UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
TRACY A. ALLRED, 1 DOCKET NUMBER
Appellant, DC-0752-13-3062-I-1
v.
DEPARTMENT OF THE ARMY, DATE: June 11, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Tracy A. Allred, APO, APO/FPO Europe, pro se.
Bradley E. Eayrs, Fort Belvoir, Virginia, 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 furlough action. Generally, we grant petitions such as this one only
when: the initial decision contains erroneous findings of material fact; the initial
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Medical
Command I v. Department of the Army, MSPB Docket No. DC-0752-14-0162-I-1.
2
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
decision is based on an erroneous interpretation of statute or regulation or the
erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. We MODIFY
the initial decision to address the appellant’s claim of harmful procedural error
and to supplement the administrative judge’s due process analysis regarding the
deciding official’s decisional independence. Except as expressly modified by this
Final Order, we AFFIRM the initial decision.
BACKGROUND
¶2 The appellant filed a Board appeal, challenging the agency’s decision to
furlough her for 6 days, and she requested a hearing. Initial Appeal File (IAF),
Tab 1; see IAF, Tab 5 at 6-9 (agency time cards), 10-11 (furlough Standard Form
50), 12-14 (notice of decision to furlough), 19-21 (notice of proposed furlough).
The appellant was informed that her appeal was consolidated with the appeals of
similarly situated employees. Medical Command I v. Department of the Army,
MSPB Docket No. DC-0752-14-0162-I-1, Consolidated Appeal File (CAF), Tab
1. The appellant alleged that the agency’s action constituted harmful procedural
error and a violation of due process. See, e.g., IAF, Tabs 4, 6, 10. The appellant
subsequently waived her right to a hearing. See IAF, Tab 9.
¶3 The administrative judge issued an initial decision in which she affirmed
the furlough actions. CAF, Tab 14, Initial Decision (ID). The administrative
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judge found that the Department of Defense (DOD) faced a lack of funds and that
the furloughs were a reasonable management solution to this problem. See ID at
4-5. She further found that the furloughs promoted the efficiency of the service
and that the agency determined which attorneys to furlough in a fair and even
manner. See ID at 5. The administrative judge acknowledged the appellants’
assertions that the deciding official did not have authority to furlough them
because the authority was retained at a higher level and that the deciding official
did not have the authority to reach a decision different than the action stated in
the proposal notice. See ID at 3. The administrative judge analyzed these
assertions as a violation of due process, and she concluded that: (1) the
appellants received meaningful due process; (2) the delegated deciding official
had authority to furlough the appellants; (3) guidance from the Secretary of
Defense “did not impinge on the ability of the deciding official in this case to
exercise independent judgment regarding the sustaining of the proposed adverse
action”; and (4) the fact that the deciding official did not except the appellants
from the furlough does not mean that he did not have the authority to do so. ID at
5-7.
¶4 The appellant has filed a petition for review. Petition for Review (PFR)
File, Tab 1.
DISCUSSION OF ARGUMENTS ON REVIEW
¶5 On review, the appellant contends that the administrative judge:
(1) wrongly concluded that the deciding official, a Brigadier General, had the
authority to furlough her because the delegation to him had been withdrawn and
not re-delegated in a signed writing; (2) mischaracterized her due process
argument and failed to address her assertion that the Brigadier General lacked the
requisite independence, neutrality, and impartiality required of a deciding
official; (3) ignored the parties’ stipulation that a shortage of funds did not cause
her furlough; and (4) wrongly concluded that the funding levels of the Europe
4
Regional Medical Command (ERMC), the appellant’s organization, were not
relevant to the furlough decision. PFR File, Tab 1 at 4-7.
¶6 Regarding the appellant’s assertion that the deciding official did not have
the authority to furlough her, the appellant raised this assertion as a claim of
harmful procedural error below, see CAF, Tab 5, but the administrative judge did
not discuss it as such in the initial decision. We therefore modify the initial
decision to analyze this issue as a claim of harmful procedural error, but we
conclude that the appellant did not prove this affirmative defense.
¶7 The relevant facts are largely undisputed. The Assistant Secretary of the
Army delegated deciding official authority to a Lieutenant General who then
delegated deciding official authority to the Brigadier General. See Department of
the Army Administrative Record for FY 2013 Furlough Appeals (Army File), Tab
9, available at http://www.mspb.gov/furloughappeals/army2013.htm; CAF, Tab
3, Subtab 4j; see also CAF, Tab 13 at 11 (declaration). Subsequently, on June 5,
2013, the Lieutenant General issued a memorandum in which she attempted to
exempt eleven attorneys, including the appellant, from the furlough. See IAF,
Tab 10 at 9. 3 In this memorandum, the Lieutenant General stated that she was
“retaining [her] authority as the Deciding Official for these specific personnel,”
and she explained that she was “exempting these employees in [her] role as
Deciding Official . . . under authority given [to her] by the Secretary of the
Army.” Id. The Lieutenant General subsequently stated, in a declaration made
under penalty of perjury, that she was informed that, even as the deciding official,
she was not authorized to exempt these attorneys until after providing notice and
considering their responses. See CAF, Tab 13 at 11-12. The Lieutenant General
therefore directed her Chief of Staff to rescind the June 5, 2013 memorandum.
