UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
NANETTE OPPENHEIMER, 1 DOCKET NUMBER
Appellant, DC-0752-13-3901-I-1
v.
DEPARTMENT OF THE NAVY, DATE: March 10, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Nanette Oppenheimer, Potomac, Maryland, pro se.
Henry Karp, Washington Navy Yard, 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 furlough action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Naval
Sea Systems Command, Washington Navy Yard-1 v. Department of the Navy, MSPB
Docket No. DC-0752-14-0247-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 chief
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 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
except as expressly MODIFIED by this Final Order to supplement the chief
administrative judge’s discussion of the appellant’s individual arguments.
¶2 The agency issued a decision notice furloughing the appellant for no more
than 11 workdays (later reduced to 6 workdays) from her GS-15 Attorney Advisor
position. Initial Appeal File, Tab 3 at 18-19. The furlough was based on serious
budgetary challenges facing the Department of Defense (DOD), including the
sequester that began on March 1, 2013. The appellant filed an appeal, which the
chief administrative judge consolidated with the appeals of similarly situated
employees. MSPB Docket No. DC-0752-14-0247-I-1, Consolidation Appeal File
(CAF), Tab 2 at 2. After holding the requested hearing, the chief administrative
judge affirmed the furlough actions. CAF, Tab 19, Initial Decision (ID) at 2, 26.
¶3 On review, the appellant asserts that the Secretary of Defense lacked the
authority to direct the Department of the Navy (the Navy) to implement a
furlough because the Navy retains its independent authority regarding personnel
matters. Petition for Review (PFR) File, Tab 1 at 9. The Navy is separately
organized under the Secretary of the Navy but it operates under the express
authority, direction, and control of the Secretary of Defense. Yee v. Department
of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014). Moreover, an agency satisfies the
3
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. Chandler v. Department of the Treasury, 120 M.S.P.R. 163,
¶ 8 (2013); Yee, 121 M.S.P.R. 686, ¶ 13. Based on the record before us, we see
no reason to disturb the chief administrative judge’s finding that the agency’s
furlough was a reasonable management solution to the financial restrictions
placed on it by DOD. ID at 17-20.
¶4 The appellant also contends that the Secretary of Defense did not have the
authority to combine similar accounts from different military departments and
consider them in the aggregate to determine whether there was a budget shortfall.
Similarly, she alleges that the agency failed to show that there was an actual
budget shortfall, and failed to show that the cost savings achieved from the
furlough were used to offset shortfalls elsewhere. PFR File, Tab 1 at 4-8. The
agency is not required to prove that the furlough actually resulted in a cost
savings; it is enough for the agency to show, as it did here, that the furlough
action was a reasonable management solution when the action was taken.
Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶ 18, aff’d, 802 F.3d
1321 (Fed. Cir. 2015). Moreover, we will not look behind the agency’s method
of determining that it had a funding shortfall. Even if the agency arrived at the
conclusion that a shortfall existed after aggregating accounts from separate
military departments, we have found that it was reasonable for the agency to
consider its budget situation holistically. Yee, 121 M.S.P.R. 686, ¶ 14. Further,
although the appellant argues that Yee was wrongly decided, the U.S. Court of
Appeals for the Federal Circuit found Yee “instructive,” 3 and precedential
decisions of the Federal Circuit constitute precedent that is binding on the Board.
3
National Federation of Federal Employees, Local 1442 v. Department of the Army,
and National Federation of Federal Employees, Local 2109 v. Watervliet Arsenal,
810 F.3d 1272, 1279 (Fed. Cir. 2015).
4
Vores v. Department of the Army, 109 M.S.P.R. 191, ¶ 10 (2008), aff’d,
324 F. App’x 883 (Fed. Cir. 2009); Fairall v. Veterans
Administration, 33 M.S.P.R. 33, 39, aff’d, 844 F.2d 775 (Fed. Cir. 1987).
¶5 The appellant further asserts that the agency committed harmful error by not
following appropriate procedures in arriving at the decision to address its budget
shortfalls via a furlough. PFR File, Tab 1 at 9-10. The Board’s authority to
adjudicate harmful error claims derives from 5 U.S.C. § 7701(c)(2)(A), and only
extends to consideration of whether the agency afforded an individual employee
the procedural protections guaranteed under 5 U.S.C. § 7513, binding
Government-wide regulations, binding internal agency regulations, or a collective
bargaining agreement. See, e.g., Simmons v. Department of the
Air Force, 99 M.S.P.R. 28, ¶ 34 (2005) (applying a harmful error analysis to an
alleged violation of a procedure provided by a collective bargaining agreement);
Tom v. Department of the Interior, 97 M.S.P.R. 395, ¶ 48 (2004) (applying a
harmful error analysis to an alleged violation of a procedure provided by internal
agency regulations); Stephen v. Department of the Air Force, 47 M.S.P.R. 672,
685 (1991) (explaining that harmful error analysis applies to the failure to afford
statutory or regulatory procedures, or procedures provided under a collective
bargaining agreement).
¶6 The appellant does not assert that the agency deprived her of any of these
rights. Instead, she suggests that the Board should examine the means by which
the agency decided to impose a furlough on its general civilian workforce. The
Board has held, however, that its analysis of the efficiency of the service standard
in furlough cases does not encompass agency spending decisions or agency
decisions allocating furlough days among employees who are not similarly
situated. Chandler, 120 M.S.P.R. 163, ¶ 9. Such matters belong to the judgment
of agency managers, who are in the best position to decide what allocation of
funding will best allow the agency to accomplish its mission. Id. The Board will
not scrutinize an agency’s decision to determine whether the agency structured a
5
furlough in a manner 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). Thus, we find that the appellant’s implicit allegation that the agency
should have undertaken a different decision-making process is beyond the
Board’s scope of review.
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:
U.S. 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 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.
6
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.