UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
IN RE AFRL GROUP 5 HEARING, DOCKET NUMBER
Appellant, NY-0752-14-0096-I-1 1
v.
DEPARTMENT OF THE AIR FORCE, DATE: November 16, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Ralph L. Kohler, Jr., Oneida, New York, for the appellants.
Aaron Roberts, Joint Base Andrews, Maryland, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellants have filed a petition for review of the initial decision, which
sustained their furloughs from employment pursuant to sequestration. 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
The appellants who are included in this consolidation are set forth in Appendix A.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. See
Title 5 of the Code of Federal Regulations, section 1201.115 (5 C.F.R.
§ 1201.115). After fully considering the filings in this appeal, we conclude that
the petitioners have not established any basis under section 1201.115 for granting
the 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 appellants serve in various positions with the agency at the Air Force
Research Laboratory in Rome, New York. The agency proposed to furlough each
of the appellants for no more than 11 days due to the budget shortfall resulting
from the President’s March 1, 2013 sequester order. See Consolidation Appeal
File (CAF), Tab 5 at 60-61. After giving the appellants an opportunity to respond
to the proposed furlough, the agency issued decision letters imposing an 11-day
furlough, which it subsequently reduced to no more than 6 days. Id. at 56-57
(decision letter), 49-50 (Secretary of Defense’s memorandum reducing the
number of furlough days).
¶3 The appellants filed timely appeals of their furloughs, which the
administrative judge consolidated. CAF, Tab 1. Following a hearing, the
administrative judge issued an initial decision sustaining the agency’s furlough
action. CAF, Tab 15, Initial Decision (ID). In her initial decision, the
administrative judge found that the agency established its need to furlough the
appellants as a result of sequestration and that the furlough promoted the
efficiency of the service. ID at 9. The administrative judge further rejected the
appellants’ argument that the furlough was unreasonable because none of the
3
savings that resulted from their furloughs was used to offset the agency’s
operations and maintenance (O&M) budget shortfall. ID at 9-10 (citing Yee v.
Department of the Navy, 121 M.S.P.R. 686 (2014)). Lastly, the administrative
judge concluded that the agency imposed the furlough in a fair and even manner
despite the fact that employees who performed similar work were exempt from
the furlough because they were paid from National Intelligence Program (NIP)
funds, a category of funding not subject to sequestration. ID at 10.
¶4 The appellants have filed a petition for review of the initial decision.
Petition for Review (PFR) File, Tab 1. On review, the appellants primarily renew
their argument that any specific cost savings that resulted from their furloughs
was not used to offset the agency’s O&M budget shortfall because the agency
lacked Congressional authority to transfer such savings. PFR File, Tab 1 at 5-7
(citing 31 U.S.C. § 1301). In support of this argument, the appellants maintain
that the administrative judge denied them the opportunity to present evidence on
this issue when she precluded them from questioning an agency witness about the
savings that resulted from the furloughs, and whether such savings were
transferred to the O&M budget. Id. at 8. The agency has filed a response in
opposition to the petition for review, and the appellants have filed a reply. 3 PFR
File, Tabs 9, 15.
3
The record reflects that after filing their petition for review 1 day late, on July 21,
2015, the appellants subsequently filed a motion requesting that the Board accept their
petition for review as timely. PFR File, Tabs 1, 9. In light of the circumstances of this
appeal, and in the interests of addressing the merits of the appellants’ claims on review,
we grant the appellants’ motion and accept the petition for review as timely filed. On
July 23, 2015, the agency filed a response to the petition for review and simultaneously
requested that the Board accept the response as timely. PFR File, Tab 11. Because the
Board issued an amended acknowledgment letter on July 15, 2015, indicating that the
agency’s deadline to file a response was July 24, 2015, and because the agency filed its
response on July 23, 2015, we find that the agency’s response was timely filed. PFR
File, Tabs 6, 11. Finally, we note that the appellants’ reply to the agency’s response
was timely filed, as the Office of the Clerk of the Board previously issued an order
granting the appellants’ request for an extension of time and they filed their reply by
4
¶5 The Board has found that an agency meets its burden of proving that a
furlough promotes the efficiency of the service 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. In re Tinker AFSC/DP v. Department of
the Air Force, 121 M.S.P.R. 385, ¶ 14 (2014). A “fair and even manner” means
that the agency applied the adverse action furlough uniformly and consistently.
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Proving
that the furlough was imposed in such a manner, however, does not mean that the
agency must satisfy the Board’s sense of equity. Id. Rather, the agency must
show that it treated similar employees similarly, and it must justify any deviations
with legitimate management reasons. Id.
¶6 The Board, moreover, has held that the efficiency of the service standard for
a furlough action must be judged from the viewpoint of the Department of
Defense (DOD), and not from the individual military departments under its
authority. See Yee, 121 M.S.P.R. 686, ¶¶ 13-14. In Yee, the Board sustained the
furlough action upon finding that it was reasonable for the DOD to consider its
budget situation holistically, rather than considering each military department’s
situation individually. Id. Additionally, in Einboden v. Department of the
Navy, 122 M.S.P.R. 302, ¶ 18 (2015), the Board explained that an agency is not
required to show that any funds saved from an employee’s furlough were actually
used for any other purpose; instead, the Board found that, to meet the efficiency
of the service standard, it is enough for the agency to show that the furlough
action was a reasonable management solution at the time the action was taken.
