UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NAVFAC - DEBERRY II, DOCKET NUMBER
Appellants, 1 DC-0752-15-0690-I-1
v.
DEPARTMENT OF THE NAVY, DATE: January 13, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Jeffrey A. Collis, Norfolk, Virginia, for the appellants.
Joseph J. Smith, Virginia Beach, Virginia, for Appellant Jeffrey A. Collis.
Jacquelyn Wright, Esquire, Port Hueneme, California, 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. Generally, we grant petitions such as this one only
1
The appellants that are included in this consolidation are set forth in Appendix A of
this order.
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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
when: the initial decision contains erroneous findings of material fact; the initial
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 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 petitioners’ 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. As set forth in ¶ 5 below, we
MODIFY the administrative judge’s analysis of whether the agency took the
furloughs for such cause as to promote the efficiency of the service. Except as
expressly MODIFIED by this final order, we AFFIRM the initial decision.
¶2 The appellants, employees of the Naval Facilities Engineering Command,
MidAtlantic, filed Board appeals challenging their furloughs for up to 88 hours
arising out of the March 1, 2013 Sequestration Order issued by the President
requiring across-the-board reductions in Federal spending pursuant to the
Balanced Budget and Emergency Deficit Control Act, as amended. Department
of the Navy Administrative Record for FY 2013 Furlough Appeals, Part 1,
Tab 18, available at http://www.mspb.gov/furloughappeals/navy2013.htm; see,
e.g., Collis v. Department of the Navy, MSPB Docket No. DC-0752-13-2344-I-1,
Initial Appeal File (Collis IAF), Tab 1 at 2-3. Their appeals were consolidated
with those of numerous other appellants under the caption NAVFAC DeBerry II v.
Department of the Navy, MSPB Docket No. DC-0752-15-0690-I-1, Consolidation
Appeal File (CAF), Tab 1.
¶3 Although the appellants requested a hearing, they were unable to produce
either of their witnesses and, because the agency itself proffered no witnesses, the
3
administrative judge decided the appeal on the written record. CAF, Tab 14,
Tab 17, Initial Decision (ID) at 1. She affirmed the furloughs, finding that they
were for such cause as to promote the efficiency of the service, the agency
afforded the appellants due process, and the appellants failed to establish their
affirmative defense of harmful procedural error. ID at 6-8.
¶4 Appellant Jeffrey A. Collis has filed a petition for review on behalf of
himself and the 106 other appellants that he is representing in this appeal,
renewing his argument that the furlough decisions were the product of harmful
procedural error. Petition for Review (PFR) File, Tab 2 at 3. 3 The agency has
filed a response. PFR File, Tab 4.
¶5 On review, the appellants have not challenged the administrative judge’s
finding that the furloughs were taken for such cause as to promote the efficiency
of the service. ID at 6. However, the administrative judge’s efficiency of the
service analysis does not follow the framework set forth in Dye v. Department of
the Army, 121 M.S.P.R. 142, ¶ 9 (2014), and therefore must be modified.
Specifically, an agency may furlough an employee for 30 days or less “only for
such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7512(5),
7513(a). The concept of “cause” in the context of a furlough appeal encompasses
whether the appellant met the criteria established by the agency for being subject
to, and not excepted from, the furlough. Dye, 121 M.S.P.R. 142, ¶ 9. The agency
has the burden of proof on this issue. Id., ¶¶ 9-10; see Tinker v. Department of
Air Force, 121 M.S.P.R. 385, ¶¶ 14-15 (2014). Thus, to prove that a furlough
was taken for such cause as to promote the efficiency of the service, the agency
must show not only that the furlough in general was a reasonable management
solution to work shortage or financial restrictions and that the agency applied its
3
Mr. Collis designated another appellant, Joseph J. Smith, as his representative.
Collis IAF, Tab 1 at 3. Mr. Smith, in turn, designated Mr. Collis as his representative.
Smith v. Department of the Navy, MSPB Docket No. DC-0752-13-2441-I-1, Initial
Appeal File, Tab 2. Both Mr. Collis and Mr. Smith are signatories to the petition for
review. PFR File, Tab 2 at 3.
4
determination as to which employees to furlough in a fair and even manner,
Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013), but also
that the appellant met the criteria established by the agency for being subject to,
and not excepted from, the furlough, Dye, 121 M.S.P.R. 142, ¶¶ 9-10. For the
reasons explained in the initial decision, we agree with the administrative judge
that the furloughs were a reasonable management solution to the financial
restrictions brought on by the sequester and that the agency applied the furloughs
in a fair and even manner. ID at 6. We also find that the parties stipulated that
the appellants met the criteria established by the agency for being subject to, and
not excepted from, the furlough. Id.; CAF, Tab 12 at 6, Tab 13 at 4. Accordingly
we affirm the administrative judge’s analysis as modified, finding that the agency
took the furlough actions for cause as set forth in Dye and that they promoted the
efficiency of the service as set forth in Chandler.
