                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     NAVFAC - DEBERRY II,                            DOCKET NUMBER
                  Appellants, 1                      DC-0752-15-0690-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: January 13, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Jeffrey A. Collis, Norfolk, Virginia, for the appellants.

           Joseph J. Smith, Virginia Beach, Virginia, for Appellant Jeffrey A. Collis.

           Jacquelyn Wright, Esquire, Port Hueneme, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellants have filed a petition for review of the initial decision, which
     sustained their furloughs. Generally, we grant petitions such as this one only


     1
       The appellants that are included in this consolidation are set forth in Appendix A of
     this order.
     2
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     when: the initial decision contains erroneous findings of material fact; the initial
     decision is based on an erroneous interpretation of statute or regulation or the
     erroneous application of the law to the facts of the case; the 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 petitioners’ due
     diligence, was not available when the record closed. See title 5 of the Code of
     Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).           After fully
     considering the filings in this appeal, we conclude that the petitioners have not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review.        As set forth in ¶ 5 below, we
     MODIFY the administrative judge’s analysis of whether the agency took the
     furloughs for such cause as to promote the efficiency of the service. Except as
     expressly MODIFIED by this final order, we AFFIRM the initial decision.
¶2          The appellants, employees of the Naval Facilities Engineering Command,
     MidAtlantic, filed Board appeals challenging their furloughs for up to 88 hours
     arising out of the March 1, 2013 Sequestration Order issued by the President
     requiring across-the-board reductions in Federal spending pursuant to the
     Balanced Budget and Emergency Deficit Control Act, as amended. Department
     of the Navy Administrative Record for FY 2013 Furlough Appeals, Part 1,
     Tab 18, available at http://www.mspb.gov/furloughappeals/navy2013.htm; see,
     e.g., Collis v. Department of the Navy, MSPB Docket No. DC-0752-13-2344-I-1,
     Initial Appeal File (Collis IAF), Tab 1 at 2-3. Their appeals were consolidated
     with those of numerous other appellants under the caption NAVFAC DeBerry II v.
     Department of the Navy, MSPB Docket No. DC-0752-15-0690-I-1, Consolidation
     Appeal File (CAF), Tab 1.
¶3        Although the appellants requested a hearing, they were unable to produce
     either of their witnesses and, because the agency itself proffered no witnesses, the
                                                                                           3

     administrative judge decided the appeal on the written record.          CAF, Tab 14,
     Tab 17, Initial Decision (ID) at 1. She affirmed the furloughs, finding that they
     were for such cause as to promote the efficiency of the service, the agency
     afforded the appellants due process, and the appellants failed to establish their
     affirmative defense of harmful procedural error. ID at 6-8.
¶4         Appellant Jeffrey A. Collis has filed a petition for review on behalf of
     himself and the 106 other appellants that he is representing in this appeal,
     renewing his argument that the furlough decisions were the product of harmful
     procedural error. Petition for Review (PFR) File, Tab 2 at 3. 3 The agency has
     filed a response. PFR File, Tab 4.
¶5         On review, the appellants have not challenged the administrative judge’s
     finding that the furloughs were taken for such cause as to promote the efficiency
     of the service. ID at 6. However, the administrative judge’s efficiency of the
     service analysis does not follow the framework set forth in Dye v. Department of
     the Army, 121 M.S.P.R. 142, ¶ 9 (2014), and therefore must be modified.
     Specifically, an agency may furlough an employee for 30 days or less “only for
     such cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7512(5),
     7513(a). The concept of “cause” in the context of a furlough appeal encompasses
     whether the appellant met the criteria established by the agency for being subject
     to, and not excepted from, the furlough. Dye, 121 M.S.P.R. 142, ¶ 9. The agency
     has the burden of proof on this issue. Id., ¶¶ 9-10; see Tinker v. Department of
     Air Force, 121 M.S.P.R. 385, ¶¶ 14-15 (2014). Thus, to prove that a furlough
     was taken for such cause as to promote the efficiency of the service, the agency
     must show not only that the furlough in general was a reasonable management
     solution to work shortage or financial restrictions and that the agency applied its

     3
       Mr. Collis designated another appellant, Joseph J. Smith, as his representative.
     Collis IAF, Tab 1 at 3. Mr. Smith, in turn, designated Mr. Collis as his representative.
     Smith v. Department of the Navy, MSPB Docket No. DC-0752-13-2441-I-1, Initial
     Appeal File, Tab 2. Both Mr. Collis and Mr. Smith are signatories to the petition for
     review. PFR File, Tab 2 at 3.
                                                                                          4

