                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2014 MSPB 55

                             Docket No. SF-0752-13-1913-I-1

                                  Johnathan Gajdos, 1
                                        Appellant,
                                             v.
                               Department of the Army,
                                         Agency.
                                       July 22, 2014


           Johnathan Gajdos, Monterey, California, pro se.

           Michael L. Halperin, Esquire, Monterey, California, for the agency.

                                         BEFORE

                           Susan Tsui Grundmann, Chairman
                           Anne M. Wagner, Vice Chairman
                              Mark A. Robbins, Member
               Vice Chairman Wagner issues a separate, dissenting opinion.


                                 OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that affirmed the
     agency’s furlough action. For the following reasons, we find that the petitioner
     has not established a basis under 5 C.F.R. § 1201.115 to grant the petition for
     review. We therefore DENY the petition and AFFIRM the initial decision’s due


     1
       Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Army
     Training Doctrine Command v. Department of the Army, MSPB Docket
     No. SF-0752-13-4840-I-1.
                                                                                      2

     process analysis AS MODIFIED by this Opinion and Order, still affirming the
     furlough action.

                                     BACKGROUND
¶2         On May 28, 2013, the agency issued a Notice of Proposed Furlough
     informing the appellant, an Assistant Professor, that the Defense Language
     Institute Foreign Language Center (DLIFLC) proposed to furlough him 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.”    Initial Appeal File (IAF), Tab 1 at 1, 7-8; Army Training
     Doctrine Command v. Department of the Army, MSPB Docket No. SF-0752-13-
     4840-I-1, Consolidation File (CF), Tab 8 at 23. The agency notified the appellant
     that the Budget Control Act of 2011, as amended by the American Taxpayer
     Relief Act of 2012, made across-the-board reductions to budgetary resources for
     the federal government, that DoD must and will protect wartime operations
     funding for its troops in harm’s way, that “[t]his inevitably means larger cuts in
     base-budget funding for the Operation and Maintenance (O&M) accounts,” and
     that DoD “will need funding in other accounts that can be used to provide the
     warfighters with what they need to protect national security and fight the war.”
     CF, Tab 8 at 23. The agency afforded the appellant an opportunity to respond
     orally and/or in writing to the proposal, to review the supporting material, and to
     furnish affidavits or other supporting documentary evidence in his answer. Id.
     at 24. The proposal notice indicated that no decision to furlough had been made
     or would be made until full consideration was given to the appellant’s reply. Id.
¶3         By written notice dated June 14, 2013, the agency’s deciding official
     informed the appellant that his written and oral replies to the proposal notice had
     been reviewed and carefully considered, determined that the reasons for the
     proposed furlough remained valid, and indicated that the procedures and
                                                                                      3

     conditions related to the furlough were determined to be the most equitable means
     of implementing the furlough and that the appellant 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.      IAF, Tab 1 at 10-11.    The record
     includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
     2013, on discontinuous days between July 8, 2013, and September 30, 2013, not
     to exceed a maximum of 88 hours, with the appellant’s supervisor informing the
     appellant of the specific furlough dates before the beginning of each pay period.
     Id. at 7-8.
¶4          On appeal, the appellant asserted that: (1) the furlough did not promote the
     efficiency of the service because active-duty service member students at the
     DLIFLC would be present for instruction with half-strength teaching teams,
     which could result in lower student graduation rates and increased costs
     associated with extending the length of student training; (2) it appeared that his
     written response to the proposal had not been considered because the decision
     notice incorrectly indicated that he had made an oral reply and did not
     specifically address the concerns he had raised; (3) the decision notice did not
     specify the reasons for the decision, but merely indicated that the reasons set
     forth in the proposal notice remained valid; (4) the decision notice did not state
     the basis for selecting a particular employee for furlough, as required by 5 C.F.R.
     § 752.404, and the agency did not provide him with any materials the agency
     relied upon specific to his furlough action; (5) the DLIFLC Commandant, who
     signed the decision letter, did not appear to be empowered to make the decision,
     which should have been signed by the Secretary of Defense as the true deciding
     official; and (6) the agency engaged in discrimination based on national origin
     because it furloughed U.S. citizens but not foreign national civilian employees on
     H-1B visas. IAF, Tab 1 at 5; see IAF, Tab 8 at 5-10.
¶5          The administrative judge consolidated this appeal with several other
     appeals. CF, Tabs 2-3. Based on the written record because the appellants either
                                                                                        4

     did not request a hearing or withdrew their request for a hearing, see, e.g., IAF,
     Tab 13, the administrative judge affirmed the furlough actions, CF, Tab 21,
     Initial Decision (ID) at 1-2, 12. The administrative judge found that the agency
     subsequently reduced the number of furlough days served by the appellants to 6
     workdays. ID at 3. She further found that the agency proved that the furloughs
     promoted the efficiency of the service by offering unrebutted evidence that the
     agency had to make significant spending cuts because of sequestration, 2 that the
     furloughs helped the agency avoid a deficit without jeopardizing military
     readiness, and that the agency imposed the furloughs uniformly with exceptions
     only for a limited number of categories, such as employees who were needed to
     protect life or property or whose absence would result in the failure of a critical
     mission. ID at 6.
¶6         Regarding the appellants’ claim relating to H-1B visa holders, who are not
     U.S. citizens, the administrative judge held that the appellants did not establish a
     prima facie case of discrimination because citizenship is not a cognizable
     protected category under Title VII of the Civil Rights Act of 1964, and the
     appellants did not specify that they were members of a protected category with
     respect to national origin, given that U.S. citizens encompass a variety of national
     origins. ID at 7-8. The administrative judge also held that the agency established
     a legitimate management reason for exempting H-1B visa holders from the
     furlough, namely, regulations requiring the agency to pay H-1B visa holders even
     if the employee is not working as long as the inability to work is the result of the

