                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 35

                             Docket Nos. DC-0752-14-0632-I-1
                              Defense Intelligence Agency, 1
                                         Appellant,
                                              v.
                                 Department of Defense,
                                          Agency.
                                        April 30, 2015

           Paul P. Holden, Jr., Clifton, Virginia, pro se.

           Kenneth F. Miller, Nokesville, Virginia, pro se.

           John A. Fraser, III, Washington, D.C., for the agency.

                                          BEFORE

                             Susan Tsui Grundmann, Chairman
                                Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellants have filed petitions for review of the initial decision, which
     affirmed the agency’s furlough actions. For the following reasons, we conclude
     that the petitioners have not established a basis under 5 C.F.R. § 1201.115 for



     1
       Our findings in this Opinion and Order apply only to Appellant Paul P. Holden, Jr.,
     MSPB Docket No. DC-0752-13-6407-I-1, and Appellant Kenneth F. Miller, MSPB
     Docket No. DC-0752-13-6613-I-1, not to the other appellants who previously were part
     of the consolidation in this case but did not file a petition for review. See Dye v.
     Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).
                                                                                     2

     granting their petitions for review. We therefore DENY the petitions for review
     and AFFIRM the initial decision.

                                     BACKGROUND
¶2         On June 3, 2013, the agency informed the appellants, Assistant General
     Counsels in the Office of General Counsel (OGC) at the Defense Intelligence
     Agency (DIA), that it proposed to furlough them for no more than 11 workdays
     due to the “extraordinary and serious budgetary challenges facing the Department
     of Defense (DOD) for the remainder of Fiscal Year (FY) 2013, the most serious
     of which is the sequester that began on March 1, 2013,” i.e., across-the-board
     reductions to federal budgetary resources caused by the Budget Control Act of
     2011, as amended by the American Taxpayer Relief Act of 2012. Consolidated
     Appeal File (CAF), Tab 6 at 45-47; Holden v. Department of Defense, MSPB
     Docket No. DC-0752-13-6407-I-1, Initial Appeal File (Holden IAF), Tab 4 at 4,
     17; Miller v. Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1,
     Initial Appeal File (Miller IAF), Tab 2 at 4, 20.      The agency afforded the
     appellants an opportunity to respond orally and in writing to the proposal notice,
     to review the supporting material, and to furnish affidavits or supporting
     documentary evidence in their answers. CAF, Tab 6 at 46.
¶3         In subsequent memoranda, the agency’s deciding official determined that
     the reasons for the proposed furlough remained valid, the procedures and
     conditions related to the furlough were determined to be the most equitable means
     of implementing the furlough, and the appellants would be required to be on a
     discontinuous furlough for no more than 11 workdays during the period from
     July 8, 2013, through September 30, 2013. Holden IAF, Tab 4 at 18; Miller IAF,
     Tab 2 at 21. The appellants ultimately served 6 workdays on furlough. Holden
     IAF, Tab 4 at 9; Miller IAF, Tab 2 at 15.
¶4         The appellants filed individual appeals challenging the furlough actions,
     which the Board consolidated in this case with the related appeals of other DIA
                                                                                      3

