Stephen M. Rodgers v. Department of the Navy

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2015 MSPB 45
Docket No. DC-0752-13-0799-I-1
Stephen M. Rodgers, 1
Appellant,
v.
Department of the Navy,
Agency.
July 23, 2015
Stephen M. Rodgers, Williamsburg, Virginia, pro se.
Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s furlough action. 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 5 C.F.R. § 1201.115 for granting
the petition for review. Therefore, we DENY the petition for review and
AFFIRM the initial decision.
1
Pursuant to 5 U.S.C. § 1201.36(a), this appeal was part of a consolidation. Navy
Munitions Command I v. Department of the Navy, MSPB Docket No. DC-0752-14-
0383-I-1.
2
BACKGROUND
¶2 On May 29, 2013, the agency proposed to furlough the appellant, an
Attorney Advisor at the Navy Munitions Command (NMC) in Yorktown,
Virginia, for no more than 11 workdays due to “extraordinary and serious
budgetary challenges facing the Department of Defense . . . for the remainder of
Fiscal Year . . . 2013, the most serious of which is the sequester that began on
March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 7-9. On May 29, 2013, the
appellant responded in writing to the notice of proposed furlough. IAF, Tab 3
at 5-6. On June 3, 2013, the deciding official, who was the Commander of NMC,
requested that the entire NMC be subject to an exception to the proposed
furlough. Navy Munitions Command I v. Department of the Navy, MSPB Docket
No. DC-0752-14-0383-I-1, Consolidated Appeal File (CAF), Tab 3 at 32. The
deciding official’s request for an organization-wide exception was denied by the
Director of the Navy Staff. Id. at 33-35. By written notice dated June 24, 2013,
the deciding official notified the appellant that he would be furloughed as
outlined in the proposal notice. IAF, Tab 1 at 10-12. The agency later reduced
the duration of the furlough from 11 days to 6 days. Department of the Navy
Administrative Record for FY 2013 Furlough Appeals (AR), Part 1, Tab 3,
available at http://www.mspb.gov/furloughappeals/navy2013.htm. The appellant
was furloughed on 6 nonconsecutive days. IAF, Tab 9 at 5-10.
¶3 The appellant filed an appeal, which the administrative judge consolidated
with the appeals of similarly situated employees. CAF, Tab 1. After holding a
hearing, the administrative judge issued an initial decision affirming the furlough.
CAF, Tab 14, Initial Decision (ID).
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1. The agency has filed a response in opposition to the appellant’s
petition for review. PFR File, Tab 2. The appellant has filed a reply to the
agency’s response. PFR File, Tab 4.
3
ANALYSIS
The appellant was provided with the required due process.
¶5 The appellant argues that he was denied due process because the deciding
official lacked any actual decision-making authority. PFR File, Tab 1 at 4-5.
Procedural due process rights derive from a property interest in which an
individual has a legitimate claim of entitlement. Gajdos v. Department of the
Army, 121 M.S.P.R. 361, ¶ 13 (2014). The appellant has a legitimate claim of
entitlement to retention in pay status, and thus a property interest, pursuant to
5 U.S.C. §§ 7512(5) and 7513(a), which conditions his placement in a temporary
status without duties and pay on such cause as will promote the efficiency of the
service. See Gajdos, 121 M.S.P.R. 361, ¶¶ 13-14. Having found that the
appellant has a property interest at stake in this appeal, the question remains as to
what process is due, and whether the procedure the agency applied satisfied the
mandates of due process. Id., ¶ 14.
¶6 Due process is a flexible concept that calls for such procedural protections
as the particular situation demands. See, e.g., Gajdos, 121 M.S.P.R. 361, ¶ 18;
Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 16, 19 (2014).
The appellant does not dispute that he received prior notice and an opportunity to
respond, but argues that he was not provided a meaningful opportunity to respond
because the deciding official was not empowered to make any decision except to
uphold the proposed furlough. PFR File, Tab 1 at 13-15. To support his
argument, the appellant relies on McGriff v. Department of the Navy,
118 M.S.P.R. 89 (2012), in which the Board held that constitutional due process
requires that the deciding official have authority to take or recommend agency
action based on the reply. McGriff, 118 M.S.P.R. 89, ¶ 33. Since issuing
McGriff, the Board has clarified that due process does not require that the
deciding official have the unfettered discretion to take any action he or she
believes is appropriate upon considering the proposed adverse action. See
Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 12 (2014); see
4
also Buelna, 121 M.S.P.R. 262, ¶ 27 (stating that due process does not demand
that the deciding official consider alternatives that are prohibited, impracticable,
or outside of management’s purview).