     2
       Under the Balanced Budget and Emergency Deficit Control Act, as amended, see
     2 U.S.C. § 901a, Congress required the Office of Management and Budget to calculate
     and the President to order a “sequestration” on March 1, 2013, for FY 2013 that would
     reduce each spending account within certain security and nonsecurity categories by a
     uniform percentage to achieve certain reduction goals. See Chandler v. Department of
     the Treasury, 120 M.S.P.R. 163, ¶ 4 (2013); CF, Tab 7 at 69.
                                                                                       5

     agency’s action or inaction.    ID at 8.   The administrative judge rejected the
     appellants’ harmful error claim, finding as to 5 C.F.R. § 752.404(b)(2) that there
     was no evidence that the appellants and other employees who were not
     furloughed were in the same competitive level, and that the agency, in any event,
     provided sufficient notice of the basis for furloughing some employees but not
     others and the specific reasons for the furlough. ID at 8-9.
¶7         Finally, the administrative judge held that the appellants did not prove that
     the agency violated their due process rights. ID at 10-12. In this regard, the
     administrative judge held that there was no regulatory or judicially imposed
     requirement that the agency specifically address all arguments raised in a
     response to a proposal notice, and that a failure to address all such arguments
     was not a due process violation.     The administrative judge also noted that a
     May 14, 2013 memorandum from the Secretary of Defense indicated that
     deciding officials would have the discretion to execute the full range of options,
     including reducing the number of days an individual is furloughed or granting an
     exception from the furlough.        ID at 11; see CF, Tab 7 at 70-74.           The
     administrative judge further held that the deciding official’s limited discretionary
     review in this case was consistent with the nature of furloughs resulting from a
     sequestration, which are unlike other adverse actions because factors normally
     within a deciding official’s discretion, such as the factors set forth in Douglas v.
     Veterans Administration, 5 M.S.P.R. 280, 305-06 (1981), which are relevant in
     agency penalty determinations, do not apply here. ID at 12.

                                        ANALYSIS
¶8         The appellant asserts on review that there is substantial evidence indicating
     that the deciding official did not have the authority to reverse the course of the
     proposed furlough, including: (1) a memorandum from the deciding official
     indicating that the furlough was mandatory to meet required spending reductions
     and that neither the union nor management would be able to stop the furlough;
                                                                                        6

     (2) an email from the deciding official indicating that “we will furlough only if
     we are told we have to”; (3) the agency’s response to the appeal, which indicated
     that the agency is a “top-down organization,” which is required to obey orders
     within the chain of command, and the deciding official was ordered to furlough
     all non-exempt civilian employees; and (4) the agency’s response to an
     interrogatory indicating that, if an employee was not exempt from the furlough,
     the response to the proposal notice was given no further consideration. Petition
     for Review (PFR) File, Tab 1 at 4-6.      The appellant further contends that his
     pre-decisional reply opportunity was precluded because a decision made by the
     Secretary of Defense before the proposal notice was issued required the deciding
     official to furlough him, and that the agency did not follow its own adverse action
     procedures, which required that deciding officials have “full authority” to make a
     decision. Id. at 7. In this regard, the appellant asserts that he had no opportunity
     to reply to the Secretary of Defense, “the official who appears to have actually
     been the one making the decision to effect this adverse action.” Id. at 9. Finally,
     the appellant asserts that the action did not promote the efficiency of the service
     because the agency admitted that the furlough created delays, mission failures,
     and cancellations relating to administrative or day-to-day operations. Id. at 8.
¶9         “Furlough” means the placing of an employee in a temporary status without
     duties and pay because of a lack of work or funds or other nondisciplinary
     reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. A furlough of 30 days or
     less is appealable to the Board under 5 U.S.C. chapter 75. 5 U.S.C. §§ 7512(5),
     7513(d); 5 C.F.R. § 752.401(a)(5).       A furlough of more than 30 days is
     appealable to the Board as a reduction in force (RIF) action under 5 C.F.R.
     § 351.901. Agencies must conduct furloughs of more than 30 days according to
     the RIF procedures of 5 C.F.R. Part 351, and the Board will review such actions
     to determine whether the agency properly invoked and applied the RIF
     regulations.   Williams v. Tennessee Valley Authority, 24 M.S.P.R. 555, 557
     (1984); 5 C.F.R. § 351.201(a)(2). Agencies may conduct furloughs of 30 days or
                                                                                        7