     determination as to which employees to furlough in a fair and even manner,
     Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013), but also
     that the appellant met the criteria established by the agency for being subject to,
     and not excepted from, the furlough, Dye, 121 M.S.P.R. 142, ¶¶ 9-10. For the
     reasons explained in the initial decision, we agree with the administrative judge
     that the furloughs were a reasonable management solution to the financial
     restrictions brought on by the sequester and that the agency applied the furloughs
     in a fair and even manner. ID at 6. We also find that the parties stipulated that
     the appellants met the criteria established by the agency for being subject to, and
     not excepted from, the furlough. Id.; CAF, Tab 12 at 6, Tab 13 at 4. Accordingly
     we affirm the administrative judge’s analysis as modified, finding that the agency
     took the furlough actions for cause as set forth in Dye and that they promoted the
     efficiency of the service as set forth in Chandler.
¶6         Turning to the petition for review itself, the appellants argue that the
     furlough actions are contrary to a June 2001 memorandum of agreement between
     the agency’s Public Works Center in Norfolk, Virginia, and the Tidewater
     Virginia Federal Employees Metal Trades Council.                PFR File, Tab 2 at 3;
     Collis IAF, Tab 22 at 4-6.      According to the memorandum of agreement, the
     agency is responsible for providing emergency support after business hours.
     Collis IAF, Tab 22 at 4. To that end, it has instituted an on-call program, under
     which covered employees, on a volunteer or rotating basis, are required to be on
     call to report to the job site within 2 hours in the event of an after-hours
     emergency.     Id. at 4-5.     The memorandum sets forth the requirements for
     employees    in   on-call    status   and   the   terms   and   conditions   concerning
     implementation of the program. Id. at 5-6. The appellants argue that, had the
     agency followed the memorandum of agreement, it would not have furloughed
     them, for if there were an emergency requiring on-call employees to report to
     duty during a furlough day, the employees would have been prevented from
     coming to work. PFR File, Tab 2 at 3.
                                                                                       5

¶7         We disagree. To prove that the agency committed harmful procedural error
     under 5 U.S.C. § 7701(c)(2)(A), the appellants must show both that the agency
     committed procedural error and that the error was harmful. Parker v. Defense
     Logistics Agency, 1 M.S.P.R. 505, 513 (1980).          As the administrative judge
     explained, the agency committed no procedural error because nothing in the
     memorandum of agreement requires the agency to place employees in an on-call
     status.     ID at 7.   It merely governs the terms and conditions of the on-call
     program.       Therefore, even if the agency suspended the on-call program to
     implement the furlough, as the appellants alleged below, Collis IAF, Tab 8 at 4,
     Tab 26 at 6, this did not constitute a violation of the memorandum of agreement.
     There is simply nothing in the memorandum that requires the agency to keep its
     employees in an on-call status or that prevents it from suspending or
     discontinuing the on-call program in favor of having contractor employees
     assume those duties, as the appellants alleged that the agency did below.
     Collis IAF, Tab 8 at 4, Tab 26 at 6. We find that, because the appellants have not
     established that the agency violated the memorandum of agreement, they have not
     proven their harmful error defense. See Hylick v. Department of the Air Force,
     85 M.S.P.R. 145, ¶ 13 (2000).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
               The initial decision, as supplemented by this Final Order, constitutes the
     Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
     request review of this final decision by the U.S. 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
                                                                                  6

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 U.S. 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 U.S. 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 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
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.
                                                              7


                            APPENDIX A

                         NAVFAC - DeBerry II
                         DC-0752-15-0690-I-1


Alan C. Johnson                         DC-0752-13-2827-I-1
Allan W. Wright                         DC-0752-13-2804-I-1
Anthony Williams                        DC-0752-13-2138-I-1
Brian D. Calvert                        DC-0752-13-2433-I-1
Brian G. Jerlin                         DC-0752-13-4348-I-1
Bruce W. Harrod                         DC-0752-13-2820-I-1
Bryan D. Vanlandingham                  DC-0752-13-2668-I-1
Calvin R. Spence                        DC-0752-13-2872-I-1
Caroll W. Foster                        DC-0752-13-2202-I-1
Carroll L. Howard                       DC-0752-13-2817-I-1
Cary D. Jackson                         DC-0752-13-2788-I-1
Charles K. Fetty                        DC-0752-13-2422-I-1
Charles W. Ackerman                     DC-0752-13-2413-I-1
Christopher L. Spelce                   DC-0752-13-2384-I-1
Clair G. Swegan                         DC-0752-13-2147-I-1
Clement M. Tuttle                       DC-0752-13-2389-I-1
Cornelius J. Drake                      DC-0752-14-0076-I-1
Damon Showers                           DC-0752-13-2985-I-1
Dan B. Norton                           DC-0752-13-2417-I-1
Darius R. Jordan                        DC-0752-13-2683-I-1
David L. Murphy                         DC-0752-13-2420-I-1
David L. Pettaway                       DC-0752-13-3020-I-1
David M. Horner                         DC-0752-13-2812-I-1
David P. McLendon                       DC-0752-13-2662-I-1
                                            8


