AR Fort Leavenworth KS v. Department of the Army ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
AR FORT LEAVENWORTH, KS, DOCKET NUMBERS
AR3 FORT LEAVENWORTH, KS, DE-0752-13-1962-I-1 (AR)
AR4 FORT LEAVENWORTH, KS, DE-0752-14-0204-I-1 (AR3)
AR5 FORT LEAVENWORTH, KS, 1 DE-0752-14-0205-I-1 (AR4)
Appellants, DE-0752-14-0206-I-1 (AR5)
v. DATE: JUNE 18, 2015
DEPARTMENT OF THE ARMY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Janice L. Jackson, Fort Leavenworth, Kansas, for the appellants.
Anne E. Hinkebein, Esquire, Fort Leavenworth, Kansas, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
1
The appellants included in this consolidation are set forth in Appendices A-D to this
order.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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
FINAL ORDER
¶1 The appellants have filed petitions for review of the initial decisions, which
affirmed their furloughs. 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 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
these appeals, and based on the following points and authorities, we conclude that
the petitioners have not established any basis under section 1201.115 for granting
their petitions for review. Therefore, we DENY the petitions for review and
AFFIRM the initial decisions, which are now the Board’s final
decisions. 5 C.F.R. § 1201.113(b).
¶2 Citing serious budgetary challenges, including budget cuts required by the
Budget Control Act of 2011, as amended by the American Taxpayer Relief Act of
2012, otherwise known as sequestration, the agency furloughed many of its
employees. See, e.g., MSPB Docket No. DE-0752-13-0981-I-1, Initial Appeal
File (0981 IAF), Tab 2 at 7-12. A number of those employees filed Board appeals
challenging their furloughs, which totaled 6 work days per employee in July and
August 2013. See, e.g., 0981 IAF, Tab 1; see also, e.g., MSPB Docket No.
DE-0752-13-1962-I-1, Consolidated Appeal File (1962 CAF), Tab 23 at 4-5.
Below, the administrative judge grouped the appeals into four consolidations.
See 1962 CAF, Tab 19 at 8-19. He held one hearing, e.g., 1962 CAF, Tab 57,
Hearing Recording, and issued four decisions, each affirming the furloughs,
1962 CAF, Tab 58, Initial Decision (1962 ID); MSPB Docket No. DE-0752-14-
3
0204-I-1, Consolidated Appeal File (0204 CAF), Tab 38, Initial Decision; MSPB
Docket No. DE-0752-14-0205-I-1, Consolidated Appeal File (0205 CAF), Tab 41,
Initial Decision; MSPB Docket No. DE-0752-14-0206-I-1, Consolidated Appeal
File (0206 CAF), Tab 35, Initial Decision. 3
¶3 The appellants have filed petitions for review in each of the four
consolidations. E.g., MSPB Docket No. DE-0752-13-1962-I-1, Petition for
Review (1962 PFR) File, Tab 1. The agency has filed corresponding responses.
E.g., 1962 PFR File, Tab 3.
¶4 As a preliminary matter, we note that while the four consolidations below
involved some particularized arguments, the petitions for review reassert
arguments that were consistently raised in all of the consolidations. See, e.g.,
1962 PFR File, Tab 1. Therefore, we have further consolidated the four
consolidations to address those similar arguments in this one decision.
See 5 C.F.R. § 1201.36(a)(1), (b)(1)-(2) (consolidation is appropriate if doing so
would expedite processing and not adversely affect the interests of the parties);
see also Prouty v. General Services Administration, 122 M.S.P.R. 117, ¶¶ 1, 4
(2014) (consolidating cases on review that were adjudicated separately below).
Accordingly, this final order applies to all of the appellants who were the subject
of the four consolidations below and who filed a petition for review.
3
The group identified as AR includes appellants from the agency’s Train ing and
Doctrine Command and Mission and Installation Contracting Command. 1962 CAF,
Tab 19 at 17, Tab 23 at 4-5. The group identified as AR3 included appellants from the
agency’s Installation Management Command. 1962 CAF, Tab 19 at 13-14; see
0204 CAF, Tab 4 at 4-9. The group identified as AR4 included appellants from the
agency’s Medical Command. 1962 CAF, Tab 19 at 15-16; see 0205 CAF, Tab 4 at 4-7.
