                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


MARINE CORPS RECRUITING                         DOCKET NUMBER
  COMMAND II, 1                                 DC-0752-15-0346-I-1
              Appellants,

             v.
                                                DATE: November 4, 2015
DEPARTMENT OF THE NAVY,
            Agency.



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Duane Zezula, Woodbridge, Virginia, pro se.

      Thomas Hudson, Stafford, Virginia, pro se.

      Troy Michael Pugh, Fredericksburg, Virginia, pro se.

      Frederick Congdon and Tracey Rockenbach, Esquire, Washington, D.C.,
        for the agency.


                                      BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
  Pursuant to 5 U.S.C. § 1201.36(a), this appeal is a consolidation of the individual
appeals set forth in Appendix A.
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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                      FINAL ORDER

¶1         The appellants have filed a petition for review of the initial decision, which
     affirmed their furloughs.   Generally, we grant petitions such as this one only
     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 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, 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.   Except as expressly MODIFIED by this Final Order to
     incorporate an analysis of the appellants’ due process claim, we AFFIRM the
     initial decision.

                                      BACKGROUND
¶2         On or around May 28, 2013, the agency proposed to furlough the appellants,
     employees of the U.S. Marine Corps at the agency’s Marine Corps Recruiting
     Command in Quantico, Virginia, for no more than 11 workdays due to
     “extraordinary and serious budgetary challenges facing the Department of
     Defense . . . for the remainder of Fiscal Year . . . 2013, the most serious of which
     is the sequester that began March 1, 2013.” Consolidation Appeal File (CAF),
     Tab 5 at 4-6. The agency issued decisions on or around July 1, 2013, furloughing
     the appellants for 11 workdays (later reduced to 6 days). Id. at 7-9; Department
     of the Navy Administrative Record for FY 2013 Furlough Appeals (AR), Part 1,
     Tab 3, available at http://www.mspb.gov/furloughappeals/navy2013.htm.           The
                                                                                              3

     appellants filed appeals that were consolidated by the administrative judge. CAF,
     Tab 1.      The appellants withdrew their request for a hearing, and the
     administrative judge issued an initial decision affirming the furloughs.             CAF,
     Tab 11, Initial Decision (ID).
¶3         The appellants have filed a joint petition for review. 3           E.g., Zezula v.
     Department of the Navy, MSPB Docket No. DC-0752-13-1764-I-1, Petition for
     Review (PFR) File, Tab 1.

                                           ANALYSIS
     The agency met its burden of proving that the furloughs promoted the efficiency
     of the service.
¶4         A furlough is the placing of an employee in temporary status without duties
     and pay because of lack of work or funds or other nondisciplinary
     reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or less
     are reviewable by the Board under the “efficiency of the service” standard
     of 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.
     163, ¶ 5 (2013). The Board has found that an agency satisfies the efficiency of
     the service standard by showing, in general, that the furlough was a reasonable
     management solution to the financial restrictions placed on it and the agency
     applied its determination as to which employees to furlough in a “fair and even
     manner.” Id., ¶ 8.
¶5         The appellants argue that the furloughs were arbitrary and carried out
     purely for political purposes. PFR File, Tab 1 at 7-8. To support this argument,
     the appellants have stated that sufficient funding was available to avoid the
     furloughs as evidenced by the unobligated funds the Department of Defense
     (DOD) returned to the Department of the Treasury at the end of Fiscal Year 2013.


     3
       Each appellant filed a petition for review in his individual appeal. These petitions for
     review appear to be identical and are signed by all appellants. For the purpose of
     clarity, we only cite to the petition for review filed in Zezula v. Department of the Navy,
     MSPB Docket No. DC-0752-13-1764-I-1.
                                                                                     4

     Id. We agree with the administrative judge’s finding that the agency had to make
     significant spending cuts because of sequestration, and that the furloughs, in
     conjunction with other measures, helped it avoid a deficit.     ID at 15.    Even
     assuming, as the appellants argue, that the agency had surplus funds at the end of
     the fiscal year, this does not mean that the agency had no deficit to remedy when
     it decided to furlough employees.      Because furlough decisions are inherently
     prospective, it is immaterial whether subsequent events ameliorated the agency’s
     budgetary concerns. Einboden v. Department of the Navy, No. 2015-3117, 2015
     WL 5730370, at *3 (Fed. Cir. Oct. 1, 2015). The appellants argue that the agency
     could have made an earlier decision to reprogram funds to avoid furloughs. PFR
     File, Tab 1 at 18-19. Even if this were true, the Board will not second guess an
     agency’s decision to meet its need for spending cuts through furloughs rather than
     other cost-savings measures. Chandler, 120 M.S.P.R. 163, ¶ 9; see Einboden,
     2015 WL 5730370, at *2 (stating that the court will not second guess agency
     decisions as to how to prioritize funding when faced with a budget shortfall). We
     agree with the administrative judge’s finding that the agency established that the
     DOD faced a lack of funds and that the furlough actions were a reasonable
     management solution to the problem. ID at 15-16; see Yee v. Department of the
     Navy, 121 M.S.P.R. 686, ¶ 14 (2014).
     The appellants were provided with the required due process.
¶6        The appellants argue that they were denied due process because the
     deciding official had no discretion to take an action different from furloughing
     the appellants. PFR File, Tab 1 at 9-12. The deciding official stated that he had
     the authority to: modify the furloughs if he determined that an individual held a
     position subject to one of the exceptions established by the DOD; recommend to
     the Assistant Secretary of the Navy (Manpower and Reserve Affairs) through his
     chain of command a modification of the furlough if he concluded that the position
     at issue should be subject to an exception previously not recognized; and adjust
                                                                                       5