     employees. CAF, Tab 1 at 1, 15. Among other things, the appellants contested
     the manner in which the agency implemented an exception to the furlough related
     to employees funded through the National Intelligence Program (NIP).          CAF,
     Tab 14 at 3-4.    In planning the furlough, the agency recognized only limited
     exceptions, which included when furloughing would not reduce the DOD budget.
     CAF, Tab 6 at 50-53. One exception applied to employees who were funded with
     NIP funds.    Id. at 48, 52.   In contrast, any employees who were funded with
     Military Intelligence Program (MIP) funds would be subject to furlough.         Id.
     at 52. The agency explained that it exempted employees who were funded with
     NIP funds from the furlough because they were paid by the Office of the Director
     of National Intelligence and not with DOD funds. Id. at 21-22 (declaration of the
     Chief of the Employee Benefits and Services Division, DIA’s Office of Human
     Resources), 28-30 (declaration of DIA’s Chief Financial Officer). Conversely,
     employees who were funded with MIP funds remained subject to furlough
     because DOD, which was facing major budgetary shortfalls in its FY 2013 budget
     due to sequestration, was responsible for paying those employees. Id. at 28-29
     (declaration of DIA’s Chief Financial Officer), 35 (declaration of the Under
     Secretary    of   Defense   (Comptroller)/Chief   Financial   Officer   in   DOD).
     Accordingly, while NIP-funded employees and MIP-funded employees may have
     been performing in the same or similar positions, the agency maintained that it
     was the source of funding for their positions, rather than the duties of the
     positions themselves, that differentiated them for furlough purposes. Id. at 29-31
     (declaration of DIA’s Chief Financial Officer). The appellants argued, among
     other things, that the DIA billets were misaligned and did not correspond to
     actual duties, which resulted in disparate treatment and the wrong employees
     being furloughed. CAF, Tab 14 at 3-4.
¶5         In an initial decision based on the written record, the administrative judge
     affirmed the furlough actions.    CAF, Tab 19, Initial Decision (ID) at 1.     She
     found that the agency’s furlough was a reasonable management solution to the
                                                                                     4

     shortage of funds caused by sequestration and that the agency established that its
     furlough actions were taken for the efficiency of the service. ID at 1-5, 8. In so
     finding, the administrative judge rejected the appellants’ arguments that the
     agency did not conduct the furlough in a fair and even manner because it
     exempted NIP-funded employees from the furlough while it did not exempt
     employees, like the appellants, who were MIP-funded. ID at 4-5; Holden IAF,
     Tab 5 at 5-11; Miller IAF, Tab 4 at 4-8. The administrative judge also found
     unpersuasive the appellants’ arguments that their billets were misaligned under
     the MIP. ID at 4-5; Holden IAF, Tab 5 at 5-7; Miller IAF, Tab 4 at 4-8. She
     further found that Appellant Miller failed to prove his claims that the agency
     violated his due process rights and committed harmful procedural error when it
     took the furlough action. ID at 5-8; Miller IAF, Tab 1 at 4.
¶6         The appellants have filed separate petitions for review of the initial
     decision.   Holden v. Department of Defense, MSPB Docket No. DC-0752-13-
     6407-I-1, Petition for Review File (Holden PFR File), Tab 1; Miller v.
     Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1, Petition for
     Review File (Miller PFR File), Tab 1.       On review, the appellants primarily
     challenge the administrative judge’s findings concerning the equity of the
     furlough as it applied to their group in OGC, which included both NIP-funded
     and MIP-funded attorneys.     Holden PFR File, Tab 1 at 5-8; Miller PFR File,
     Tab 1 at 4-6. The agency has filed responses in opposition to the petitions for
     review. Holden PFR File, Tab 2; Miller PFR File, Tab 2.

                                        ANALYSIS
¶7         The Board has found that an agency meets its burden of proving that a
     furlough promotes the efficiency of the service 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
                                                                                           5

     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). A “fair and even manner” means that
     the agency applied the adverse action furlough uniformly and consistently. Id.
     This does not mean that the agency is required to apply the furlough in such a
     way as to satisfy the Board’s sense of equity.        Id.   Rather, it means that the
     agency is required to treat similar employees similarly and to justify any
     deviations with legitimate management reasons. Id.
¶8         The appellants argue that the agency failed to apply its determination as to
     which employees to furlough in a “fair and even manner.” Holden PFR File,
     Tab 1 at 6; Miller PFR File, Tab 1 at 4. Specifically, the appellants argue that
     they were unfairly subjected to the furlough because their positions were
     misaligned in MIP-funded billets. 2 Holden PFR File, Tab 1 at 6; Miller PFR File,
     Tab 1 at 5. Appellant Miller claims that certain employees in NIP-funded billets
     in his group in OGC were performing MIP functions while other employees in
     MIP-funded billets, like the appellants, were performing NIP functions. Miller
     PFR File, Tab 1 at 5.      Appellant Miller also argues that the agency unfairly
     implemented the furlough because it realigned two of the five attorneys in his
     group in OGC from MIP-funded billets to NIP-funded billets to exempt them
     from the furlough. See id. at 5-6. He further argues that, because the agency
     knew his billet was also misaligned in an MIP-funded billet, it similarly should
     have moved him to an NIP-funded billet to avoid the furlough. Id.
¶9         The administrative judge found unpersuasive the appellants’ misalignment
     arguments. ID at 4-5. In so finding, she determined that the two attorneys who

