                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     THADDEUS L. WALLACE, 1                          DOCKET NUMBER
                  Appellant,                         AT-0752-13-4278-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: June 4, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           Joshua Klinger, Esquire, Denver, Colorado, for the appellant.

           Anthony Coggin, Esquire, Eglin Air Force Base, Florida, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s furlough decision. Generally, we grant petitions such as
     this one only when: the initial decision contains erroneous findings of material

     1
      Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. Eglin Air
     Force Base, Group 2 v. Department of the Air Force, MSPB Docket No. AT-0752-14-
     0303-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
     but such orders have no precedential value; the Board and administrative judges are not
     required to follow or distinguish them in any future decisions. In contrast, a
     precedential decision issued as an Opinion and Order has been identified by the Board
     as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
                                                                                       2

     fact; the initial decision is based on an erroneous interpretation of statute or
     regulation or the erroneous application of the law to the facts of the case; the
     judge’s rulings during either the course of the appeal or the initial decision were
     not consistent with required procedures or involved an abuse of discretion, and
     the resulting error affected the outcome of the case; or new and material evidence
     or legal argument is available that, despite the petitioner’s due diligence, was not
     available when the record closed. See Title 5 of the Code of Federal Regulations,
     section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
     appeal, and based on the following points and authorities, we conclude that the
     petitioner has not established any basis under section 1201.115 for granting the
     petition for review. Therefore, we DENY the petition for review and AFFIRM
     the initial decision, which is now the Board’s final decision.             5 C.F.R.
     § 1201.113(b).

                                      BACKGROUND
¶2        On or about May 28, 2013, the agency proposed to furlough the appellant,
     an Electronics Technician, for no more than 11 workdays due to “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 1 March 13.” Initial Appeal File (IAF), Tab 1 at 10. The notice
     identified a website where the material supporting the proposed furlough could be
     viewed and stated that in the alternative the appellant could contact his local
     civilian personnel section to review the material. Id. at 11. The notice also stated
     “[t]o arrange for an oral reply or review the supporting materials, please contact
     the individuals listed below” and included a phone number and email address of a
     contact person. Id. The notice stated that the appellant would be allowed up to
     4 hours of official time to review the supporting material, seek assistance, prepare
     a reply, secure affidavits and statements, consider appropriate courses of action,
     and make a response. Id. The appellant provided both a written and an oral reply
                                                                                          3

     to the notice of proposed furlough. IAF, Tab 4 at 25-26, Tab 6 at 6-8. By written
     notice dated June 24, 2013, the agency’s deciding official informed the appellant
     that he would be furloughed as outlined in the notice of proposed furlough. IAF,
     Tab 1 at 12-13. The record includes evidence reflecting the appellant’s furlough
     on 6 discontinuous days between July 8, 2013, and September 30, 2013. IAF,
     Tab 4 at 4, 8, Tab 5 at 8-15.
¶3         The appellant filed a Board appeal challenging the agency’s action, IAF,
     Tab 1, and the administrative judge consolidated his appeal with the appeals of
     similarly situated employees, Elgin Air Force Base, Group 2 v. Department of the
     Air Force, MSPB Docket No. AT-0752-14-0303-I-1, Consolidated Appeal File
     (CAF), Tab 1. After holding a hearing, the administrative judge issued an initial
     decision affirming the agency’s furlough actions. CAF, Tab 10, Initial Decision
     (ID). The administrative judge found, among other things, that the furlough was
     implemented in accordance with due process requirements and that the appellant
     had not proven that the agency committed a harmful procedural error. ID at 8-12.
¶4         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.   The agency has filed a response in opposition to the appellant’s
     petition.   PFR File, Tab 3.     The appellant has filed a reply to the agency’s
     response. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5         The appellant raises a single issue on review: whether the agency denied
     him due process by not providing him with access to the material supporting the
     proposed furlough.      PFR File, Tab 1 at 6-10. 3        The administrative judge
     considered these same arguments below, finding that the appellant failed to prove
     that the agency denied him due process.            ID at 8-11.      Specifically, the

     3
        The appellant does not challenge, and we discern no reason to disturb, the
     administrative judge’s findings that the agency’s furlough was a reasonable
     management solution to the shortage of funds caused by sequestration, promoted the
     efficiency of the service, and was applied in a fair and even manner. ID at 5-7, 14-17.
                                                                                         4

     administrative judge found that the record did not support the appellant’s claim
     that he was denied access to the relied upon materials because he was given
     adequate instruction on how to access them. ID at 9 & n.7. The administrative
     judge further analyzed this claim to determine if the appellant proved that the
     agency committed harmful procedural error.      ID at 11-12. The administrative
     judge found that, because the agency made the supporting information available
     online, the appellant failed to prove that the agency committed harmful error by
     not also providing him with a copy of the material. ID at 12. In his petition for
     review, the appellant argues that the administrative judge erred in analyzing the
     due process claim. PFR File, Tab 1 at 9-10. The appellant also argues that the
     administrative judge erred by applying the harmful error analysis to his claim that
     the agency failed to provide him the material it relied on in making its furlough
     decision. Id. at 6.

