, or maximum number of
employees; or
(3) controlled under any policy of the Secretary of a military department
for control of civilian manpower resources.
5
Appropriations Act, 2014, to prohibit the use of WCF monies to implement
furloughs of Department of Defense employees. PFR File, Tab 1 at 4; see
H.R. 2397, 113th Cong., Amend. 381 (2013). However, H.R. 2397 was never
enacted. The bill that ultimately became law did not include the pertinent
provision in the amendment. See Consolidated Appropriations Act, 2014, Pub. L.
No. 113-76, 128 Stat. 5 (2014). Accordingly, we affirm the initial decision.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
6
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
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: ______________________________
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.