     2
       Neither appellant disputes that the furlough was, in general, a reasonable management
     solution to the financial restrictions placed on the agency. Nor do the appellants claim
     that they should not have been subjected to the furlough because they occupied
     positions with NIP billets or otherwise met the agency’s criteria for an exception. Cf.
     Dye, 121 M.S.P.R. 142, ¶ 10. Rather, their issue is with the agency’s failure to realign
     the billets, which they contend would have resu lted in their being realigned to an NIP
     billet and thus they would have been exempted from the furlough. E.g., Holden PFR
     File, Tab 1 at 6; Miller PFR File, Tab 1 at 4-5.
                                                                                      6

      the agency realigned prior to the furlough were in temporary billets at the time
      and had to be moved out of those billets prior to the furlough’s implementation.
      ID at 5. She also determined that Appellant Miller and the two other attorneys in
      their group who were in MIP-funded billets were not occupying temporary billets
      at the time and could not be realigned for that reason. ID at 5. As set forth
      below, we find that the record evidence supports the administrative judge’s
      findings.
¶10         In a declaration submitted below, DIA’s Chief Financial Officer stated that
      the decision to align a billet to either the NIP or the MIP was made through
      negotiations between the offices of the Under Secretary of Defense for
      Intelligence and the Director of National Intelligence and that the decision
      typically was not made at the individual billet level. CAF, Tab 6 at 30. She
      indicated that the decision ultimately was submitted to the United States
      Congress and the President for their approval in an annual DOD appropriations
      bill. Id. A Management Analyst for DIA averred that the group of billets that
      included Appellant Miller’s and Appellant Holden’s billets was aligned to the
      MIP on August 3, 2008, well in advance of the FY 2013 furlough. Miller IAF,
      Tab 2 at 13-14 (declaration of DIA Management Analyst, J.C.).            She also
      described that, during the planning of the furlough, there were discussions about
      whether the functions performed by the appellants would be better aligned to the
      NIP. Id. at 13. As a result of these discussions, DIA asked the Under Secretary
      of Defense for Intelligence to exempt from the furlough the appellants and the
      other attorney in the office who occupied an MIP-funded billet but he denied the
      request, stating that no furlough exemptions would be approved at that time to
      avoid unfair treatment. Id.
¶11         We find unavailing the appellants’ arguments concerning the misalignment
      of their billets. In planning the furlough, the Secretary of Defense specifically
      directed the agency to furlough its employees who were funded with MIP funds.
      CAF, Tab 6 at 52. The record shows that the appellants’ billets at the time of the
                                                                                         7