      less without following RIF procedures. Chandler, 120 M.S.P.R. 163, ¶ 5. Such
      actions are reviewable by the Board under the “efficiency of the service” standard
      of 5 U.S.C. § 7513(a). Chandler, 120 M.S.P.R. 163, ¶ 5; Clerman v. Interstate
      Commerce Commission, 35 M.S.P.R. 190, 192 (1987); see 5 C.F.R. § 752.403.
      Both RIFs and adverse action furloughs, however, are taken for the same types of
      nondisciplinary reasons.     Chandler, 120 M.S.P.R. 163, ¶ 5; see Hastie v.
      Department of Agriculture, 24 M.S.P.R. 64, 75 (1984), overruled on other
      grounds by Horner v. Andrzjewski, 811 F.2d 571, 574-77 (Fed. Cir. 1987). In
      light of the basic similarities between RIF and adverse action furloughs, RIF
      principles are instructive in determining the scope of the Board’s review of
      adverse action furloughs and what it means for a furlough of 30 days or less to be
      taken for the “efficiency of the service.” Chandler, 120 M.S.P.R. 163, ¶ 7.
¶10         Furloughs are unique among adverse actions because by definition they are
      taken for nondisciplinary reasons and are generally used to address work or
      funding shortages or other matters that are not personal to the affected employee.
      5 U.S.C. § 7511(a)(5); Chandler, 120 M.S.P.R. 163, ¶ 8. An agency satisfies the
      “efficiency of the 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,” Clark v. Office of Personnel
      Management, 24 M.S.P.R. 224, 225 (1984), i.e., that the agency applied the
      adverse action furlough uniformly and consistently, just as it is required to apply
      a RIF, Chandler, 120 M.S.P.R. 163, ¶ 8; 5 C.F.R. § 351.201(c).           The agency
      is not required to apply the furlough in such a way as to satisfy the Board’s sense
      of equity.   Chandler, 120 M.S.P.R. 163, ¶ 8.      Rather, the agency must treat
      similar   employees   similarly and    justify any deviations     with    legitimate
      management reasons. Id.; see 5 C.F.R. § 752.404(b)(2) (“When some but not all
      employees in a given competitive level are being furloughed, the notice of
      proposed action must state the basis for selecting a particular employee for
                                                                                             8

      furlough, as well as the reasons for the furlough.”).           Which employees are
      similarly situated for purposes of an adverse action furlough will be decided on a
      case-by-case basis, but the Board is guided by RIF principles in making that
      determination.    Chandler, 120 M.S.P.R. 163, ¶ 8; see 5 C.F.R. § 752.404(b)(2)
      (applying RIF competitive level principles to adverse action furloughs).
¶11         The Board has also held that its efficiency of the service determination
      does not encompass agency spending decisions per se, including spending on
      personnel matters. See 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 efficiency of the service determination does encompass issues relating to the
      uniform and consistent application of 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. 3 Id.
¶12         Although the appellant asserts that the agency’s action did not promote the
      efficiency of the service because the agency admitted that the furlough created
      delays, mission failures, and cancellations relating to administrative or
      day-to-day operations, PFR File, Tab 1 at 8, these types of disruptions are the
      likely result of any furlough and do not demonstrate a failure to meet the


      3
        The dissent asserts in ¶ 4 that the Board applies “a diminished due process analysis”
      when reviewing RIF and furlough adverse actions. We disagree. We do agree with the
      dissent, though, that RIF and furlough adverse actions and inability to perform cases are
      similar in that they all are not disciplinary in nature. We note, however, that an agency
      takes a physical inability to perform action based on a finding that the particular
      individual cannot do his or her job for medical reasons personal to the employee. In
      contrast, furlough or RIF adverse actions target entire groups of employees or, indeed at
      times, entire agencies for reasons not personal to any employee. Yet, agencies always
      must satisfy the efficiency of the service standard in all these cases for the Board to
      sustain the agency’s action.
                                                                                       9

      efficiency of the service standard.   We agree with the administrative judge’s
      determination that the agency proved that the furlough promoted the efficiency of
      the service because the agency showed that the furlough was a reasonable
      management solution to the financial restrictions placed on it and applied its
      determination as to which employees to furlough in a fair and even manner. ID
      at 3-6; see Chandler, 120 M.S.P.R. 163, ¶ 8.           We also agree with the
      administrative judge that the agency established a legitimate management reason
      for exempting H-1B visa holders from the furlough and that the appellant did not
      prove national origin discrimination. ID at 7-8. To the extent that the appellant
      has alleged that the agency committed harmful error because the deciding official
      did not have “full authority” to make a decision regarding the furlough, the
      appellant has not shown that any error in that regard likely caused the agency to
      reach a conclusion different from the one it would have reached in the absence or
      cure of the error. See 5 C.F.R. § 1201.56(c)(3).
¶13         Regarding the appellant’s due process contention, procedural due process
      rights derive from a property interest in which the individual has a legitimate
      claim of entitlement. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Once
      acquired, a property interest falls within the protections of procedural due
      process. A property interest is not created by the U.S. Constitution; rather, it is
      created and its dimensions are defined by existing rules or understandings that
      stem from an independent source, such as a statute. Stone v. Federal Deposit
      Insurance Corporation, 179 F.3d 1368, 1374 (Fed. Cir. 1999).
¶14         Here, 5 U.S.C. §§ 7512(5) and 7513(a) provide that an agency may
      furlough an employee for 30 days or less “only for such cause as will promote the
      efficiency of the service.” This language creates a legitimate claim of entitlement
      to retention in a pay status, and thus a property interest, that conditions the
      placement of an employee in a temporary status without duties and pay on such
      cause as will promote the efficiency of the service. See Stone, 179 F.3d at 1374
      (“If the government gives a public employee assurances of continued employment
                                                                                       10