The group identified as AR5 included appellants from the agency’s Army Corrections
Command, Army Sustainment Command, Dental Command, and Network Enterprise
Center. 1962 CAF, Tab 19 at 18; see 0206 CAF, Tab 4 at 4-5.
4
The administrative judge properly found that the furloughs promoted the
efficiency of the service.
¶5 The appellants argue that the furloughs did not promote the efficiency of the
service and were, therefore, improper. E.g., 1962 PFR File, Tab 1 at 9-12. We
find no merit to these arguments.
¶6 Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an
employee for 30 days or less “only for such cause as will promote the efficiency
of the service.” Accordingly, an agency must prove that cause existed for the
furlough and that the furlough promotes the efficiency of the service. 4 Dye v.
Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the
efficiency of service standard in a furlough appeal 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).
¶7 Below, the administrative judge found that the agency faced significant
financial restrictions, the furloughs were a reasonable management solution, and
the agency applied the furloughs in a fair and even manner. E.g., 1962 ID at 5.
The appellants have not presented any argument disputing the agency’s financial
restrictions, generally. Instead, they contend that the agency erred by
effectuating the furloughs based upon “global memorandum and supporting
material” from the Department of Defense (DoD), and by failing to perform an
“individualized analysis to determine if their furlough was necessary to promote
the efficiency of the service.” E.g., 1962 PFR File, Tab 1 at 9-12 (issues “a” and
“c”).
4
The appellants have not presented any substantive argument regarding the
administrative judge’s findings regarding cause for the furlough. See, e.g., 1962 ID
at 5-6. As a result, we will not revisit th is issue on review.
5
¶8 To the extent that the appellants’ argument can be construed as disputing
the agency’s use of DoD guidance, generally, we are aware of no statute,
regulation, or case law that requires the agency to prove its case before the Board
without relying upon evidence from the Secretary of Defense or DoD officials.
Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶ 15 (2014). The
Department of the Army, though separately administered by the Secretary of the
Army, is under the Secretary of Defense’s direction, authority, and control. Id.
¶9 To the extent that the appellants’ argument can be construed as attempting
to draw a distinction between the budgetary situations of their individual
components and DoD’s budgetary situation, their arguments remain unavailing.
For purposes of furloughs and the efficiency of the service standard, it is
reasonable for DoD to consider its budget situation holistically, rather than
isolating each individual military department’s situation. Yee v. Department of
the Navy, 121 M.S.P.R. 686, ¶ 14 (2014). Accordingly, the appellants’ arguments
fail and we discern no other basis for disturbing the administrative judge’s
conclusion that the agency met its burden of proof. See Broughton v. Department
of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding no reason to
disturb the administrative judge’s findings where she considered the evidence as a
whole, drew appropriate inferences, and made reasoned conclusions).
The appellants failed to establish that the agency committed a due process
violation or harmful error in the administration of the furloughs.
¶10 The appellants seem to suggest that the agency may have violated their right
to due process or otherwise committed harmful procedural error. See, e.g.,
1962 PFR File, Tab 1 at 4-11. We disagree.
¶11 Due process requires, at a minimum, that an employee being deprived of his
property interest be given the opportunity to be heard at a meaningful time and in
a meaningful manner. See Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(recognizing that due process rights may vary depending on the circumstances);
see also Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 18 (2014)
6
(discussing due process in the context of a furlough action). In addition, the
Board will not sustain an agency decision if the employee proves harmful error in
the agency’s application of its procedures in arriving at that decision. 5 U.S.C.
§ 7701(c)(2)(A); Ward v. U.S. Postal Service, 634 F.3d 1274, 1281 (Fed. Cir.
2011).
¶12 Here, the appellants do not dispute that they were provided an opportunity
to respond to their proposed furloughs prior to the deciding officials issuing
furlough decisions. See, e.g., 0981 IAF, Tab 2 at 10-11; 1962 CAF, Tab 33.
