Stuart Harrow v. Department of Defense ( 2022 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STUART R. HARROW, DOCKET NUMBER
Appellant, PH-0752-13-3305-I-1
v.
DEPARTMENT OF DEFENSE, DATE: May 11, 2022
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Stuart R. Harrow, Kew Gardens, New York, pro se.
Lida V. Kianoury, Esquire, Philadelphia, Pennsylvania, for the agency.
BEFORE
Raymond A. Limon, Vice Chair
Tristan L. Leavitt, 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 in the following circumstances: 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
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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. 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, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).
¶2 The appellant was employed by the Defense Contracting Management
Agency (DCMA) in its Philadelphia, Pennsylvania office. Initial Appeal File
(IAF), Tab 1 at 7-9, Tab 4 at 24-28. The DCMA is a component of the
Department of Defense (DOD). Vassallo v. Department of Defense, 122 M.S.P.R.
156, ¶ 2, aff’d, 797 F.3d 1327 (Fed. Cir. 2015). DOD imposed department-wide
furloughs during Fiscal Year (FY) 2013. The furloughs resulted from the
sequestration, which required across-the-board reductions in Federal spending
pursuant to the Balanced Budget and Emergency Deficit Control Act, as amended ,
as well as from the misallocation of funds while DOD was operating under a
continuing resolution and incurring unexpectedly high wartime costs . Complete
Defense Contract Management Agency Administrative Record for FY 2013
Furlough Appeals (CAR), part 1 at 1-8. 2 The furloughs were widely imposed
throughout DOD with only a few categories of exempt employees. Id. at 63-67.
As a component of DOD, the DCMA was required to follow the directive of the
Secretary of Defense and implement the furloughs within its workforce. Id. at 72.
2
The CAR is a set of documents pertaining to all DCMA appeals for the 2013
sequestration furlough. The CAR may be found on the Board’s website at
https://www.mspb.gov/furloughappeals/dcma2013.htm.
3
¶3 The agency issued the appellant a proposal notice for the furlough, which he
received on May 29, 2013. IAF, Tab 4 at 30-32. The appellant replied to the
notice and requested that the agency exempt him on the ground that the furlough
would impose a financial hardship on his famil y. Id. at 29. The deciding official
issued the appellant a decision letter on July 2, 2013, informing him that he
would be furloughed for up to 11 workdays; ultimately, he was furloughed for
6 days. Id. at 20-23, 26-28.
¶4 The appellant filed a timely Board appeal challenging the furlough. IAF,
Tab 1. He questioned the legitimacy of the furlough action and argued that he
should have been exempt because the resulting loss of pay would subject him to
financial hardship. Id. at 5; IAF, Tab 4 at 29. He also took issue with the
decision to require him to serve his furlough days on a discontinuous basis rather
than on consecutive days, arguing that he might have been able to find temporary
employment during the furlough days if he had been allowed to serve them
consecutively. IAF, Tab 1 at 5. The appellant additionally challenged the
agency’s assertion that the furlough promoted the efficiency of the service. Id.;
IAF, Tab 8 at 5-13, Tab 15. He advocated broadening the definition of
“efficiency of the service” and establishing a formula by which it could be
measured. IAF, Tab 8 at 8-9, 11-13, Tab 11 at 8-27.
¶5 Originally, the appellant’s appeal was consolidated with those filed by other
DCMA employees assigned to the agency’s Philadelphia Office, and the
consolidated appeal was designated as DCMA Phila v. Department of Defense,
MSPB Docket No. PH-0752-14-0405-I-1. Consolidated Appeal File (CAF),
Tab 3. 3 The administrative judge directed the appellants in DCMA Phila to file
their prehearing submissions by May 11, 2015, and to participate in a prehearing
teleconference on May 18, 2015. CAF, Tab 13. Of the 33 persons who
comprised the pool of appellants in the consolidated appeal, only the appellant in
3
All pleadings and orders in the CAF are docketed as DCMA Phila v. Department of
Defense, MSPB Docket No. PH-0752-14-0405-I-1.
4
the instant case filed a prehearing submission or participated in the prehearing
teleconference. CAF, Tab 16. The administrative judge thus cancelled the
hearing for the other appellants, deciding their appeals on the written record. Id.
The administrative judge held a hearing for the appellant on June 25, 2015. IAF,
Tab 15 at 1.
¶6 The administrative judge issued an initial decision finding that the agency
established it had a legitimate factual basis for the furlough and that the furlough
promoted the efficiency of the service. IAF, Tab 20, Initial Decision (ID) at 10.
He explained that he lacked authority to change Board law regarding defining and
measuring the efficiency of the service. ID at 10 -11. The administrative judge
further found that the appellant failed to show he was erroneously excluded from
any of the categories of employees exempt from the furlough for mission-specific
reasons. ID at 10. As for the appellant’s contention that the furlough caused his
family financial hardship, the administrative judge found that such equitable
considerations would not establish a basis for finding that the furlough action was
improper or that it failed to promote the efficiency of the service. ID at 11. He
likewise found that the Board lacked jurisdiction over such conside rations as
whether the appellant might have been allowed to serve the furlough on
consecutive days. ID at 11-12. The administrative judge thus affirmed the
furlough action. ID at 12.