      or conditions dismissal only for specific reasons, the public employee has a
      property interest in continued employment.”); McGriff v. Department of the Navy,
      118 M.S.P.R. 89, ¶¶ 27-28 (2012) (finding the appellant entitled to constitutional
      due process, i.e., notice and a meaningful opportunity to respond, upon being
      indefinitely suspended based on the agency’s security clearance decision); Kriner
      v. Department of the Navy, 61 M.S.P.R. 526, 532 (1994) (the agency’s
      deprivation of the appellant’s property interest in his employment—his
      suspension from his job—triggered the application of due process); see also
      Krause v. Small Business Administration, 502 F. Supp. 1332, 1338-39 (S.D.N.Y.
      1980) (finding a protected property interest in a federal employee’s expectation
      of continued and uninterrupted public employment because the agency could
      suspend him for 7 days only “for such cause as will promote the efficiency of the
      service”).   In fact, the Board held in Chandler, 120 M.S.P.R. 163, ¶ 31, that
      information regarding the specific process applied by the agency in conducting a
      furlough would be relevant to the issue of due process, thus implicitly finding a
      protected property interest at stake.    Having found that the appellant has a
      property interest at stake in this case, the question remains as to what process is
      due, and whether the procedure that the agency applied sufficiently satisfied the
      mandates of due process.
¶15            In a May 14, 2013 memorandum to the Secretaries of the Military
      Departments and other DoD managers, the Secretary of Defense directed defense
      managers to prepare to furlough most DoD civilians for up to 11 days. CF, Tab 7
      at 70.    The memorandum set forth the schedule for furloughs and specific
      exceptions and noted that the decision was made very reluctantly.         Id.   The
      memorandum indicated that the Secretary of Defense, along with the senior
      civilian and military leadership of DoD, spent considerable time reviewing
      information related to the need for furloughs and described in detail the major
      budgetary shortfalls driving the basic furlough decision, including the amount of
      the reduction in different budgetary accounts, an increase in fuel costs related to
                                                                                        11

      wartime operating costs, and the amount of time left in the fiscal year.          Id.
      at 70-71.   The memorandum also described the need to minimize the adverse
      effect on military readiness, and detailed the other actions taken to reduce the
      shortfall, such as cutbacks in training and facilities maintenance and efforts made
      to obtain Congressional approval to shift funds between accounts.          Id.   The
      Secretary of Defense determined that, even after taking these actions, DoD was
      still short of needed operating funds for FY 2013, and that deciding to furlough
      civilian personnel was an unpleasant but necessary choice when faced with the
      alternative of making even larger cutbacks in training and maintenance, which
      would further reduce readiness to handle contingency operations and put in
      greater jeopardy military readiness in future fiscal years.        Id. at 71.    The
      memorandum indicated that the Secretary of Defense sought advice and input
      from senior leaders in the military departments and agencies, as well as advice
      from senior civilian and military staff, and that the decision to direct furloughs of
      up to 11 days for most civilian personnel represented half the number originally
      planned, which reflected vigorous efforts to meet budgetary shortfalls through
      actions other than furloughs. Id. The Secretary of Defense noted that furloughs
      would be imposed in every military department and almost every agency with
      limited exceptions driven by law and the need to minimize harm to mission
      execution, such as civilians deployed to combat zones, civilians needed to protect
      life and property, and civilians excepted for specific mission reasons or because
      furloughing them would not free up money for mission needs. Id. at 71-72.
¶16         The May 14, 2013 memorandum also identified who could be a deciding
      official, indicated that deciding officials were “charged with, and [were]
      accountable for, making final decisions on furloughs for individual employees
      after carefully considering the employee’s reply, if any, and the needs of the
      Department,” and stated that deciding officials “[would] have the authority to
      execute the full range of options with respect to providing relief in individual
      employee cases,” including reducing the number of days or hours an individual
                                                                                       12

      was to be furloughed or granting the employee an exception from the furlough.
      Id. at 74.
¶17          After the agency issued its notice proposing his furlough, the appellant
      submitted his written response to the notice to a “Reply Official,” i.e., the Deputy
      Chief of Staff for Personnel and Logistics. CF, Tab 8 at 23-24, 50-51. In his
      June 14, 2013 decision letter, the Commandant of the DLIFLC indicated that the
      appellant’s response was “reviewed and carefully considered,” but that the
      reasons for the proposed furlough remained valid. IAF, Tab 1 at 10-11. In its
      response to one of the appellant’s interrogatories in this case, the agency
      indicated that the following procedures were used after the appellant filed his
      response to the proposed furlough:
             When the Agency received written replies to the Proposed Furloughs,
             the Reply Official drafted a summary of the employee’s arguments,
             and sent the reply and summary to the Office of the Staff Judge
             Advocate (OSJA) for a legal review to determine whether the
             employee fell within one of the furlough exemptions. The OSJA
             conducted a review, after which, the package was sent to the
             Deciding Official for final review and signature. If the employee
             was not exempt from furlough, their [sic] response was given no
             further consideration.
             The Appellant neither fell into one of the furlough exemptions, nor
             did he claim to be exempt in his response. As a result, his response
             was given no consideration beyond what is described above.
      IAF, Tab 12 at 10. The appellant also relies upon a March 1, 2013 memorandum
      from the Commandant to DLIFLC faculty and staff indicating that “the furlough
      will affect all DLIFLC Department of Army civilians; there will be very few
      exceptions for the Army and we do not expect any for DLIFLC,” that “the
      furlough will be mandatory to meet required spending reductions,” and that
      “[n]either the Union nor DLIFLC management will be able to stop the furlough.”
      IAF, Tab 11 at 9. The appellant further contends that the Commandant stated
      during a February 27, 2013 “Fiscal Uncertainty” briefing that “we can meet our
      budget cuts without furlough, so we will furlough only if we are told we have to.”
                                                                                              13