      furlough were aligned to the MIP pursuant to an agreement, made years earlier,
      between the Under Secretary of Defense for Intelligence and the Director of
      National Intelligence. Id. at 13-14. Even if DIA believed that the appellants’
      billets were misaligned to the MIP at the time of the furlough, there is no
      evidence in the record to suggest that any alleged misalignment of the attorneys’
      billets in OGC was meant to target the appellants for personal reasons. See, e.g.,
      In re Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R. 385, ¶ 17
      (2014) (stating that the efficiency of the service determination encompasses
      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). Rather, the record reveals that the agency uniformly and
      consistently applied the furlough to its attorneys in OGC pursuant to its orders at
      the time. CAF, Tab 6 at 48-53; see Chandler, 120 M.S.P.R. 163, ¶ 8. Further,
      the appellants have not established that the agency was obligated to realign the
      billets as they propose under any applicable law or other authority. 3
¶12         Concerning Appellant Miller’s argument regarding the two attorneys whose
      billets were realigned prior to the furlough, DIA’s General Counsel indicated
      that, in preparing for the furlough, the agency learned that those employees were
      in temporary billets.   Miller IAF, Tab 7 at 16 (declaration of DIA’s General
      Counsel). He stated that the Office of the Chief Financial Officer had directed,
      pursuant to a longstanding order from the Director of DOD, that all employees in
      temporary billets be moved into permanent billets in advance of the furlough. Id.
      To comply with the Director’s order, the two attorneys in temporary billets were
      realigned to two open permanent billets in the NIP. Id.; see Miller IAF, Tab 2


      3
        There has been no showing, for instance, that the agency failed to fo llow any
      applicab le procedures in this regard, and thus the appellants’ arguments fail to the
      extent they could be construed as an attempt to show harmful error under 5 U.S.C.
      § 7701(c)(2). See 5 C.F.R. § 1201.56(b)(1), (c)(3).
                                                                                           8

      at 13 (declaration of DIA Management Analyst, J.C.). DIA’s General Counsel
      further explained that, because Appellant Miller occupied a permanent billet at
      the time, the agency had no basis to reassign him into another billet. Miller IAF,
      Tab 7 at 16. Therefore, we find that the agency has shown that it implemented
      the furlough in a fair and even manner.         Specifically, it has shown that its
      decision to exempt the two attorneys in Appellant Miller’s group was based on a
      legitimate management reason, i.e., that their positions were NIP-funded, and that
      their realignment prior to the furlough was not based on personal reasons but on
      the fact that they were occupying temporary billets and needed to be realigned to
      permanent billets before the implementation of the furlough.          See, e.g., In re
      Tinker AFSC/DP, 121 M.S.P.R. 385, ¶ 17. Accordingly, we find that Appellant
      Miller has set forth no basis to disturb the administrative judge’s findings in this
      regard.
¶13         Appellant Miller also challenges the administrative judge’s finding that he
      failed to prove that the agency committed harmful error by violating DOD
      Instruction 1442.02. 4    Miller PFR File, Tab 1 at 6-8.            Under 5 U.S.C.
      § 7701(c)(2)(A), the Board will not sustain an agency decision if the appellant
      “shows harmful error in the application of the agency’s procedures in arriving at
      such decision.” The Board may not assume that an employee has been harmed by
      a procedural error in the adverse action process; rather, the appellant bears the
      burden of proving harm. Pumphrey v. Department of Defense, 122 M.S.P.R. 186,
      ¶ 10 (2015). A procedural error is harmful where the record shows that the error
      was 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. Id.