See id. The Lieutenant General stated in her declaration that after she rescinded
3
Because the appellant’s petition for review only discusses the June 5, 2013
memorandum, we do not discuss the Lieutenant General’s earlier attempt to exempt
these attorneys. See, e.g., CAF, Tab 13 at 11.
5
the June 5, 2013 memorandum, she “decided to allow [the] commanders that [she]
had designated as deciding officials to take whatever actions they felt appropriate
in deciding whether to exempt these attorneys from the furlough” and that she
“took no further actions regarding the possible exemption of [the] attorneys.” Id.
at 12. On July 1, 2013, the Brigadier General informed the appellant that she
would be furloughed. See IAF, Tab 5 at 12-14. There is no evidence in the
record that the Lieutenant General subsequently played any role in the agency’s
decision to furlough the appellant.
¶8 The record reflects that “[a]ny designation as a Deciding Official and
re-delegation of the requisite authorities will take effect only when it is in writing
and signed by the designating official.” Army File, Tab 9 at 65. The parties
stipulated that the Lieutenant General’s June 5, 2013 memorandum was never
rescinded in writing. See IAF, Tab 10 at 11. We understand the appellant’s claim
of error to be that the Lieutenant General failed to re-delegate in writing deciding
official authority to the Brigadier General after she issued the June 5, 2013
memorandum and before he issued the decision on the appellant’s furlough. See,
e.g., id. at 6. Based on our review of the record, the appellant has not persuaded
us that any such error occurred.
¶9 Only if the delegated deciding official authority to the Brigadier General
had been withdrawn would there be a need for a written re-delegation of this
authority. There is no evidence, however, that the Lieutenant General intended
the June 5, 2013 memorandum to constitute withdrawal of any deciding official
authority that she previously had delegated to the Brigadier General. The
memorandum itself does not state that any delegated deciding official authority
was being withdrawn. See id. at 9. Moreover, the Lieutenant General stated in
her declaration that “[i]t was not [her] intent to withdraw any authority that [she]
had delegated to any of [her] subordinate commanders” in the June 5, 2013
memorandum, and she explained that if she wanted to withdraw that authority,
she “would have specifically stated that [she] was withdrawing the authority from
6
the individual commanders.” CAF, Tab 13 at 12. She further declared that
“[e]ach commander who was designated as a deciding official . . . continued to be
authorized to act as a deciding official throughout the administrative furlough
process.” Id. The appellant offers no persuasive evidence to challenge the
Lieutenant General’s statements in this regard, and we conclude that the June 5,
2013 memorandum did not constitute a withdrawal of the deciding official
authority that had been delegated to the Brigadier General. In the absence of any
withdrawal of the delegated deciding official authority to the Brigadier General,
there was no need for a written re-delegation of this authority, and, thus, there
was no error.
¶10 Even if we assumed for the purposes of our analysis that the June 5, 2013
memorandum constituted a withdrawal of the deciding official authority that had
been delegated to the Brigadier General, and that the re-delegation of such
authority was never made in writing, contrary to agency procedures, the appellant
must still prove that the agency’s error was harmful. An agency error is harmful
only where the record shows that the procedural error was likely to have caused
the agency to reach a conclusion different from the one it would have reached in
the absence or cure of the error. Stephen v. Department of the Air
Force, 47 M.S.P.R. 672, 681, 685 (1991). The Board may not assume that an
employee has been harmed by a procedural error in the adverse action process;
rather, the appellant bears the burden of proving harm. Pumphrey v. Department
of Defense, 122 M.S.P.R. 186, ¶ 10 (2015).
¶11 Although the nature of the harm asserted by the appellant is unclear, she
appears to content on review that she would have been exempted from the
furlough were it not for the agency’s error in failing to re-delegate in writing
deciding official authority to the Brigadier General. See PFR File, Tab 1 at 5
(arguing that “the only person with authority to furlough [the] Appellant was [the
Lieutenant General], and she exercised that authority to exempt [the] Appellant
7
from the furlough”). The appellant has not proven that she was harmed by this
alleged agency error.
¶12 The appellant’s apparent contention that she would have been exempted
absent the agency’s error is at best speculative, and the Board has held that such
speculation does not constitute harm. See, e.g., Defense Intelligence Agency v.