      Id. at 11; see CF, Tab 7 at 6 (the agency’s response to the appeal indicating that
      the appellants do not fall into one of the categories of exempt civilians, and
      “[b]ecause the Appellants were not exempt from the furlough, and because the
      Agency was required … to furlough all non-exempt civilian employees, the
      Agency furloughed the Appellants.”).            The appellant asserts these documents
      indicate that the Commandant had only limited, if any, authority and was not the
      true decision maker because he did not have the authority to reverse the furlough.
      PFR File, Tab 1 at 4-8. Thus, the appellant alleges that additional procedural
      protections were required in the form of an opportunity to submit a response to an
      official, such as the Secretary of Defense, with the authority to reverse the
      furlough. Id. at 9.
¶18         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.’” Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
      (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).                Such opportunity
      “should   be   an     initial     check   against   mistaken   decisions—essentially,    a
      determination of whether there are reasonable grounds to believe that the charges
      against the employee are true and support the proposed action.” Cleveland Board
      of Education v. Loudermill, 470 U.S. 532, 545-46 (1985).             Nevertheless, “due
      process, unlike some legal rules, is not a technical conception with a fixed
      content unrelated to time, place, and circumstances.” Mathews, 424 U.S. at 334.
      Rather, it is “flexible and calls for such procedural protections as the particular
      situation demands.”         Id.      Thus, resolution of the issue of whether the
      administrative procedures provided here are constitutionally sufficient requires
      the Board to analyze the governmental and private interests that are affected. See
      id. In particular, identification of the specific dictates of due process generally
      requires consideration of three factors: first, the private interest affected by the
      official action; second, the risk of an erroneous deprivation of the private interest
      through the procedures used, and the probable value, if any, of additional or
                                                                                        14

      substitute procedural safeguards; and third, the government’s interest, including
      the function involved and the fiscal and administrative burdens the additional or
      substitute procedural requirement would entail. Id. at 335.
¶19         Regarding the first Mathews factor, i.e., the private interest affected by the
      action, although the Supreme Court has recognized the severity of depriving
      someone of the means of livelihood by terminating the individual, it has also
      emphasized that, in determining what process is due, one must take into account
      the length and finality of that deprivation. Gilbert v. Homar, 520 U.S. 924, 932
      (1997); see Miranda v. Southern Pacific Transp. Co., 710 F.2d 516, 524 (9th Cir.
      1983) (Wallace, J., concurring in part and dissenting in part) (“Although the
      requirements of procedural due process apply to the deprivation of even small
      amounts of property, the severity of the deprivation is a factor to be weighed in
      determining the appropriate form of the hearing.”). Thus, as long as a furloughed
      or suspended employee receives a sufficiently prompt post-deprivation hearing,
      the lost income from such temporary actions is “relatively insubstantial
      (compared with termination), and fringe benefits such as health and life insurance
      are often not affected at all.” See Homar, 520 U.S. at 932. The 6-day furlough in
      this case is far less substantial than the termination at issue in Loudermill and the
      approximately 10-month suspension at issue in McGriff, 118 M.S.P.R. 89, ¶ 29,
      which the Board described as a “significant” deprivation.          We nevertheless
      recognize that, although a furlough is a temporary deprivation, like a suspension,
      it is nonetheless “likely to cut off subsistence income and to prevent one from
      obtaining other gainful employment,” and it may have a “great practical impact”
      on the employee.     Engdahl v. Department of the Navy, 900 F.2d 1572, 1575
      (Fed. Cir. 1990).
¶20         Second, we must consider the risk of an erroneous deprivation of such
      interest through the procedures used and the probable value, if any, of additional
      or substitute procedural safeguards. Mathews, 424 U.S. at 335. When the Court
      in Loudermill, 470 U.S. at 535, 542-46, considered the second Mathews factor in
                                                                                      15

      the context of a public employee who had been discharged from employment
      based on his dishonesty in filling out an employment application, it explained
      that, for the purpose of reaching an accurate decision, the opportunity to respond
      to a proposed removal is important for two reasons. First, an adverse action will
      often involve factual disputes and consideration of an employee’s response may
      clarify such disputes. Id. at 543; see Stone, 179 F.3d at 1376. Second, “[e]ven
      where the facts are clear, the appropriateness or necessity of the [penalty]
      may not be,” and in such cases the employee must receive a “meaningful
      opportunity to invoke the discretion of the decisionmaker.” Loudermill, 470 U.S.
      at 543.   Thus, “the employee’s response is essential not only to the issue of
      whether the allegations are true, but also with regard to whether the level of
      penalty to be imposed is appropriate.” Stone, 179 F.3d at 1376.
¶21         We find in this case that there was a low risk of an “erroneous” deprivation
      of a property interest through the procedures used by the DLIFLC. As set forth
      above, the procedures used by the agency were designed to limit the risk of an
      erroneous deprivation of a property interest by ensuring that the appellant did not
      fall within one of the furlough exemptions. The appellant does not suggest that
      any such error occurred, or was even likely to occur, concerning him. See Wash.
      Teachers’ Union Local # 6 v. Bd. of Educ., 109 F.3d 774, 780 (D.C. Cir. 1997)
      (“Although the Union suggests that factual errors, such as attributing disciplinary
      proceedings to the wrong teachers, could produce erroneous scores on ranking
      forms, the record contains no evidence that such errors have occurred, much less
      that the risk of such errors is significant.”).
¶22         Moreover, in considering what procedural protections are required in this
      situation, there is a fundamental difference in the nature of the action at issue
      here as compared to the actions at issue in such cases as Loudermill and McGriff.
      As set forth above, the action in Loudermill was based on employee misconduct
      such that the court found it necessary, in order to reduce the risk of an erroneous
      deprivation, to permit the employee to invoke the discretion of the decision
                                                                                             16