¶7 Before issuing the initial decision, the administrative judge notified the
parties that the Board had experienced a significant data loss from its computer
systems, and the recording of the hearing in this appeal had been lost. The
administrative judge prepared for the parties a detailed 6 -page Memorandum of
Record Summarizing the Hearing of June 25, 2015, which set forth the issues and
testimony from the hearing. IAF, Tab 15. The memorandum states that both
parties reviewed the administrative judge’s notes from the hearing, which were
reproduced therein, and both confirmed that the notes accurately represented the
testimony and closing arguments presented at the hearing. Id. at 1. The
5
administrative judge prepared the initial decision from these hearing notes. ID
at 1 n.1.
¶8 The appellant filed a petition for review and a related motion to reopen
discovery for the purpose of examining the Board’s records. Petition for Review
(PFR) File, Tabs 1, 3. The appellant argues that the administrative judge’s
preparation and use of the Memorandum of Record, though admirable, did not
have a basis in the Board’s procedures or rules. PFR File, Tab 1 at 9-11. The
appellant further argues that because the Memorandum of Record was prepared
only 4 days before the initial decision was issued, it was likely that the initial
decision was prepared from an alternative source. Id. at 7. The appellant
additionally asserts that the administrative judge “did not provide any details
regarding the date of [the Board’s data] loss, or the circumstances surrounding the
loss.” Id. at 10. He thus explains that he “invokes his right of Discovery, and
requests that the [Board] provide him with the full circumstances of the ‘issue
involving the Merit Systems Protection Board’s computer server.’” Id.
¶9 At the outset, to the extent that the appellant may be asserting that the loss
of hearing tapes violated 5 U.S.C. § 7701(a)(1) (providing for a hearing “for
which a transcript will be kept”) or 5 C.F.R. § 1201.53(a) (recognizing that a
hearing is ordinarily recorded by a court reporter under an administrative judge’s
guidance, but that “[j]udges may prepare recordings in some hearings, such as
those conducted telephonically”), we disagree.
¶10 In Harp v. Department of the Army, 791 F.2d 161, 163 (Fed. Cir. 1986), the
U.S. Court of Appeals for the Federal Circuit rejected a petitioner’s claim that the
unavailability of a hearing transcript constituted harmful error per se, requiring
reversal of the Board’s decision. The court noted that “such loss is not fatal” to
the court’s ability to review a Board appeal. The court analyzed several factors in
its consideration of whether a fatal flaw occurred, such as whether the appellant
established that he was prejudiced by the loss of the hearing transcript, whether
the appellant showed that the administrative judge failed to consider or misused
6
any particular testimony from the hearing, and whether other evidence existed in
the record that would support the administrative judge’s findings. Id.; see also
Kemp v. Department of Veterans Affairs, 154 F. App’x 912, 914 (Fed. Cir.
2005) 4; Morales v. Merit Systems Protection Board, 932 F.2d 800, 802 (9th Cir.
1991); Henderson v. Office of Personnel Management, 109 M.S.P.R. 529, ¶ 5 n.1
(2008).
¶11 Here, we find that the appellant did not show that he was prejudiced by the
absence of the telephonic hearing tapes and he did not allege that the
administrative judge failed to consider or misused any particular testimony of the
two approved witnesses that might have caused a different result in this case. In
addition, while the hearing tapes may not have been available, the record in this
case was sufficiently developed to provide a basis for a meaningful review of the
issues raised by the appellant. In his summary of the prehearing conference, the
administrative judge noted that, in making his decision, he would consider all of
the exhibits contained in the agency files in both this case and the consolidated
appeal designated as DCMA Phila, along with any documents attached to the
appellant’s petition for appeal. The administrative judge also wrote that he would
consider the exhibits included in the DCMA administrative record, located at
http://www.mspb.gov/furloughappeals/dcma2013.htm. Our review of the initial
decision indicates that the administrative judge did just that; the initial decision
contains a detailed and thorough analysis that demonstrates a careful
consideration of the testimony and weighing of the evidence. ID at 1-12. In fact,
the appellant failed to show that the hearing testimony was in any way different
from that related by the administrative judge in the initial decision.
¶12 The appellant further suggests that the hearing itself was too informal, and a
recording of the hearing would show that he had been ill -prepared to testify under
4
The Board may follow a nonprecedential decision of the Federal Circuit when, as here,
it finds its reasoning persuasive. Morris v. Department of the Navy, 123 M.S.P.R. 662,
¶ 13 n.9 (2016).