Dennis A. Young       DC-0752-13-2808-I-1
Derrick J. Sampson    DC-0752-13-2838-I-1
Donna M. Harden       DC-0752-13-4286-I-1
Douglas W. Humphrey   DC-0752-13-4373-I-1
Edward E. Kemper      DC-0752-13-2663-I-1
Elliot L. Carlton     DC-0752-13-2421-I-1
Eric A. Geba          DC-0752-13-2398-I-1
Eyvine Harris         DC-0752-13-2888-I-1
Foluke M. Alvarez     DC-0752-13-4735-I-1
Frederick E. Conley   DC-0752-13-3018-I-1
Gary W. Sawyer        DC-0752-13-2860-I-1
George V. Dimas       DC-0752-13-2904-I-1
Gregory L. Taylor     DC-0752-13-2146-I-1
Harry D. Roberson     DC-0752-13-2681-I-1
James A. Haith        DC-0752-13-2449-I-1
James M. Morris       DC-0752-13-2211-I-1
Jason M. Brader       DC-0752-13-2145-I-1
Jason M. Treitel      DC-0752-13-4784-I-1
Jay Harmor            DC-0752-13-2144-I-1
Jeffery R. Rash       DC-0752-13-2341-I-1
Jeffrey A. Collis     DC-0752-13-2344-I-1
John A. Hugo          DC-0752-13-2200-I-1
John E. Lancer        DC-0752-13-2826-I-1
John F. Turner        DC-0752-13-3009-I-1
John G. Manall        DC-0752-13-2834-I-1
Joseph F. Smith       DC-0752-13-2435-I-1
Joseph J. Smith       DC-0752-13-2441-I-1
Joseph W. Talarico    DC-0752-13-2431-I-1
Joshua D. Dozier      DC-0752-13-2841-I-1
                                           9


Justin A. Nyhaug     DC-0752-13-4861-I-1
Justin T. Brooks     DC-0752-13-2148-I-1
Kenneth H. Wolfe     DC-0752-13-2388-I-1
Kevin R. Haselbush   DC-0752-13-2450-I-1
Kiona N. Boyd        DC-0752-13-2833-I-1
LaVar M. Bates       DC-0752-13-4841-I-1
Larry D. Brown       DC-0752-13-2801-I-1
Larry N. Joseph      DC-0752-13-2443-I-1
Leslie E. Beliles    DC-0752-13-2412-I-1
Mark E. Stankavich   DC-0752-13-2829-I-1
Mark N. Ahrens       DC-0752-13-2338-I-1
Mary Jane Atherton   DC-0752-13-4845-I-1
Matthew L. Wade      DC-0752-13-2407-I-1
Matthew O'Connor     DC-0752-13-2356-I-1
Michael G. South     DC-0752-13-2830-I-1
Michael Matern       DC-0752-13-2348-I-1
Nathaniel Pringle    DC-0752-13-2419-I-1
Orville R. Theel     DC-0752-13-4807-I-1
Paul E. Vaughan      DC-0752-13-2437-I-1
Paul H. Eley         DC-0752-13-2438-I-1
Perry W. Babb        DC-0752-13-4798-I-1
Ramdeo Ramlatchan    DC-0752-13-2894-I-1
Randy B. Ives        DC-0752-13-2353-I-1
Ray W. Walker        DC-0752-13-2805-I-1
Raymond L. Wine      DC-0752-13-2828-I-1
Rebecca J. Luce      DC-0752-13-2386-I-1
Robert A. Flora      DC-0752-13-2141-I-1
Robert E. Lawless    DC-0752-13-2822-I-1
Robert G. Tucker     DC-0752-13-2436-I-1
                                            10


Robert J. Kneip       DC-0752-13-2418-I-1
Robert L. Savant      DC-0752-13-2839-I-1
Robert N. Collins     DC-0752-13-2177-I-1
Robert P. D'Adamo     DC-0752-13-2334-I-1
Robert S. Rawls       DC-0752-13-2980-I-1
Roger D. Papenfuhs    DC-0752-13-2399-I-1
Ronald A. Smith       DC-0752-13-2410-I-1
Ronald P. Dick        DC-0752-13-2140-I-1
Ronald Ricks          DC-0752-13-2865-I-1
Sanny J. Cogliandro   DC-0752-13-2181-I-1
Shante Gilliehan      DC-0752-13-2355-I-1
Stephen C. Coston     DC-0752-13-6832-I-1
Terry L. Seymour      DC-0752-13-4409-I-1
Thomas H. Richard     DC-0752-13-2423-I-1
Thomas W. Parker      DC-0752-13-3014-I-1
Todd G. Cologgi       DC-0752-13-2924-I-1
Torel L. Turner       DC-0752-13-3017-I-1
Troy A. Jordan        DC-0752-13-2440-I-1
Wallace O. Hendrix    DC-0752-13-2831-I-1
Wayne T. Cheatham     DC-0752-13-2408-I-1
William E. Clark      DC-0752-13-2844-I-1
William J. Langlois   DC-0752-13-6834-I-1
William S. Lanagan    DC-0752-13-4772-I-1
Willie E. Young       DC-0752-13-2387-I-1
Willie L. McCutchen   DC-0752-13-2898-I-1