      maker as to the appropriateness or necessity of the penalty. 470 U.S. at 545-46.
      Similarly, in McGriff, 118 M.S.P.R. 89, ¶¶ 3-6, 33, the Board held that a
      significant question existed as to “whether the appellant had a meaningful
      opportunity to respond to the proposed indefinite suspension such that the
      procedures that were used posed a risk of erroneous deprivation of the appellant’s
      property interest.” There, the agency had indefinitely suspended the appellant
      based on its suspension of his security clearance, which in turn was based on
      alleged    conduct   that    involved    questionable   judgment,       untrustworthiness,
      unreliability, and unwillingness to comply with rules and regulations. Here, by
      contrast, DoD and the agency made certain policy and spending decisions and
      directed the furlough action at the appellant’s position, not at any conduct,
      characteristic, qualification, or reputation of the appellant as an individual. See
      Chandler, 120 M.S.P.R. 163, ¶ 8 (furloughs are unique among adverse actions
      because by definition they are taken for nondisciplinary reasons and are generally
      used to address work or funding shortages or other matters that are not personal
      to the affected employee). Thus, the agency did not impose a “penalty” upon the
      appellant that was amenable to invoking the discretion of the deciding official in
      favor of the appellant as an individual. See id., ¶ 31 (the factors set forth in
      Douglas,    5 M.S.P.R.      at 305-06,   which   are    relevant   in    agency   penalty
      determinations in adverse action cases, do not apply to furloughs, which
      are nondisciplinary).
¶23         In making such policy decisions in conducting a furlough, agencies have
      broad management discretion. See id., ¶ 9 (matters such as spending decisions
      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); Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (agencies
      retain the expertise to make spending choices to save funds necessary to avoid
      furloughs). Thus, there is little risk in the procedures used by the agency of an
      “error” as that term is generally understood. See UDC Chairs Chapter, Am. Ass’n
                                                                                     17

      of Univ. Professors v. Bd. of Trustees of the Univ. of the Dist. of Columbia,
      56 F.3d 1469, 1474 (D.C. Cir. 1995) (“Where, as here, the deprivation turns on a
      policy decision and not on an individual’s characteristics, a predeprivation
      hearing would do little to reduce the risk of erroneous deprivation of the
      chairpersons’ interests.”); Brown v. Brienen, 722 F.2d 360, 368 (7th Cir. 1983)
      (Flaum, J., concurring) (the “risk of government error and the value of a
      predeprivation hearing in reducing that risk” is “insubstantial” when the decision
      not to grant compensatory time off is based on staffing shortages and
      individualized determinations of fact or law are not necessary).    We therefore
      find only minimal probable value in the substitute procedural safeguard suggested
      by the appellant, namely, an opportunity to submit his response to a different
      decision maker, such as the Secretary of Defense, who would presumably have
      had superior authority to that of the DLIFLC Commandant with respect to
      reversing the furlough.
¶24         Our analysis of the third Mathews factor, the government’s interest,
      including the function involved and the fiscal and administrative burdens that the
      additional or substitute procedural requirement would entail, turns largely on
      sheer numbers.     See Wash. Teachers’ Union Local # 6, 109 F.3d at 781.
      Irrespective of the total number of DoD civilian employees affected by the
      furlough nationwide, the record reflects that the Department of the Army’s
      furlough alone was expected to impact 251,000 civilians. CF, Tab 7 at 49, 52.
      Requiring the Secretary of Defense to have considered and answered all of the
      responses to the proposed furloughs affecting DoD civilian employees would
      have slowed the furlough process considerably and added a significant
      administrative burden. Cf. Wash. Teachers’ Union Local # 6, 109 F.3d at 781
      (requiring principals to answer each of the 400 responses to the teachers’ ranking
      forms would have slowed the RIF process considerably, both delaying and
      reducing the financial savings that were desperately needed).        Under these
      circumstances, we find that the government’s interest under the third Mathews
                                                                                            18

      factor weighs heavily. See Whalen v. Mass. Trial Court, 397 F.3d 19, 25 (1st Cir.
      2005)    (because    reorganizations    often   affect   numerous     employees,     the
      governmental interest in efficient administration may weigh more heavily).
¶25           Balancing the Mathews factors and taking into account the availability of
      post-deprivation relief before the Board, see Clements v. Airport Auth. of Washoe
      Cnty., 69 F.3d 321, 332 (9th Cir. 1995) (the nature of subsequent proceedings
      may lessen the amount of process that the state must provide pre-termination), we
      hold that the agency satisfied the requirements of due process in this case. The
      agency’s need to cut expenditures quickly and efficiently in the face of an
      extensive number of civilian employees furloughed nationwide as a result of the
      sequester outweighed the appellant’s interest given the length of the furlough and
      the minimal risk of error involved. 4