     the furlough schedules. 4 CAF, Tab 5 at 10. Prior to rendering his decision, he
     considered the proposal notices, the supporting documents, and any written or
     oral replies. Id. Given the context of agency-wide furloughs, we find that the
     agency satisfied its obligation to afford the appellants due process. See Kelly v.
     Department of the Army, 121 M.S.P.R. 408, ¶ 9 (2014).
¶7        The agency stipulated that, if a hearing had been held, the deciding official
     would have testified that he believed he had no authority to exempt anyone from
     furloughs unless they met the Secretary of Defense’s established exception
     criteria. CAF, Tab 9 at 8. The agency also stipulated that the deciding official
     would have testified that he believed he had no discretion regarding who to
     furlough because none of his subordinates met the criteria for exception specified
     by the Secretary of Defense, and that if it had been up to him he would have
     exempted all of the appellants. Id. Although these stipulations reflect that the
     deciding official had limited discretion, due process does not require that a
     deciding official have the unfettered discretion to take any action he or she
     believes is appropriate upon considering the proposed adverse action. Rodgers v.
     Department of the Navy, 122 M.S.P.R. 559, ¶¶ 5-8 (2015).
¶8        The appellants also argue that they were not given an opportunity to appeal
     to the Secretary of Defense, whom they believe was the “real” deciding official.
     PFR File, Tab 1 at 11-12. Assuming arguendo that the appellants’ contention,
     that the Secretary of Defense was the “real” deciding official is correct, 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. See
     Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 24 (2014). We find that
     the agency provided appropriate due process in the context of DOD-wide


     4
      The deciding official uses the term “exemptions” although the DOD’s May 14, 2013
     memorandum refers to categorical “exceptions.” AR, Part 1, Tab 12.
                                                                                      6

     furloughs, even if the appellants were not given an opportunity to submit
     responses directly to the Secretary of Defense. See id., ¶¶ 24-25.
     The appellants have not shown that the agency committed harmful procedural
     error.
¶9        Although we have found no constitutional violation, we still must consider
     whether     the    agency     committed      a    harmful     procedural     error.
     Rodgers, 122 M.S.P.R. 559, ¶ 10.          The appellants argue that the agency
     committed harmful procedural error by following the Secretary of Defense’s
     directive when the Secretary of the Navy had determined that furloughs were
     unnecessary for his military department. PFR File, Tab 1 at 12. The appellants
     made this same argument below, and we agree with the administrative judge’s
     finding that there was no error in the agency’s procedures. ID at 16-17. The
     appellants were entitled to the procedural protections afforded to them by statute,
     regulation, and agency procedures.     Rodgers, 122 M.S.P.R. 559, ¶ 10.        The
     appellants have not identified any statute, regulation, or agency procedure that
     required the Secretary of the Navy to independently evaluate whether furloughs
     would meet the efficiency of the service. See Yee, 121 M.S.P.R. 686, ¶ 14 (noting
     that although the agency is separately organized under the Secretary of Defense,
     it operates under DOD’s authority, direction, and control, and finding that it was
     reasonable for DOD to consider its budget holistically rather than isolating each
     individual military department). The agency followed its established procedure
     and allowed individual deciding officials to apply DOD’s exceptions on a case-
     by-case basis. See Rodgers, 122 M.S.P.R. 559, ¶ 11. Moreover, harmful error is
     an error by the agency in the application of its procedures 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. 5 C.F.R. § 1201.4(r). As correctly
     found by the administrative judge, the appellants have not shown that the agency
     would have reached a different conclusion if different procedures had been used.
     ID at 17.
                                                                                        7

¶10        Based on the foregoing, we agree with the administrative judge’s finding
      that the agency proved by preponderant evidence that the furlough actions
      promoted the efficiency of the service, the appellants were provided appropriate
      due process, and the appellants did not show that the agency committed a harmful
      procedural error. Accordingly, we affirm the initial decision as modified.

                         NOTICE TO THE APPELLANTS 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 United States Court of Appeals for the
      Federal Circuit.     You must submit your request to the court at the following
      address:
                                  United States Court of Appeals
                                      for the Federal Circuit
                                    717 Madison Place, N.W.
                                     Washington, DC 20439

      The court must receive your request for review no later than 60 calendar days
      after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
      2012). If you choose to file, be very careful to file on time. The court has held
      that normally it does not have the authority to waive this statutory deadline and
      that filings that do not comply with the deadline must be dismissed. See Pinat v.
      Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
      court, you should refer to the Federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
      Dec. 27, 2012). You may read this law as well as other sections of the United
      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
                                                                                  8

for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
      If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at   http://www.mspb.gov/probono       for     information   regarding   pro   bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit.   The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.




FOR THE BOARD:                               ______________________________
                                             William D. Spencer
                                             Clerk of the Board
Washington, D.C.
                                                              9

                            APPENDIX A

                  Marine Corps Recruiting Command II
                         DC-0752-15-0346-I-1


Duane L. Zezula                         DC-0752-13-1764-I-1
Thomas Hudson                           DC-0752-13-1160-I-1
Troy Michael Pugh                       DC-0752-13-1749-I-1