Department of Defense, 2015 MSPB 35, ¶¶ 13-15 (concluding that, even if the
agency’s instruction required that the proposing and deciding officials be in the
appellant’s supervisory chain, the appellant’s speculation that the attorneys in his
supervisory chain “may well have worked to exempt” him from the furlough had
they been made aware of certain information did not meet his burden of proving
that the agency’s failure to assign the appropriate proposing and deciding
officials was likely to have caused the agency to reach a different decision on the
proposed furlough action); Pumphrey, 122 M.S.P.R. 186, ¶¶ 9-11 (even if the
agency should have granted the appellant’s requests for official time and an
extension of time to reply to the proposal notice, the appellant’s speculation was
insufficient to meet his burden of proving harm).
¶13 Regarding the appellant’s assertion that the Brigadier General did not have
the requisite decisional independence, we modify the initial decision to
supplement the administrative judge’s due process analysis, but we conclude that
the appellant did not prove that the agency violated her due process rights.
¶14 The Board considered and rejected a similar argument regarding decisional
independence in Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶¶ 4, 6, 9
(2014), which was issued after the initial decision in this matter was issued. In
Kelly, the Board noted that the deciding official provided a declaration made
under penalty of perjury, which: (1) explained that he carefully reviewed each
individual’s submission, the agency’s documents relied upon in issuing the
proposal notice, any supporting documents submitted by the appellants, and the
reply official’s recommendation; (2) stated that he “made an individual
determination if the proposed action stated any basis for an exemption and issued
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a decision specifying the basis for [his] determination”; and (3) asserted that he
had “authority to individually exempt an employee if they [sic] met an
exemption.” Id., ¶ 9. Based on this evidence, the Board concluded that the
agency’s procedures satisfied the requirements of due process. Id.
¶15 The record in this matter contains a similar declaration from the Brigadier
General, which stated, in relevant part:
I considered any and all submissions made to me in response to the
proposed notice of furlough. I had the full authority to implement,
mitigate, or rescind the furlough for each. I never felt any pressure
from my higher headquarters . . . or leaders to furlough employees.
I exercised sole authority over the decisions to furlough.
...
I believed that I had full latitude to take action and that the matter
was directed to the Regional Medical Center . . . level for
consideration and action. Had I thought it was appropriate, I had the
option to implement, mitigate, rescind[, ]and later recall personnel
from furlough. . . .[T]he ERMC Command Judge Advocate[] did seek
exemptions on his subordinate’s behalf; however, I did not agree
with his recommendation, which was within my authority as the
Deciding Official.
CAF, Tab 9 at 19-20. Based on this evidence, we find that the agency’s
procedures satisfied due process, see Kelly, 121 M.S.P.R. 408, ¶ 9, and the
appellant has not proven her assertion of a due process violation.
¶16 Finally, we understand the appellant’s arguments regarding ERMC funding
to challenge the administrative judge’s conclusion that the agency had a lack of
funds and that the furloughs met the efficiency of the service. See, e.g., PFR File,
Tab 1 at 6 (“If no lack of funding was foreseen [at ERMC] this necessarily is also
evidence that higher units and commands, to include the [DOD], also did not have
a lack of funds necessitating the appellant’s furlough.”). The appellant correctly
asserts on review that the administrative judge did not mention in the initial
decision that the parties stipulated that the ERMC “did not experience or foresee
a deficit or lack of funds necessitating” the appellant’s furlough. PFR File, Tab 1
at 6; see ID; see also IAF, Tab 10 at 11 (stipulation). However, an administrative
9
judge’s failure to mention all of the evidence of record does not mean that she did
not consider it in reaching her decision. Marques v. Department of Health &
Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
1985) (Table).
¶17 Even if we consider the parties’ stipulation and the appellant’s arguments
regarding ERMC funding on review, a different outcome is not warranted. In Yee
v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014), the Board held that,
even though the appellants alleged that there was adequate funding in the Navy to
avoid the furloughs, it was reasonable for DOD to consider its budget situation
holistically, rather than isolating each individual military department’s situation
in making furlough decisions. Similarly, here, even if the ERMC had adequate
funding to avoid the appellant’s furlough, it was reasonable for DOD to consider
its budget situation holistically, rather than isolating the situation of each
individual Army organization or component. See id.; see also Einboden v.
Department of the Navy, 122 M.S.P.R. 302, ¶ 15 (2015). The appellant has not
provided any evidence that the administrative judge erred when she concluded
that DOD faced a lack of funds or that the appellant’s furlough was a reasonable
management solution to this problem. We therefore affirm the administrative
judge’s finding that the furloughs promoted the efficiency of the service.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. 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
10
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 your appeal to
the 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.
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FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.