      4
         In concluding that the agency failed to provide the appellant with a meaningful
      opportunity to respond because the deciding official presumably did not give any
      consideration to the appellant’s response to the furlough notice, the dissent relies on a
      statement the appellant made in his January 6, 2014 “Supplement to the Record.” The
      appellant claimed therein that the agency, in response to one of his interrogatories,
      wrote that, “[i]f the employee was not exempt from [the] furlough, their [sic] response
      was given no further consideration . . . . The appellant neither fell into one of the
      furlough exemptions, nor did he claim to be exempt in his response. As a result, his
      response was given no consideration beyond what was described above.” IAF, Tab 14
      at 6, Tab 12 at 10 (emphasis added). We believe the dissent’s reliance on the
      appellant’s statement may be misplaced for three reasons.

      First, the quoted language itself denotes, by inclusion of the words “further
      consideration,” that the agency did consider the appellant’s response. Second, the
      appellant omitted a crucial sentence at the end of the agency’s response to this
      interrogatory. Importantly, in this missing sentence, the agency explained that: “[t]he
      appellant acknowledged receipt . . . of the letter the Agency presented him, which
      informed him that his response had been considered, but that, nonetheless, the
      reasons for furloughing him remained valid and would go into effect as planned.” IAF,
      Tab 12 at Exhibit E (emphasis added). This omitted language reflects once again that
      the agency gave consideration to the appellant’s reply. Third, the agency’s response to
      the interrogatory states that the agency provided the appellant with “no consideration
      beyond what is described above.” The phrase, “what is described above” refers to the
      preceding paragraph of the agency’s response to the interrogatory, in which the agency
                                                                                             19

¶26         Accordingly, we AFFIRM the initial decision AS MODIFIED by this
      Opinion and Order, still affirming the furlough action.

                                              ORDER
¶27         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)).




      elaborates on the process it provided the appellant and other employees to ensure that
      they were given a meaningful opportunity to respond. In particular, as we stated above
      in ¶ 17, the agency reported that:

            When the Agency received written replies to the Proposed Furloughs, the
            Reply Official drafted a summary of the employee’s arguments, and sent a
            reply and summary to [OSJA] for a legal review to determine whether the
            employee fell within one of the furlough exemptions.            The OSJA
            conducted a review, after which, the package was sent to the Deciding
            Official for final review and signature. If the employee was not exempt
            from furlough, their [sic] response was given no further consideration.
      Id. As this language makes plain, the agency’s review process was a far cry from “an
      empty formality,” as the dissent characterizes it. In fact, the agency provided three
      steps during the review process: (a) the reply official’s receiving, reviewing, and
      summarizing the appellant’s reply; (b) the OJSA’s receiving and legally reviewing both
      the appellant’s reply and the reply official’s summary of the appellant’s arguments; and
      (c) the deciding official’s review, prior to signing the final decision, of the “package,”
      which included the appellant’s response. In light of these factors, we believe that the
      agency ensured that the appellant was given a meaningful opportunity to respond to the
      furlough notice and that the agency, including the deciding official, duly considered the
      appellant’s response to the furlough notice. See Lachance v. Erickson, 522 U.S. 262,
      266 (1998) (“The core of due process is the right to notice and a meaningful
      opportunity to be heard.”).
                                                                                   20


                  NOTICE TO THE APPELLANT REGARDING
                     YOUR FURTHER REVIEW RIGHTS
      You have the right to request further review of this final decision.

Discrimination Claims: Administrative Review
      You may request review of this final decision on your discrimination
claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).         If you
submit your request 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 your request 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, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
                                                                                 21

you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. 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. § 2000e5(f) and
29 U.S.C. § 794a.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
                     DISSENTING OPINION OF ANNE M. WAGNER

                                               in

                        Johnathan Gajdos v. Department of the Army

                           MSPB Docket No. SF-0752-13-1913-I-1

¶1         In this appeal, the agency has acknowledged that the appellant’s response to
     its proposed furlough action was not given any consideration by the deciding
     official after it was determined that he did not fall into one of several specified
     furlough exemptions. Initial Appeal File (IAF), Tab 12 at 10. This issue raises a
     concern that the appellant was not provided a meaningful opportunity to respond
     to the agency’s notice of proposed action. After finding that furloughs of 30 days
     or less are fundamentally different in nature from other types of adverse actions
     appealable to the Board, the majority holds that the agency satisfied minimum
     requirements of due process.        Majority Opinion (Maj. Op.), ¶¶ 18-25.            I
     respectfully dissent because I disagree with the majority’s determination that
     employees subject to furlough actions are entitled to less protection under the
     Fifth Amendment than those facing other adverse actions identified in 5 U.S.C.
     § 7512.
¶2         As explained more fully in my separate opinion in Chandler v. Department
     of the Treasury, 120 M.S.P.R. 163 (2013), I disagree with the majority’s
     application of our highly deferential regulatory standard for reviewing reduction
     in force (RIF) cases to the adjudication of the government-wide furloughs
     implemented as a result of sequestration. The plain language of the Civil Service
     Reform Act 1 simply provides no basis for concluding that Congress intended that