¶7 The Department of Defense issued guidance identifying categories of
employees who would not be subjected to the furlough. 2 AR, Part 1, Tab 12. The
agency described these categories as “limited exceptions driven by law and by the
need to minimize harm to mission execution.” Id. The agency instructed
deciding officials to consider all employee replies and grant relief if one of these
categorical exceptions applied, or another basis for granting individual relief
existed under applicable law or the guidance provided by the Office of the
Secretary of Defense. AR, Part 1, Tab 6 at 38 of 135. The undisputed evidence
in the record establishes that the deciding official requested that his entire
organization be excepted from the furlough due to its responsibility for safely
moving ordnance, but the Director of the Navy Staff denied his request
concluding that “[s]ufficient flexibilities exist to manage workload requirements
and scheduling of furlough days should emergent situations arise.” CAF, Tab 3
at 32-34. The deciding official testified that, after hearing the replies, he could
have decided that individual employees met the criteria for one of the categorical
exceptions. PFR File, Tab 2 at 73-75; see Gajdos, 121 M.S.P.R. 361, ¶ 21
(noting that the agency’s procedures ensured that the appellant did not fall within
a furlough exemption). The deciding official also could have recommended
modification of the furlough if he concluded that an employee should be subject
to an exception not previously recognized. AR, Part 1, Tab 2, ¶ 12. The deciding
official’s authority was limited in the sense that he could not have granted an
organization-wide exception to the furlough for NMC. But he possessed
sufficient decision-making authority in the context of this agency-wide furlough
2
The initial decision and the parties also refer to the categorical exceptions delineated
in the Department of Defense’s May 14, 2013 memorandum as “exemptions.”
5
to satisfy the appellant’s right to due process. 3 See Gajdos, 121 M.S.P.R. 361,
¶¶ 20-23, 25 (finding that the procedures used by the agency did not deprive the
appellant of constitutional due process even where the deciding official’s
discretion to invoke alternatives to the furlough was limited); cf. Putnam,
121 M.S.P.R. 532, ¶ 12 (the right to due process is not violated by a deciding
official’s limited authority to select a penalty other than the proposed indefinite
suspension for the revocation of a security clearance).
¶8 The appellant argues that the agency did not identify a “multi-tiered”
decision-making process similar to the process utilized in Gajdos, and therefore
the administrative judge’s reliance on Gajdos was not appropriate. PFR File,
Tab 1 at 26. We do not agree. The agency’s guidance to deciding officials gave
them the authority to make decisions regarding individual furlough actions
consistent with the organizational and categorical exceptions previously
established by the Secretary of Defense. AR, Part 1, Tab 2, ¶¶ 5-13, Tab 6 at 38
of 135. Any major variations from this guidance required coordination in
advance with the Assistant Secretary of the Navy, Manpower and Reserve
Affairs. AR, Part 1, Tab 8 at 50 of 135.
¶9 The appellant believes that the administrative judge erred by finding
significant the fact that the deciding official used “Command Letterhead” to
request an organization-wide exception to the furlough. PFR File, Tab 1
at 14-15. However, the initial decision does not mention the use of letterhead.
See ID at 10-12. The initial decision correctly finds that the deciding official
testified that he requested the organization-wide exception for all 1,000 NMC
civilian employees, not just the 15 employees for whom he was designated as the
deciding official. Id.; PFR File, Tab 2 at 73-75. He went on to testify that none
3
In addition to the predeprivation opportunity to respond to the deciding official, the
appellant also has had the opportunity to seek post-deprivation relief before the Board.
See Gajdos, 121 M.S.P.R. 361, ¶ 25.
6
of the employees for whom he had been designated as the deciding official
individually met the criteria for the categorical exceptions. PFR File, Tab 2
at 76-77.
The agency did not commit harmful procedural error in processing the appellant’s
furlough.
¶10 Although we have found no constitutional violation, we must still consider
whether the agency committed harmful procedural error. See Stone v. Federal
Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999) (stating
that, in addition to the protections afforded by the Constitution, public employees
are also 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). An agency is required to follow its own
rules in effecting an adverse action, regardless of whether those rules go beyond
the requirements of government-wide statutes and regulations. Canary v. U.S.
Postal Service, 119 M.S.P.R. 310, ¶ 11 (2013).
¶11 In this case, the agency followed its procedures. The appellant argues that,
by denying the deciding official the authority to apply one of the categorical
exceptions to his entire organization, the agency failed to follow its own
procedures. PFR File, Tab 1 at 26. However, the agency’s procedures delegated
to deciding officials the authority to review individual employee replies and
apply the approved categorical exceptions on a case-by-case basis. AR, Part 1,
Tab 6 at 36-39 of 135. The deciding official testified that when he reviewed the
individual replies to the proposed furlough none of the fifteen employees for
whom he was designated as the deciding official met the criteria for an exception.
