United States Court of Appeals
for the Federal Circuit
______________________
VICTORIA CALHOUN,
Petitioner
v.
DEPARTMENT OF THE ARMY,
Respondent
______________________
2016-2220
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-13-5389-I-1.
______________________
Decided: January 12, 2017
______________________
VICTORIA CALHOUN, Severn, MD, pro se.
NATHANAEL YALE, Commercial Litigation Branch, Civ-
il Division, United States Department of Justice, Wash-
ington, DC, for respondent. Also represented by BENJAMIN
C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDD-
MILLER.
______________________
Before NEWMAN, CHEN, and STOLL, Circuit Judges.
NEWMAN, Circuit Judge.
2 CALHOUN v. ARMY
Victoria Calhoun appeals the decision of the Merit
Systems Protection Board (“Board”) sustaining the action
of the Department of the Army imposing a six day fur-
lough in July and August of 2013 in response to seques-
tration legislation. 1 We discern no reversible error in the
Board’s decision.
BACKGROUND
The Budget Control Act of 2011 established spending
limits for federal agencies and required automatic spend-
ing cuts (“sequestration”) if certain deficit reduction
legislation was not enacted. Pub. L. No. 112-25, §§ 101-
103, 125 Stat. 240, 241-46 (2011). The American Taxpay-
er Relief Act of 2012, Pub. L. No. 112–240, § 901, 126
Stat. 2313, 2370 (§ 901(e)), required the President to issue
a sequestration order on March 1, 2013, near the middle
of fiscal year 2013. 126 Stat. at 2370. On that date,
President Obama issued a sequestration order requiring
reductions in spending from most federal budget accounts
for fiscal year 2013. 78 Fed.Reg. 14,633.
As a result, the 2013 budget of the Department of De-
fense (DOD) was cut by approximately 37 billion dollars,
to be absorbed in the remaining six months of the fiscal
year. The DOD took a number of steps to address the
budgetary shortfall, including reprogramming funds,
reducing facility maintenance, and eliminating some
military training exercises. In a May 2013 memorandum,
the Secretary of Defense explained that furloughs of
civilian workers would be imposed to address the “historic
shortfall in our budget” resulting from sequester.
Ms. Calhoun is a non-excepted civilian Doctrine De-
fense Specialist employed by the United States Army
1 Calhoun v. Dep’t of Army, No. PH-0752-13-5389-I-
1, 2016 WL 1566603 (M.S.P.B. Apr. 19, 2016) (Final
Order).
CALHOUN v. ARMY 3
Cyber Command (ACC), within the Department of the
Army. The Commander of the ACC, Lt. Gen. Rhett A.
Hernandez, was designated as the deciding official for the
furloughs of ACC employees. Lt. Gen. Hernandez dele-
gated that authority to his Chief of Staff, Col. Scott E.
Sanborn. On May 28, 2013, Ms. Calhoun was issued a
Notice of Proposed Furlough, including notice of her
opportunity to reply. Ms. Calhoun exercised her oppor-
tunity to reply via an oral presentation to James L. Hill-
born, an official designated by Col. Sanborn to hear oral
replies. Ms. Calhoun also submitted a written reply on
June 5, 2013. Her replies included budget proposals she
asserted would prevent furloughs.
On July 1, 2013, Ms. Calhoun received her Notice of
Decision to Furlough. The Notice stated: “[y]our written
and oral replies received in response to [the] notice have
been reviewed and carefully considered. I have deter-
mined that the reasons for the proposed furlough, as
stated in the notice of proposal, remain valid.” S.A. 89.
In email responses to inquiries by Ms. Calhoun, Col.
Sanborn stated on July 14, 2013 that “I read through the
packet that you included,” and on July 30, 2013 that
“[t]he furlough guidance we received is clear and unfortu-
nately I cannot exempt you for the reasons you have
highlighted . . . .” S.A. 92–95. Ms. Calhoun was ultimate-
ly furloughed for six nonconsecutive days in July and
August 2013.
Ms. Calhoun filed a notice of appeal with the Board,
alleging the furlough did not promote the efficiency of the
service. Ms. Calhoun also alleged that the agency com-
mitted harmful error by failing to consider her budget
proposals. She also stated that Lt. Gen. Hernandez
improperly delegated his authority as deciding official to
Col. Sanborn. The administrative judge (AJ) found Lt.
Gen. Hernandez’s delegation to Col. Sanborn did not
violate DOD policy. Calhoun v. Dep’t of the Army, No.
PH-0752-13-5389-I-1, 2015 WL 4712185 (M.S.P.B. July
4 CALHOUN v. ARMY
30, 2015). The AJ also found that Col. Sanborn appropri-
ately considered Ms. Calhoun’s reply, and that evaluation
of the merits of her budget proposals was beyond the
scope of his review as deciding official. The AJ affirmed
the furlough decisions as a reasonable management
solution to the shortage of funds caused by sequestration
and that the furloughs promoted the efficiency of the
service. Id.
On appeal to the full Board, Ms. Calhoun renewed her
argument that the agency erred in delegating the respon-
sibilities of the deciding official to Col. Sanborn. Ms.
Calhoun also asserted a due process violation because the
deciding official did not receive a written summary of her
oral reply prior to issuing the decision letter. The Board
affirmed the AJ’s decision, holding that the delegation to
Col. Sanborn did not violate DOD policy or introduce
harmful procedural error. Final Order at ¶9. The Board
also found no due process violation because Col. Sanborn
received and considered Ms. Calhoun’s written reply and
because the summary of her oral reply would not have
altered the furlough decision. Final Order at ¶10.
Ms. Calhoun appeals.