      4
       On review, Appellant Miller does not challenge the administrative judge’s finding that
      he failed to prove that the agency violated his due process rights, and we discern no
      basis to disturb that finding. ID at 7-8.
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¶14            DOD Instruction 1442.02 provides, among other things, that the proposing
      and deciding officials in an adverse action against a civilian attorney, such as
      Appellant Miller, shall be in the attorney’s supervisory chain. Miller IAF, Tab 7
      at 42 (DOD Instruction 1442.02, Enclosure 4, Paragraph 6d). Here, there is no
      dispute that the proposing and deciding officials were not in Appellant Miller’s
      supervisory chain.         The administrative judge found no violation of the
      Instruction, however, because she found that the Instruction was inapplicable
      under the circumstances. ID at 5-6. She further found that, even if the agency
      was required to follow the Instruction, any error in its application was not
      harmful. ID at 6-7. Assuming arguendo that the agency committed procedural
      error in violation of DOD Instruction 1442.02, we agree with the administrative
      judge’s finding that Appellant Miller failed to prove that the error was harmful.
      ID at 6-7.
¶15            According to Appellant Miller, his supervisory chain consisted of three
      civilian attorneys, including DIA’s General Counsel. Miller IAF, Tab 4 at 9. In
      his declaration submitted below, the General Counsel stated that he would have
      complied with the Secretary of Defense’s written order directing the furlough of
      civilian personnel in MIP-funded billets, like Appellant Miller, had he been the
      deciding official in the matter. Miller IAF, Tab 7 at 15. On review, Appellant
      Miller     claims   that   the   General   Counsel’s   conclusion   is   based   on   a
      misunderstanding of the NIP and MIP realignment situation. Miller PFR File,
      Tab 1 at 7-8.       He claims that all three attorneys in his supervisory chain
      “consistently expressed strong support for [his] position, and as such, had they
      been aware of [the Under Secretary of Defense for Intelligence’s] willingness to
      realign certain NIP and MIP billets, they may well have worked to exempt [me]
      from the furlough.” Id. Appellant Miller’s speculation that the attorneys in his
      supervisory chain “may well have worked to exempt” him from the furlough had
      they been made aware of certain information does not meet his burden of proving
      that the agency’s failure to assign the appropriate proposing and deciding
                                                                                       10

      officials under the circumstances was likely to have caused the agency to reach a
      different decision on the proposed furlough action. See Pumphrey, 122 M.S.P.R.
      186, ¶ 11 (finding that an appellant’s speculation is insufficient to establish
      harm).    Accordingly, we find no basis to disturb the administrative judge’s
      finding that Appellant Miller failed to prove harmful procedural error. ID at 6-7.
¶16           Appellant Holden claims on review that the administrative judge abused
      her discretion when she failed to consider his prehearing submission and closing
      brief. Holden PFR File, Tab 1 at 4-5. It is well settled that administrative judges
      have broad discretion to regulate the proceedings before them, including the
      authority to rule on discovery motions and to impose sanctions as necessary to
      serve    the ends of justice.       See   Guzman    v. Department     of   Veterans
      Affairs, 114 M.S.P.R. 566, ¶ 12 (2010); see also 5 C.F.R. § 1201.43(a), (c). Here,
      the record shows that the administrative judge granted the agency’s motion to
      strike Appellant Holden’s prehearing submission as untimely filed, CAF, Tab 14
      at 1 n.1, and its motion to strike Appellant Holden’s closing brief because it
      included arguments already stricken from the record and because it raised new
      arguments not identified in the administrative judge’s previous order, CAF, Tab
      17 at 2. We find no abuse of discretion under the circumstances, as Appellant
      Holden failed to comply with the administrative judge’s explicit instructions.
      CAF, Tabs 9, 14, 17; see Ryan v. Department of the Air Force, 117 M.S.P.R. 362,
      ¶ 5 (2012) (the Board ordinarily will not reverse an administrative judge’s rulings
      regulating the proceedings absent an abuse of discretion); see also Guzman, 114
      M.S.P.R. 566, ¶ 12 (the Board will not disturb an administrative judge’s
      determination to impose a sanction, unless it is shown that the administrative
      judge abused her discretion or that her erroneous ruling adversely affected a
      party’s substantive rights). In any event, as the administrative judge stated in the
      initial decision, the arguments raised by Appellant Holden in his prehearing
      submission and closing brief were the same arguments that Appellant Miller
      timely raised and which she found unpersuasive in the initial decision. ID at 8
                                                                                       11

      n.1. Because we affirm her findings on review, we find that Appellant Holden
      has not shown that any alleged abuse of discretion prejudiced his substantive
      rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984)
      (an adjudicatory error that is not prejudicial to a party’s substantive rights
      provides no basis for the reversal of an initial decision).
¶17         Accordingly, we affirm the furlough actions.

                                             ORDER
¶18         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        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
                                                                                12

States     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 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.