     1
       The Civil Service Reform Act (Act) identifies the following five personnel actions as
     subject to the substantive and procedural protections set forth in 5 U.S.C. § 7513:
     removals; suspensions for more than 14 days; reductions in grade; reductions in pay;
     and furloughs of 30 days or less. 5 U.S.C. § 7512(1)-(5). The Act also explicitly
                                                                                        2

     furloughs of 30 days or less be treated any differently from the other statutorily
     appealable adverse actions identified in 5 U.S.C. § 7512(1)-(4). Had Congress so
     intended, it presumably would have excluded furloughs, as it did RIFs, from
     coverage under 5 U.S.C. § 7513. However, beyond noting that furloughs and RIF
     actions are both non-disciplinary and generally triggered by a shortage of funds,
     the majority still fails to provide a convincing legal basis for deviating so
     significantly from the plain statutory language by essentially importing
     deferential RIF concepts into our adjudication of actionable furloughs.
¶3        Consistent with the approach announced in Chandler, the majority here
     undertakes to reexamine the question of what process is constitutionally due
     furloughed employees. Maj. Op., ¶¶ 10, 22. I recognize that the Supreme Court,
     in Mathews v. Eldridge, 424 U.S. 319, 334 (1976), said that “due process, unlike
     some legal rules, is not a technical conception with a fixed content unrelated to
     time, place, and circumstances . . . [but, rather] is flexible and calls for such
     procedural protections as the particular situation demands.” Id. However, the
     Supreme Court has already distilled the Mathews factors to arrive at the
     fundamental contours of due process, i.e., notice and meaningful opportunity to
     respond, when a public employee is deprived of a property interest in
     employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (1985). For
     this reason, I believe that the majority’s discussion (Maj. Op., ¶¶ 18-25) of
     Mathews v. Eldridge, and particularly its application of the Mathews factors to
     define what constitutional process is due under these circumstances, to be
     unnecessary.   Instead, our examination of an employee’s entitlement to due
     process should be governed by Loudermill.
¶4        Nor do I believe that we can construe 5 U.S.C. § 7512 as creating a separate
     class of adverse actions, furloughs, warranting a diminished due process analysis.


     excludes certain personnel actions, including, inter alia, a RIF, from coverage under
     5 U.S.C. § 7513.
                                                                                       3

     The majority explains that the need for this reexamination stems from the fact
     that, unlike the other adverse actions identified in 5 U.S.C. § 7512, a furlough is
     taken for nondisciplinary reasons, i.e., to address work or funding shortages,
     rather than in response to individual misconduct. However, both the Board and
     the U.S. Court of Appeals for the Federal Circuit have long recognized that
     removals and suspensions taken for physical or medical reasons are not
     disciplinary in the narrow sense of the term, i.e., a sanction for improper conduct,
     but only in the broader sense of maintaining the orderly working of the
     government. See Thomas v. General Services Administration, 756 F.2d 86, 88-89
     (Fed. Cir. 1985) (appeal of an indefinite suspension pending a psychiatric fitness
     for duty examination); Hunley v. Department of the Air Force, 36 M.S.P.R. 493,
     495 (1988) (appeal of a period of enforced leave exceeding 14 days because of
     medical restrictions of no bending, lifting, climbing and walking); Jackson v.
     U.S. Postal Service, 5 M.S.P.R. 335, 336-37 (1981) (appeal of removal for failure
     to meet physical requirements, i.e., lifting, climbing stairs, walking, standing and
     bending, of the position), aff’d, 666 F.2d 258 (Fed. Cir. 1982). Yet, despite the
     fact that these actions are not taken in response to individual misconduct, the
     Board has not lowered the due process requirements afforded to employees
     subjected to them. Indeed, we have held that, when an employee has been placed
     on enforced leave for medical reasons without notice and an opportunity to
     respond, the action must be reversed because it cannot withstand constitutional
     scrutiny. Vargo v. U.S. Postal Service, 49 M.S.P.R. 284, 287 (1991).
¶5        If furloughed employees are entitled to the same constitutional protection
     afforded individuals facing other statutorily appealable actions, the inescapable
     conclusion would be that the agency denied the appellant due process here
     because the deciding official did not give the appellant a meaningful opportunity
                                                                                     4

to respond to the action. 2 While due process does not require that a deciding
official have the authority to ignore or overrule agency policies, the reply
opportunity may not be an empty formality, and the deciding official should have
authority to take or recommend agency action based on the reply. In this case, it
appears that the Secretary of Defense delegated the “authority to execute the full
range of options with respect to providing relief in individual cases” to deciding
officials. Consolidation File (CF), Tab 7 at 74. Despite the broad delegation of
authority to the deciding official here to review individual cases, the record
shows that he limited his consideration of cases only to whether the employee had
met one of several specific furlough exemptions.         For example, the appellant
argued in his written reply to the proposed furlough that the exemption of foreign
national employees improperly created two classes of employees, which gave an
improper preference to non-citizens in violation of merit systems principles. CF,
Tab 8 at 50. The deciding official apparently declined to give this argument any
consideration.   Accordingly, I would have reversed the furlough in this case
because the record shows that the appellant’s response to the proposed furlough
was not given any further consideration by the deciding official after it was
determined that the appellant did not fall into one of several specified furlough
exemptions.



______________________________
Anne M. Wagner
Vice Chairman




2
  Contrary to footnote 4 in the Majority Opinion, I find that the appellant has been
denied due process based upon the plain language in the agency’s response to the
appellant’s request for interrogatories and not the appellant’s characterization of it.
IAF, Tab 12 at 10.