PFR File, Tab 2 at 74-78. We find no support in the record for the proposition
that the agency’s procedures for implementing the furlough granted individual
deciding officials the independent authority to make organization-wide
exceptions to the furlough. See AR, Part 1, Tab 6 at 36-39 of 135.
7
The agency did not treat the appellant differently than similarly situated
employees.
¶12 A furlough of 30 days or less is reviewable by the Board under the
“efficiency of the service” standard of 5 U.S.C. § 7513(a). Chandler v.
Department of the Treasury, 120 M.S.P.R. 163, ¶ 5 (2013). The Board has found
that an agency satisfies the efficiency of the service standard 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.” 4 Id., ¶ 8 (quoting Clark v.
Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984)). A fair and even
manner means that the agency applied the furlough action uniformly and
consistently. Id. An agency is not required to apply a furlough in such a way as
to satisfy the Board’s sense of equity. Id. An agency is required to treat similar
employees similarly and to justify any deviations with legitimate management
reasons. Id.
¶13 The appellant argues that the administrative judge erred by relying on
reduction-in-force (RIF) principles in determining who was similarly situated for
the purposes of the furlough. PFR File, Tab 1 at 19-20. He argues that the
administrative judge should have identified similarly situated employees utilizing
the principles applied in conducting a disparate penalty analysis. Id. Furloughs
are unique among adverse actions because by definition they are taken for
nondisciplinary reasons and generally are used to address work or funding
shortages or other matters that are not personal to the affected employee.
Chandler, 120 M.S.P.R. 163, ¶ 8. We find that the administrative judge’s
reliance on RIF principles in determining which employees were similarly
situated to the appellant was appropriate. See id., ¶ 7; see also Weathers v.
4
The appellant does not contest that the furlough was a reasonable management
solution to the financial restrictions placed on it. PFR File, Tab 1 at 5.
8
Department of the Navy, 121 M.S.P.R. 417, ¶¶ 6, 8-9 (2014) (the Board is guided
by RIF principles in making the determination of who is similarly situated in a
furlough).
¶14 “Competitive area” principles may be used to determine who is similarly
situated in a furlough. See Weathers, 121 M.S.P.R. 417, ¶ 8. Generally, a
competitive area must be defined solely in terms of the agency’s organizational
units and geographical location. 5 C.F.R. § 351.402(b). The minimum
competitive area is a subdivision of the agency under separate administration
within the local commuting area. Id.
¶15 The appellant argues that the agency did not consistently impose the
furlough among similarly situated employees because employees classified in his
same series (GS-0905) who worked at the Norfolk Naval Shipyard in Portsmouth,
Virginia, performing similar work were not furloughed. PFR File, Tab 1 at 5, 13,
21; CAF, Tab 5 at 10. The appellant argues that relying on RIF principles to
determine who is similarly situated in a furlough is a “litmus paper UIC and
Supervisor approach.” 5 PFR File, Tab 1 at 20. The appellant’s argument is not
persuasive. The shipyard employees were not in the appellant’s competitive area
because they work in a different subdivision of the agency under separate
administration. See generally CAF File, Tab 3 at 32-35 (NMC was treated as an
independent subdivision of the agency for administration of the furlough). Thus,
the appellant was not similarly situated to the attorneys assigned to the Norfolk
Naval Shipyard for the purposes of this furlough, even if they performed similar
duties.
5
UIC is an abbreviation for Unit Identification Code, which the agency might use to
determine an employee’s source of funding.
9
The agency fairly and evenly applied its exception for employees assigned to
Navy shipyards and properly determined that exception did not apply to the
appellant.
¶16 Employees assigned to Navy shipyards were subject to an explicit
exception from the furlough by the Department of Defense “because it would be
particularly difficult to make up delays in maintenance work on nuclear vessels
and those vessels are critical to mission success.” AR, Part 1, Tab 12 at 110 of
135. The appellant argues that the administrative judge erred in accepting the
agency’s assessment that all of the employees assigned to the Norfolk Naval
Shipyard should have been excepted from the furlough irrespective of their duties
and responsibilities, but not also accepting his deciding official’s similar
assessment of NMC. PFR File, Tab 1 at 15-16. The appellant’s argument fails to
acknowledge that the exception applied to the shipyard employees was
established by the Department of Defense’s guidance and was not the assessment
of an individual deciding official regarding his own organization. In determining
whether the agency structured a furlough in a fair and even manner, the Board
will not scrutinize an agency’s decision in such a way that second-guesses the
agency’s assessment of its mission requirements and priorities. Department of
Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013), aff’d sub nom. Berlin v.