¶6 Turning to the petition for review itself, the appellants argue that the
furlough actions are contrary to a June 2001 memorandum of agreement between
the agency’s Public Works Center in Norfolk, Virginia, and the Tidewater
Virginia Federal Employees Metal Trades Council. PFR File, Tab 2 at 3;
Collis IAF, Tab 22 at 4-6. According to the memorandum of agreement, the
agency is responsible for providing emergency support after business hours.
Collis IAF, Tab 22 at 4. To that end, it has instituted an on-call program, under
which covered employees, on a volunteer or rotating basis, are required to be on
call to report to the job site within 2 hours in the event of an after-hours
emergency. Id. at 4-5. The memorandum sets forth the requirements for
employees in on-call status and the terms and conditions concerning
implementation of the program. Id. at 5-6. The appellants argue that, had the
agency followed the memorandum of agreement, it would not have furloughed
them, for if there were an emergency requiring on-call employees to report to
duty during a furlough day, the employees would have been prevented from
coming to work. PFR File, Tab 2 at 3.
5
¶7 We disagree. To prove that the agency committed harmful procedural error
under 5 U.S.C. § 7701(c)(2)(A), the appellants must show both that the agency
committed procedural error and that the error was harmful. Parker v. Defense
Logistics Agency, 1 M.S.P.R. 505, 513 (1980). As the administrative judge
explained, the agency committed no procedural error because nothing in the
memorandum of agreement requires the agency to place employees in an on-call
status. ID at 7. It merely governs the terms and conditions of the on-call
program. Therefore, even if the agency suspended the on-call program to
implement the furlough, as the appellants alleged below, Collis IAF, Tab 8 at 4,
Tab 26 at 6, this did not constitute a violation of the memorandum of agreement.
There is simply nothing in the memorandum that requires the agency to keep its
employees in an on-call status or that prevents it from suspending or
discontinuing the on-call program in favor of having contractor employees
assume those duties, as the appellants alleged that the agency did below.
Collis IAF, Tab 8 at 4, Tab 26 at 6. We find that, because the appellants have not
established that the agency violated the memorandum of agreement, they have not
proven their harmful error defense. See Hylick v. Department of the Air Force,
85 M.S.P.R. 145, ¶ 13 (2000).
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 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
6
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 U.S. 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 U.S. 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 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: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
7
APPENDIX A
NAVFAC - DeBerry II
DC-0752-15-0690-I-1
Alan C. Johnson DC-0752-13-2827-I-1
Allan W. Wright DC-0752-13-2804-I-1
Anthony Williams DC-0752-13-2138-I-1
Brian D. Calvert DC-0752-13-2433-I-1
Brian G. Jerlin DC-0752-13-4348-I-1
Bruce W. Harrod DC-0752-13-2820-I-1
Bryan D. Vanlandingham DC-0752-13-2668-I-1
Calvin R. Spence DC-0752-13-2872-I-1
Caroll W. Foster DC-0752-13-2202-I-1
Carroll L. Howard DC-0752-13-2817-I-1
Cary D. Jackson DC-0752-13-2788-I-1
Charles K. Fetty DC-0752-13-2422-I-1
Charles W. Ackerman DC-0752-13-2413-I-1