Instead, the appellants suggest that they may have lacked the materials necessary
to make a meaningful response to those proposals. E.g., 1962 PFR File, Tab 1
at 10. We find no merit to the argument.
¶13 The appellants reassert that, while testifying below, one of the agency’s
deciding officials, K.B., “could not specify with specificity whether
employees . . . [were] supplied with a copy of the information explaining why he
decided to furlough employees.” E.g., 1962 CAF, Tab 55 at 8; 1962 PFR File,
Tab 1 at 10. However, we are unable to discern any relevance to this purported
ambiguity.
¶14 The proposal and decision letters provided the appellants with the bases for
the furlough actions. See, e.g., 0981 IAF, Tab 2 at 7-12; see also, e.g.,
1962 CAF, Tab 23 at 4-5. Among other things, the proposal letters indicated that
that the furloughs were necessary to accommodate the budgetary challenges
stemming from sequestration; provided employees with detailed information
about exceptions to the furloughs; and permitted 7 calendar days to review
supporting material and submit a response. E.g., 0981 IAF, Tab 2 at 10-12
(proposal letter example). The appellants do not dispute that they received these
proposal letters. See, e.g., 1962 CAF, Tab 33. In addition, they have not
presented any evidence or argument that they requested and were denied
additional information, individually.
7
¶15 Although the appellants do not argue that they sought additional
information, individually, they reassert that the agency erred by failing to provide
additional materials to their union. E.g., 1962 PFR File, Tab 1 at 10; 1962 CAF,
Tab 27 at 8. The administrative judge addressed this issue below, finding no
impropriety, e.g., 1962 ID at 12-14, and we agree.
¶16 Among other things, the administrative judge concluded that the union was
not acting as a personal representative to any appellant during the proposal, reply,
and decision-making process for the furloughs. E.g., 1962 ID at 13-14. In
arguing to the contrary, the petition for review only cites to a March 15, 2013
memorandum of agreement (MOA). 1962 PFR File, Tab 1 at 10. However,
nothing in that MOA establishes the union as any appellant’s designated
representative concerning the July and August furlough actions. See, e.g.,
1962 CAF, Tab 27 at 13-19. Further, the MOA did not require the agency to
provide copies of materials related to individual furloughs to the union. Id.
Instead, the MOA simply demonstrates that the union engaged in collective
bargaining in anticipation of those furloughs. See id.
¶17 Even if the union had been the appellants’ designated representative for the
actual furlough actions, rather than just for the events leading up to the furloughs,
the appellants have failed to identify any improperly withheld documentation.
The petitions for review claim that the agency was unwilling to supply “all of the
appropriate information,” but failed to identify what that appropriate information
was. See, e.g., 1962 PFR File, Tab 1 at 11. Below, the appellants pointed to two
union requests for information regarding what cost savings the agency sought in
lieu of the furlough. E.g., 1962 CAF, Tab 27 at 8. However, it is undisputed that
the union submitted the first request before May 2013, when the agency proposed
any appellant’s furlough, and submitted the second after the agency issued
decisions in June 2013, for each appellant’s furlough. See, e.g., 1962 CAF,
Tab 23 at 4-5, Tab 27 at 8. Moreover, the appellants have failed to explain the
materiality of those requests for information about alternative cost savings. See
8
Chandler, 120 M.S.P.R. 163, ¶¶ 9, 15-16 (the Board’s efficiency of the service
determination does not encompass agency spending decisions per se, including
spending on personnel matters; 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). Accordingly, we find no due
process violation or other error as it relates to the appellants having the
opportunity to make a meaningful response.
¶18 The appellants’ final argument is an assertion that the agency violated the
March 15, 2013 MOA. E.g., 1962 PFR File, Tab 1 at 4-9; see generally
1962 CAF, Tab 27 at 13-19. Specifically, the appellants contend that the agency
violated a provision that established a single agency official, K.B., for approving
exceptions to the furloughs. E.g., 1962 PFR File, Tab 1 at 5-6. The
administrative judge found no merit to the argument, e.g., 1962 ID at 7-10, and
we agree.