Department of Labor, 772 F.3d 890 (Fed. Cir. 2014). Rather, the Board will
consider issues relating to uniform and consistent application of the furlough,
including whether the agency used the furlough to target employees for personal
reasons or attempted to exempt certain employees from the furlough without a
legitimate management reason. Chandler, 120 M.S.P.R. 163, ¶ 9. There is no
indication in the record that the appellant or other NMC employees were targeted
for personal reasons or that the agency exempted any employees without a
legitimate management reason. The Board will not second-guess the agency’s
decision to except shipyard employees, but not NMC employees, based on its
assessment of mission requirements and the appellant has not argued that he
10
qualified for the exception for shipyard employees. Thus, we find no reason to
disturb the administrative judge’s conclusion that the agency fairly and evenly
applied the furlough in the appellant’s situation.
The appellant has not identified any adjudicatory error that would warrant a
different outcome.
¶17 The appellant alleges a number of what he has identified as “procedural
irregularities” during the hearing process. PFR File, Tab 1 at 22-25. He claims
that the administrative judge rescheduled the hearing to accommodate the agency,
and he notes that the record does not reflect “what had to be ex parte
proceedings” in which this request was made or that the appellants were prepared
to proceed on the date that the hearing was originally scheduled. Id. at 22-23.
Not all ex parte communications are prohibited. 5 C.F.R. § 1201.101(a). Only
those ex parte communications that involve the merits of the case or violate rules
requiring submissions to be in writing are prohibited. Id. Here, even if ex parte
communications occurred between the agency and the administrative judge, they
concerned the scheduling of the hearing, not the merits of the appeal, and thus
were not prohibited. See Stec v. Office of Personnel Management, 22 M.S.P.R.
213, 215 (1984). The appellant also appears to be arguing that the administrative
judge should not have rescheduled the hearing to accommodate the agency’s
failure to prepare. We find no abuse of discretion in the administrative judge’s
decision to reschedule the hearing when the primary witness, the deciding
official, was unavailable on the original hearing date.
¶18 The appellant notes that the administrative judge allowed the agency’s
representative to take breaks during the hearing to talk to a technical
representative, but would not allow a diabetic appellant to take a break to eat
when she started to feel ill. PFR File, Tab 1 at 24 n.14. Determining when and
how many breaks to take during a hearing is a matter left to the broad discretion
afforded to administrative judges to regulate the course of the hearing. 5 C.F.R.
11
§ 1201.41(b)(6). We find no abuse of discretion in the manner in which the
administrative judge scheduled breaks during the hearing.
¶19 The appellant also notes that a portion of the hearing is missing from the
Board’s audio recording of the hearing contained in the official record. PFR File,
Tab 1 at 16-17. The appellant is correct. Compare CAF, Tab 10, Hearing
Compact Disc at 1:30:55-1:32:00, with PFR File, Tab 2 at 107-09. The Board has
held that when the record of the hearing contains material omissions of evidence
necessary for the adjudication of an appeal, the evidence must be taken again.
Walker v. Office of Personnel Management, 52 M.S.P.R. 101, 104 (1991).
However, the testimony missing from the audio recording of the hearing in this
matter was captured in the written transcript. Moreover, this testimony is not
material to the adjudication of this appeal. The deciding official testified that,
during a fast surge in Afghanistan and what the appellant has described as an
“emergent Ordnance Evolution” called Odyssey Dawn, he would have needed all
fifteen of the employees assigned to NMC headquarters who were furloughed.
PFR File, Tab 2 at 108. However, there is no evidence in the record that either of
these events was ongoing at the time that the decision to furlough the appellant
was made. On the contrary, the deciding official testified that all fifteen
employees were furloughed without incident. Id. at 106.
¶20 The appellant believes that the administrative judge’s summary of the
hearing testimony is inaccurate. PFR File, Tab 1 at 23. The appellant believes
that the administrative judge made erroneous findings of fact by disregarding the
testimony of the deciding official whenever it did not comport with the agency’s
position. Id. at 24. Having thoroughly reviewed the record, we find that the
administrative judge’s summary of the hearing testimony is accurate.
¶21 The appellant states that the administrative judge erred by not timely ruling
on discovery motions. Id. at 7-9, 24. An administrative judge has broad
discretion in ruling on discovery matters, and absent an abuse of discretion the
Board will not find reversible error in such rulings. Vaughn v. Department of the
12
Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). The administrative judge ruled on the
outstanding discovery motions at the beginning of the hearing. PFR File, Tab 2
at 22-26. The appellant was granted additional discovery and permitted to
supplement the record with any relevant evidence he obtained. Id. We find no
abuse of discretion in the timing of this discovery ruling.
¶22 We have reviewed all of the appellant’s arguments on review and find that
they do not provide any reason to disturb the administrative judge’s findings.
ORDER
¶23 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)).
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.
13
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 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.