Christopher L. Spelce DC-0752-13-2384-I-1
Clair G. Swegan DC-0752-13-2147-I-1
Clement M. Tuttle DC-0752-13-2389-I-1
Cornelius J. Drake DC-0752-14-0076-I-1
Damon Showers DC-0752-13-2985-I-1
Dan B. Norton DC-0752-13-2417-I-1
Darius R. Jordan DC-0752-13-2683-I-1
David L. Murphy DC-0752-13-2420-I-1
David L. Pettaway DC-0752-13-3020-I-1
David M. Horner DC-0752-13-2812-I-1
David P. McLendon DC-0752-13-2662-I-1
8
Dennis A. Young DC-0752-13-2808-I-1
Derrick J. Sampson DC-0752-13-2838-I-1
Donna M. Harden DC-0752-13-4286-I-1
Douglas W. Humphrey DC-0752-13-4373-I-1
Edward E. Kemper DC-0752-13-2663-I-1
Elliot L. Carlton DC-0752-13-2421-I-1
Eric A. Geba DC-0752-13-2398-I-1
Eyvine Harris DC-0752-13-2888-I-1
Foluke M. Alvarez DC-0752-13-4735-I-1
Frederick E. Conley DC-0752-13-3018-I-1
Gary W. Sawyer DC-0752-13-2860-I-1
George V. Dimas DC-0752-13-2904-I-1
Gregory L. Taylor DC-0752-13-2146-I-1
Harry D. Roberson DC-0752-13-2681-I-1
James A. Haith DC-0752-13-2449-I-1
James M. Morris DC-0752-13-2211-I-1
Jason M. Brader DC-0752-13-2145-I-1
Jason M. Treitel DC-0752-13-4784-I-1
Jay Harmor DC-0752-13-2144-I-1
Jeffery R. Rash DC-0752-13-2341-I-1
Jeffrey A. Collis DC-0752-13-2344-I-1
John A. Hugo DC-0752-13-2200-I-1
John E. Lancer DC-0752-13-2826-I-1
John F. Turner DC-0752-13-3009-I-1
John G. Manall DC-0752-13-2834-I-1
Joseph F. Smith DC-0752-13-2435-I-1
Joseph J. Smith DC-0752-13-2441-I-1
Joseph W. Talarico DC-0752-13-2431-I-1
Joshua D. Dozier DC-0752-13-2841-I-1
9
Justin A. Nyhaug DC-0752-13-4861-I-1
Justin T. Brooks DC-0752-13-2148-I-1
Kenneth H. Wolfe DC-0752-13-2388-I-1
Kevin R. Haselbush DC-0752-13-2450-I-1
Kiona N. Boyd DC-0752-13-2833-I-1
LaVar M. Bates DC-0752-13-4841-I-1
Larry D. Brown DC-0752-13-2801-I-1
Larry N. Joseph DC-0752-13-2443-I-1
Leslie E. Beliles DC-0752-13-2412-I-1
Mark E. Stankavich DC-0752-13-2829-I-1
Mark N. Ahrens DC-0752-13-2338-I-1
Mary Jane Atherton DC-0752-13-4845-I-1
Matthew L. Wade DC-0752-13-2407-I-1
Matthew O'Connor DC-0752-13-2356-I-1
Michael G. South DC-0752-13-2830-I-1
Michael Matern DC-0752-13-2348-I-1
Nathaniel Pringle DC-0752-13-2419-I-1
Orville R. Theel DC-0752-13-4807-I-1
Paul E. Vaughan DC-0752-13-2437-I-1
Paul H. Eley DC-0752-13-2438-I-1
Perry W. Babb DC-0752-13-4798-I-1
Ramdeo Ramlatchan DC-0752-13-2894-I-1
Randy B. Ives DC-0752-13-2353-I-1
Ray W. Walker DC-0752-13-2805-I-1
Raymond L. Wine DC-0752-13-2828-I-1
Rebecca J. Luce DC-0752-13-2386-I-1
Robert A. Flora DC-0752-13-2141-I-1
Robert E. Lawless DC-0752-13-2822-I-1
Robert G. Tucker DC-0752-13-2436-I-1
10
Robert J. Kneip DC-0752-13-2418-I-1
Robert L. Savant DC-0752-13-2839-I-1
Robert N. Collins DC-0752-13-2177-I-1
Robert P. D'Adamo DC-0752-13-2334-I-1
Robert S. Rawls DC-0752-13-2980-I-1
Roger D. Papenfuhs DC-0752-13-2399-I-1
Ronald A. Smith DC-0752-13-2410-I-1
Ronald P. Dick DC-0752-13-2140-I-1
Ronald Ricks DC-0752-13-2865-I-1
Sanny J. Cogliandro DC-0752-13-2181-I-1
Shante Gilliehan DC-0752-13-2355-I-1
Stephen C. Coston DC-0752-13-6832-I-1
Terry L. Seymour DC-0752-13-4409-I-1
Thomas H. Richard DC-0752-13-2423-I-1
Thomas W. Parker DC-0752-13-3014-I-1
Todd G. Cologgi DC-0752-13-2924-I-1
Torel L. Turner DC-0752-13-3017-I-1
Troy A. Jordan DC-0752-13-2440-I-1
Wallace O. Hendrix DC-0752-13-2831-I-1
Wayne T. Cheatham DC-0752-13-2408-I-1
William E. Clark DC-0752-13-2844-I-1
William J. Langlois DC-0752-13-6834-I-1
William S. Lanagan DC-0752-13-4772-I-1
Willie E. Young DC-0752-13-2387-I-1
Willie L. McCutchen DC-0752-13-2898-I-1