¶19 The appellants’ argument pertaining to the MOA is one of harmful error. 5
An appellant bears the burden of proving, by preponderant evidence, that the
agency committed harmful error in reaching its decision. 5 C.F.R.
§ 1201.56(b)(2)(i)(C), (c)(1). A harmful error is an error by the agency in the
application of its procedures that is 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. 5 C.F.R. § 1201.4(r).
¶20 Here, even if we were to accept the appellants’ contention that the agency
violated the MOA by having several officials, rather than one designated official,
5
In their petitions, the appellants presented this argument in terms of the agency’s
burden of proof, rather than a harmful error affirmative defense. E.g., 1962, PFR File,
Tab 1 at 6-9. The appellants argue that the purported MOA violation proved that the
agency did not apply the furlough in a fair and even manner. Id. However, in a
furlough appeal, an agency’s burden is to prove that it treated similar employees
similarly and justify any deviations with legitimate management reasons. Chandler,
120 M.S.P.R. 163, ¶ 8. Accordingly, we have considered the appellants’ argument as a
harmful error affirmative defense.
9
determine whether any furlough exceptions should apply, they have failed to
prove any resulting harm. See Ronso v. Department of the Navy, 122 M.S.P.R.
391, ¶¶ 14-16 (2015) (finding no harmful error where the deciding official
delegated the task of receiving oral replies, rather than receiving them
personally). The appellants presented no argument or evidence that the agency
was likely to have reached a different conclusion as to their furloughs in the
absence of the purported violation of the MOA. See Pumphrey v. Department of
Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an
employee has been harmed by a procedural error in the adverse action process).
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:
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.
10
Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Pet itioners 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
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.
11
APPENDIX A
AR Fort Leavenworth KS
DE-0752-13-1962-I-1
Alan E. Moore DE-0752-13-0947-I-1
Benjamin J. Szemere DE-0752-13-0981-I-1
Bobbie M. Taijeron DE-0752-13-0984-I-1
Bradford T. Jackson DE-0752-13-0917-I-1
Charles C. Jackson DE-0752-13-0918-I-1
Debra M. Dropkin DE-0752-14-0155-I-1
Ida J. Giffin DE-0752-13-0900-I-1
Joyce J. Taylor DE-0752-14-0160-I-1
Keith L. Starks DE-0752-13-0979-I-1
Kim D. Wright DE-0752-13-1001-I-1
Larry J. Patrie DE-0752-13-0954-I-1
Melton N. Skaggs DE-0752-14-0159-I-1
Michael B. Dunn DE-0752-13-0896-I-1
Pamela S. Thomas DE-0752-13-0987-I-1
Philip A. Samudio DE-0752-13-0966-I-1
Robert M. Parvin DE-0752-13-0953-I-1
12
APPENDIX B
AR3 Fort Leavenworth KS (IMCOM)
DE-0752-14-0204-I-1
Alan D. Edwards DE-0752-13-0897-I-1
Allen L. Barnes DE-0752-13-0862-I-1
Brian R. Valdez DE-0752-13-0991-I-1
Candice L. Spath DE-0752-13-0978-I-1
Carol L. Brown DE-0752-13-0872-I-1