The U.S. Court of Appeals for the Federal Circuit recently issued a precedential
decision affirming Einboden, finding that an agency is not “required to show
actual re-programming of the funds saved by [an employee’s] furlough.” See
the new deadline set forth by the Office of the Clerk of the Board. PFR File,
Tabs 13-15.
5
Einboden v. Department of the Navy, No. 2015-3117, 2015 WL 5730370, at *3
(Fed. Cir. Oct. 1, 2015).
¶7 Applying these standards, we agree with the administrative judge that the
agency established cause for taking the furlough action based upon the March 1,
2013 sequester order and the resulting budget shortfall, and that the agency’s
furlough promoted the efficiency of the service. ID at 9-10. Under both
Einboden and Yee, the DOD was entitled to consider its budget situation
holistically in determining whether it needed to furlough civilian employees, and
the agency was not required to prove that the specific funds saved from the
appellants’ furloughs were transferred into the O&M budget. See
Einboden, 122 M.S.P.R. 302, ¶¶ 15-16; Yee, 121 M.S.P.R. 686, ¶ 14. The
appellants’ argument that the agency failed to show that the savings from their
furloughs was used to supplement the O&M budget thus does not present a basis
for overturning the initial decision or reversing the furlough. See
Einboden, 122 M.S.P.R. 302, ¶ 18; see also Einboden, No. 2015-3117, 2015
WL 5730370, at *3 (explaining that an agency does not need to “show actual
re-programming of the funds saved by the furlough”).
¶8 We further find no error with the administrative judge’s decision to exclude
testimony concerning the transfer of funds to the O&M budget. PFR File, Tab 1
at 8. Administrative judges have broad discretion to regulate the proceedings
before them, including the authority to rule on discovery motions and to exclude
witness testimony that is irrelevant, immaterial, or redundant. See Defense
Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 16 (2015);
Gregory v. Federal Communications Commission, 79 M.S.P.R. 563, ¶ 15 (1998).
Because the agency was not required to prove that any funds saved from the
furlough were used for another DOD purpose, see Einboden, 122 M.S.P.R. 302,
¶ 18, the administrative judge acted within her discretion in limiting the scope of
testimony during the hearing.
6
¶9 We also find no merit to the appellants’ argument that the furlough was not
imposed in a fair and even manner because similar employees, who were paid
from a different funding source, were not furloughed. ID at 10. In Defense
Intelligence Agency v. Department of Defense, the Board addressed whether
appellants who might be better aligned with employees who were performing
NIP-related functions, but who were paid with non-NIP funds, should have been
exempted from the furlough, see 122 M.S.P.R. 444, ¶¶ 8, 11-12. In rejecting the
appellants’ challenge to their furloughs in that case, the Board recognized that
agencies have the authority to exempt certain employees from the furlough,
provided that the agency has not targeted employees for personal reasons or
exempted others without a legitimate management reason. Id., ¶ 11; see Lopez v.
Department of the Navy, 121 M.S.P.R. 647, ¶ 15 (2014). We concur with the
administrative judge that the different source of funding for the exempted
employees provides a legitimate management reason for their differing treatment,
and the appellants have presented no argument on review that they were targeted
by the agency for personal reasons in connection with the furlough. See
Lopez, 121 M.S.P.R. 647, ¶ 18 (finding no evidence that the criteria used to select
employees for a furlough was chosen to target or exempt specific employees).
¶10 Based on the foregoing, we agree with the administrative judge that the
agency established cause to furlough the appellants. The administrative judge’s
initial decision is accordingly affirmed, and the appellants’ petition for review
is denied.
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:
7
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the
United States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for an appeal to
the 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
8
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.
9
APPENDIX A
IN RE AFRL GROUP 5 HEARING
NY-0752-14-0096-I-1
Albert G. Frantz NY-0752-13-0851-I-1
Alex F. Sisti NY-0752-13-0816-I-1
Angela M. Lipe NY-0752-13-0869-I-1
Dale W. Richards NY-0752-13-0718-I-1
David A. Canestrare NY-0752-13-0616-I-1
Gennady R. Staskevich NY-0752-13-0714-I-1
Jaclyn A. Karam NY-0752-13-0743-I-1
James F. Reilly NY-0752-13-0793-I-1
James P. Hanna NY-0752-13-0880-I-1
Jerry L. Dussault NY-0752-13-0821-I-1
JoAnn C. Soriano NY-0752-13-0757-I-1
John G. Parker NY-0752-13-0779-I-1
Kyle R. Holbritter NY-0752-13-0755-I-1
Michael F. Seifert NY-0752-13-0884-I-1
Ralph L. Kohler NY-0752-13-0802-I-1
Randall J. McIntyre NY-0752-13-0781-I-1
Rebecca J. Bussjager NY-0752-13-0853-I-1
Robert S. McHale NY-0752-13-0783-I-1
Stanley J. Wenndt NY-0752-13-0761-I-1
William D. Lewis NY-0752-13-0716-I-1