DISCUSSION
We review the Board’s decision to ascertain whether it
was (1) arbitrary, capricious, an abuse of discretion or
otherwise not in accordance with law; (2) obtained with-
out following the procedures required by law; or (3) un-
supported by substantial evidence. 5 U.S.C. § 7703(c).
By statute, an agency may furlough an employee “be-
cause of lack of work or funds or other nondisciplinary
reasons.” 5 U.S.C. § 7511(a)(5). Furloughs of thirty days
or less are deemed adverse employment actions, 5 C.F.R.
§ 752.401(a)(5), and may only be taken “for such cause as
will promote the efficiency of the service.” 5 U.S.C. §
7513(a). An agency satisfies the “efficiency of the service”
CALHOUN v. ARMY 5
standard by demonstrating that the furlough was “a
reasonable management solution to the financial re-
strictions placed on the agency and that the agency de-
termine[d] which employees to furlough in a fair and even
manner.” Einboden v. Dep’t of Navy, 802 F.3d 1321, 1325
(Fed. Cir. 2015). An employee faced with an adverse
action must be provided written notice that must “stat[e]
the specific reasons for the proposed [adverse] action,” an
opportunity to answer and to provide “documentary
evidence in support of the answer”, and a “written deci-
sion.” 5 U.S.C. § 7513(b).
The Board found that Ms. Calhoun was furloughed in
response to sequester legislation and that the furlough
was a “reasonable management solution” to the financial
restrictions faced by the agency. Although Ms. Calhoun
states that the “procedural and legislative changes to fix
the budgetary IT systems” she proposed would have
averted furloughs, “[i]t is not our role to second guess
agency decisions.” Einboden, 802 F.3d at 1325; see also
Chandler v. Dep’t of the Treasury, No. AT-0752-13-0583-I-
1, 2013 WL 5273920, at *4 (M.S.P.B. Sept. 18, 2013)
(“Such matters belong to the judgment of agency manag-
ers, who are in the best position to decide what allocation
of funding will best allow the agency to accomplish its
mission.”). The agency’s decision has not been shown to
be unreasonable and the Board did not err in applying the
“efficiency of the service” standard to exclude the second-
guessing of agency management and spending decisions.
Ms. Calhoun also states that the Board erred in find-
ing that the deciding official, Col. Sanborn, reviewed the
presentation accompanying her written reply prior to
issuing the Notice of Decision. The Board determined,
based on Col. Sanborn’s sworn declaration, that Col.
Sanborn did review Ms. Calhoun’s proposal. Substantial
evidence supports the Board’s finding, for there was no
contrary information.
6 CALHOUN v. ARMY
Ms. Calhoun also states that the Army improperly
delegated authority to Col. Sanborn in violation of inter-
nal DOD furlough policies. She states that the policies
prohibited “further delegations” and that Col. Sanborn
was not at the identified minimum rank. The policy
memorandum Ms. Calhoun identifies states:
Relative to the review and decision on individual
employee requests for exception, per guidance is-
sued via the Principal Deputy Assistant Secretary
of Defense, Readiness and Force Management,
memorandum, dated March 13, 2013, activities
should designate the Deciding Official. The des-
ignated Deciding Official will be no lower than a
local Installation Commander, senior civilian or
equivalent who would be in the best position to
determine the fair and equitable application of the
furlough. Deciding Official responsibilities may
not be further delegated.
S.A. 37. The Board found that the memorandum contem-
plated that Deciding Official authority could be delegated
several times, but to an official “no lower than a local
Installation Commander, senior civilian or equivalent.”
We discern no error in the Board’s interpretation. Sub-
stantial evidence also supports the Board’s determination
that Col. Sanborn was no lower than a “local Installation
Commander.”
Ms. Calhoun states that she was deprived of a “mean-
ingful reply” because Col. Sanborn lacked the authority to
review and act on her budget proposals. 2 The Board
found that Col. Sanborn’s authority as a deciding official
2 The record reflects that Ms. Calhoun’s proposals
were ultimately considered on the merits by the ACC on
August 27, 2013. The ACC recommended no action on the
proposal. S.A. 111.
CALHOUN v. ARMY 7
was limited to determining whether Ms. Calhoun was
within one of the DOD prescribed categories of exempted
employees and whether a reduction in her furlough hours
was necessary to the agency’s mission. While a deciding
official must possess authority to take or recommend
action, due process does not require “unfettered discretion
to take any action he or she believes is appropriate” or
require “consider[ation of] alternatives that are prohibit-
ed, impracticable, or outside of management’s purview.”
Rodgers v. Dep’t of the Navy, 2015 M.S.P.B. 45 ¶6 (2015).
Here the authority of the deciding official was commensu-
rate with the nature of the furlough decisions.
Ms. Calhoun states that her Board panel was improp-
erly constituted because it was composed of only two
members, and that this contravened 5 C.F.R. § 1200.3(d)
and 5 U.S.C. § 1201. Contrary to Ms. Calhoun’s assertion,
the regulations contemplate that a Board may be com-
posed of two members. See 5 C.F.R. 1200.3(e) (“This
section applies only when at least two Board members are
in office.”). Two-member Board panels may issue final
decisions when both members are in agreement. 5 C.F.R.
§ 1200.3(b)–(d). No procedural error or due process viola-
tion has been shown in the implementation and review of
the furlough.
Ms. Calhoun makes several other arguments on ap-
peal, including that the implementation of the furloughs
violated the non-delegation doctrine and separation of
powers principles; that the furloughs amount to a bill of
attainder; that the oral reply official was not properly
designated; and that her written reply was a protected
whistleblowing disclosure. No merit accompanies any of
these arguments.
CONCLUSION
We discern no reversible error in the Board’s rulings
that the furlough of Ms. Calhoun was in accordance with
8 CALHOUN v. ARMY
law and implemented without procedural error or due
process violation.
AFFIRMED
No costs.