Courtney J. Risser DE-0752-13-0963-I-1
Daniel D. Doyle DE-0752-13-0894-I-1
David D. Brown DE-0752-13-0873-I-1
David M. Mellott DE-0752-13-0941-I-1
Edward L. Smith DE-0752-13-0976-I-1
Eugene K. Kreutzer DE-0752-13-0926-I-1
James L. Light DE-0752-13-0933-I-1
James M. Recoy DE-0752-13-0959-I-1
James T. Herken DE-0752-13-0910-I-1
Jeffrey R. Shugart DE-0752-13-0971-I-1
Jennifer L. Burford DE-0752-13-0876-I-1
Jeremey C. Allen DE-0752-13-0856-I-1
Jeremy J. Dunn DE-0752-13-0895-I-1
Joseph P. Peel DE-0752-13-0955-I-1
Juan J. Guzman DE-0752-13-0904-I-1
Kashawna N. McCaskill DE-0752-13-0938-I-1
Kris E. Wallace DE-0752-13-0993-I-1
Leonard H. Schupp DE-0752-13-0967-I-1
Lori Carrell DE-0752-13-0878-I-1
Lori H. Sigmon DE-0752-13-0973-I-1
13
Luis M. DeJesus DE-0752-13-0889-I-1
Mark D. Weishaubt DE-0752-13-0995-I-1
Matthew W. Liechti DE-0752-13-0932-I-1
Melissa D. Tull DE-0752-13-0990-I-1
Michael L. Hickman DE-0752-13-0912-I-1
Michael L. Lay DE-0752-13-0931-I-1
Nancy K. Boyer DE-0752-13-0868-I-1
Randy A. Thornton DE-0752-13-0988-I-1
Richard T. Baggett DE-0752-13-0861-I-1
Robert E. Allen DE-0752-13-0857-I-1
Robert W. Dokos DE-0752-13-0893-I-1
Teresa L. Dickerson DE-0752-13-0891-I-1
Timothy J. Mondero DE-0752-13-0946-I-1
Travis G. Boxley DE-0752-13-0867-I-1
14
APPENDIX C
AR4 Fort Leavenworth KS (MEDCOM)
DE-0752-14-0205-I-1
Amber E. Morgan DE-0752-13-0948-I-1
Angela F. Clauser DE-0752-13-0882-I-1
Audrey G. Harris DE-0752-13-0853-I-1
Bridgett L. Henry DE-0752-13-0909-I-1
Carolyn C. Anderson DE-0752-13-0858-I-1
Charlea A. Davis DE-0752-13-0887-I-1
Charles Johnson DE-0752-13-0920-I-1
David M. Lasko DE-0752-13-0930-I-1
Doris J. Cozadd DE-0752-13-0885-I-1
Dorothy M. Ramsey DE-0752-13-0958-I-1
Gulden Taylor DE-0752-13-0985-I-1
Janet M. Boschert DE-0752-13-0866-I-1
Kenya W. Abby DE-0752-13-0855-I-1
Laura Miller DE-0752-13-0945-I-1
Lisa M. Davis DE-0752-14-0154-I-1
Marianela Melo DE-0752-13-0942-I-1
Mark E. Catron DE-0752-13-0880-I-1
Marvin C. Ringgold DE-0752-13-0962-I-1
Mary C. Mathia DE-0752-13-0937-I-1
Mary E. Willis DE-0752-13-0999-I-1
Mary S. Francis DE-0752-14-0156-I-1
Melanie P. Conners DE-0752-13-0883-I-1
Michelle G. Smith DE-0752-13-0977-I-1
Paul M. Wilde DE-0752-13-0998-I-1
Ray U. Tomkins DE-0752-13-0989-I-1
15
Rudy D. Geater DE-0752-13-0899-I-1
Saritza Mickelboro DE-0752-13-0944-I-1
Scott A. Shelton DE-0752-13-0970-I-1
Stephen A. Belair DE-0752-13-0863-I-1
Steven J. Weston-Clark DE-0752-13-0997-I-1
Susan D. Landers DE-0752-13-0928-I-1
William A. McCullough DE-0752-13-0939-I-1
16
APPENDIX D
AR5 Fort Leavenworth KS (Other)
DE-0752-14-0206-I-1
Amatallah N. Naim DE-0752-13-0951-I-1
Anthony C. Carriger DE-0752-13-0879-I-1
Aubrey L. Visocsky DE-0752-13-0992-I-1
Chong K. Bielefeld DE-0752-13-0865-I-1
Crystal D. Pettway DE-0752-13-0956-I-1
Damon P. Ward DE-0752-13-0994-I-1
Gilbert R. Hernandez DE-0752-13-0911-I-1
Jeffrey D. Johnson DE-0752-13-0921-I-1
John L. Ray DE-0752-14-0158-I-1
Katherine E. Woods DE-0752-13-1000-I-1
Polly A. West DE-0752-13-0996-I-1
Ronny L. Holland DE-0752-13-0915-I-1
Scott E. Hamel DE-0752-13-0905-I-1