7
such circumstances. He argues that had he been able to give his prepared
testimony, the outcome of the appeal may have been different. PFR File, Tab 1
at 10-11. He included with his petition for review a copy of the prepared
testimony comprising Power Point slides and hand-written notes that he evidently
was intending to provide at a more formal hearing. Id. at 22-35. The appellant’s
argument is unavailing. The appellant asserted that he may have been confused
by some of the administrative judge’s instructions during the prehearing
conference. Id. at 8-9. However, having subsequently agreed in writing that the
Memorandum of Record accurately represented the hearing testimony from which
the administrative judge would prepare the initial decision, id. at 17-21, he cannot
reverse his position now in the hope that the Board will grant him the opportunity
to present his testimony and arguments once more and in greater detail.
¶13 We likewise deny the appellant’s motion to reopen discovery. Discovery is
the process by which a party may obtain information relevant to his case that
another person or party has not already provided. 5 C.F.R. § 1201.71. Relevant
information includes information that appears reasonably calculated to lead to the
discovery of admissible evidence. Id. Discovery is intended to assist the parties
in preparing and presenting their cases. Id. Board records pertaining to its
information technology systems 5 would not assist the appellant in finding
admissible evidence regarding DCMA’s decision to furlough him. Therefore, the
appellant’s motion is denied.
¶14 The appellant also has asked the Board to reconsider its standard set forth in
Chandler v. Department of the Treasury, 120 M.S.P.R. 163 (2013), for
determining whether a furlough decision promotes the efficiency of the service .
PFR File, Tab 1 at 8, 11-14. In Chandler, the Board deferred to agency discretion
5
MSPB’s Annual Report for FY 2015 explained that the agency “experienced an IT
outage in late June 2015 resulting in the loss of [its] virtual IT environment and
employee working and archived documents.” Annual Report for FY 2015
(Feb. 29, 2016), https://mspb.gov/about/annual_reports/MSPB_FY_2015_Annual_
Report_1275851.pdf.
8
regarding decisions such as allocating budgetary resources and furlough days
among employees who are not similarly situated. Chandler, 120 M.S.P.R. 163,
¶ 9. Instead, the Board found that the efficiency of the service determination
encompassed issues relating to uniformly and consistently applying the furlough,
including whether the agency used a furlough to target employees for personal
reasons, or attempted to exempt certain employees from the furlough without
legitimate management reasons. Id. The appellant asserts that the separate
opinion in Chandler, which criticized the majority’s recognition of the agency’s
broad discretion under the statute to impose a furlough, offered a better approach.
PFR File, Tab 1 at 8. The appellant argued that the Board should expand the
definition of the efficiency of the service and establish criteria by which to
measure how the efficiency of the service is furthered, considering each agency’s
unique mission requirements. Id. at 12. He argues that the Board’s definition is
so broad as to be vague. Id. at 12-13.
¶15 The appellant’s argument is unavailing. The appellant acknowledges that
Chandler is the Board’s current standard for analyzing whether a furlough
promotes the efficiency of the service. 6 He also admits that the administrative
judge followed Chandler. While he might criticize Chandler and agree with the
then-Vice Chairman’s separate opinion, we find his personal preferences on this
issue are insufficient reason for the Board to disturb settled law.
NOTICE OF APPEAL RIGHTS 7
You may obtain review of this final decision. 5 U.S.C. § 7703(a)(1). By
statute, the nature of your claims determines the time limit for seeking such
6
The U.S. Court of Appeals for the Federal Circuit in Berlin v. Department of Labor,
772 F.3d 890, 895 (Fed. Cir. 2014) “[found] nothing improper” in the Board’s adoption
of the standard set forth in Chandler and determined that the Board’s standard was
“reasonable.”
7
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
9
review and the appropriate forum with which to file. 5 U.S.C. § 7703(b).
Although we offer the following summary of available appeal rights, the Merit
Systems Protection Board does not provide legal advice on which option is most
appropriate for your situation and the rights described below do not represent a
statement of how courts will rule regarding which cases fall within their
jurisdiction. If you wish to seek review of this final decision, you should
immediately review the law applicable to your claims and carefully follow all
filing time limits and requirements. Failure to file within the applicable time
limit may result in the dismissal of your case by your chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general. As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision. 5 U.S.C.
§ 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, and 11.
10
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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
(2) Judicial or EEOC review of cases involving a claim of
discrimination. This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims—by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. ____ , 137 S. Ct. 1975 (2017). If you have a
representative in this case, and your representative receives this decision before
you do, then you must file with the district court no later than 30 calendar days
after your representative receives this decision. If the action involves a claim of
discrimination based on race, color, religion, sex, national origin, or a disabling
condition, you may be entitled to representation by a court-appointed lawyer and
to waiver of any requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues. 5 U.S.C. § 7702(b)(1). You must file any such request with the
11
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012. This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 8 The court of appeals must receive your
8
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
12
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the
following address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit 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, 10, 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
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115 -195,
132 Stat. 1510.
13
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx.
FOR THE BOARD: /s/ for
Jennifer Everling
Acting Clerk of the Board
Washington, D.C.