     The appellant was provided with the required due process.
¶6         Prior notice and an opportunity to respond are the fundamental due process
     requirements before a tenured public employee is furloughed.             Ronso v.
     Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015) (discussing due process
     in the context of a furlough appeal). The appellant argues that the administrative
     judge erred by not analyzing his due process claim independently from the issue
     of harmful procedural error. PFR File, Tab 1 at 6. The administrative judge
     considered the appellant’s due process claim and found that the agency satisfied
     the requirements of due process by providing him with advance written notice of
     the proposed furlough, access to the material supporting the agency’s proposed
     furlough, and an opportunity to provide both written and oral responses. ID at 9.
     We find no error in the administrative judge’s analysis of the due process claim.
¶7         The appellant alleges that the agency’s website containing the supporting
     materials was difficult to navigate, but the agency also stated in the notice of
     proposed furlough that he could access the material by contacting his local
     civilian personnel section. IAF, Tab 1 at 11. The Chief of Employee Relations in
                                                                                         5

     the civilian personnel section was not aware of any employee contacting the
     section in order to review the material. CAF, Tab 7 at 8. The appellant testified
     that he did not contact the civilian personnel section to access the material.
     Hearing Compact Disc (HCD).        Rather, the appellant informed the designated
     reply official that he could not find a link on the website provided for “supporting
     material.” IAF, Tab 8 at 7; see IAF, Tab 4 at 21. The next day, that official told
     him that the supporting material could be found under the link “Administrative
     Record.” IAF, Tab 8 at 16. The appellant admitted during the hearing that when
     he used the “Administrative Record” link he was able to access the material.
     HCD. The appellant replied orally to the proposed furlough on June 17, 2013.
     IAF, Tab 4 at 25-26, Tab 5 at 4. The appellant did not review the material prior
     to his oral reply. HCD. The agency may have been able to make the material
     easier to access, but its failure to do so does not rise to the level of a due process
     violation. The material relied on in proposing the furlough was available on the
     website.   A copy of the materials also was available in the civilian personnel
     section for review.    Based on the foregoing, we find no basis to disturb the
     administrative judge’s finding that the agency provided the appellant with due
     process.

     The agency did not commit harmful procedural error in processing the appellant’s
     furlough.
¶8         A notice of proposed furlough must inform the employee of his or her right
     to review the material that is relied on to support the reasons for the furlough.
     Salo v. Department of Defense, 122 M.S.P.R. 417, ¶ 9 (2015); 5 C.F.R.
     § 752.404(b). Although we have found no constitutional violation, we must still
     consider whether the agency committed harmful procedural error by failing to
     follow the regulatory procedures set forth at 5 C.F.R. § 752.404(b). See Stone v.
     Federal Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999)
     (stating that in addition to the protections afforded by the Constitution, public
     employees also are entitled to whatever other procedural protections are afforded
                                                                                      6

      them by statute, regulation,     or agency procedure); Pumphrey v. Department
      of Defense, 122 M.S.P.R. 186, ¶ 9 (2015). The appellant was told that he could
      access the material supporting the agency’s furlough decision on the website
      “http://myPers.af.mil.” IAF, Tab 1 at 11. The record includes a printout of this
      website that contains multiple links both related and unrelated to the furlough.
      IAF, Tab 9, Hearing Exhibit 1.     The appellant testified that he had difficulty
      navigating the website.   HCD.    He further testified that he clicked on various
      links looking for the material and some of the links would not load immediately.
      He also testified that the proposal notice referenced “supporting material” but
      there was no link on the website specifically labeled “supporting material” on the
      website. He testified, moreover, that he called the phone number provided in the
      proposal notice for questions about accessing the supporting material, but the
      phone number was incorrect.
¶9         We agree with the administrative judge’s finding that the appellant failed to
      prove that the agency committed harmful procedural error. Harmful error is a
      procedural error by the agency that is likely to have caused the agency to reach a
      conclusion different from the one it would have reached in the absence or cure of
      the error.   See 5 C.F.R. § 1201.56(c)(3); see also Salter v. Department of the
      Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). To show harmful error, an appellant must
      prove that any procedural error substantially prejudiced his rights by possibly
      affecting the agency’s decision. Salter, 92 M.S.P.R. 355, ¶ 7.
¶10        Making supporting material available on a website can satisfy the agency’s
      obligation under 5 C.F.R. § 752.404(b). See Salo, 122 M.S.P.R. 417, ¶ 9 (finding
      the agency satisfied its obligation under 5 C.F.R. § 752.404(b) to make the
      material relied on to support the reasons for a furlough available for review when
      the proposal notice advised the employee how to view the material at an agency
      website); see also Pumphrey, 122 M.S.P.R. 186, ¶ 7 n.2 (when the notice of
      proposed furlough informed the employee how to view the supporting material on
      an agency website or at a designated Furlough Reading Room, the appellant’s
                                                                                      7

      vague statement that he was not given predecisional access to the material relied
      upon in the notice of proposed furlough did not support a finding of harmful
      procedural error).
¶11        The appellant has not shown how receiving a printed copy of the material
      supporting the proposed furlough would have changed the content of his replies
      and caused the agency to reach a different conclusion. The appellant had not
      reviewed the material prior to the hearing and, when asked by the administrative
      judge, could not testify as to what in the material he would have addressed in his
      responses to the proposed furlough that may have changed the outcome. HCD.
      Again on review the appellant has made general arguments about the agency’s
      obligation to make the material available for review but has not shown how he
      actually was harmed by the procedures the agency used in implementing the
      furlough. See Pumphrey, 122 M.S.P.R. 186, ¶¶ 10-11 (to show harmful error, an
      appellant must provide proof of actual harm resulting from an agency’s
      procedures). Therefore, we agree with the administrative judge’s finding that the
      appellant failed to prove that the agency committed a harmful error.

                      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
                                                                                  8

and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
     If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States   Code,     at   our    website,   http://www.mspb.gov/appeals/uscode.htm.
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 your appeal to
the 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.
