                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 45

                             Docket No. DC-0752-13-0799-I-1

                                 Stephen M. Rodgers, 1
                                        Appellant,
                                             v.
                                Department of the Navy,
                                         Agency.
                                       July 23, 2015

           Stephen M. Rodgers, Williamsburg, Virginia, pro se.

           Tracey Rockenbach, Esquire, Washington Navy Yard, D.C., for the agency.

                                         BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s furlough action. 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 5 C.F.R. § 1201.115 for granting
     the petition for review.    Therefore, we DENY the petition for review and
     AFFIRM the initial decision.

     1
       Pursuant to 5 U.S.C. § 1201.36(a), this appeal was part of a consolidation. Navy
     Munitions Command I v. Department of the Navy, MSPB Docket No. DC-0752-14-
     0383-I-1.
                                                                                       2

                                      BACKGROUND
¶2         On May 29, 2013, the agency proposed to furlough the appellant, an
     Attorney Advisor at the Navy Munitions Command (NMC) in Yorktown,
     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 on
     March 1, 2013.” Initial Appeal File (IAF), Tab 1 at 7-9. On May 29, 2013, the
     appellant responded in writing to the notice of proposed furlough. IAF, Tab 3
     at 5-6. On June 3, 2013, the deciding official, who was the Commander of NMC,
     requested that the entire NMC be subject to an exception to the proposed
     furlough. Navy Munitions Command I v. Department of the Navy, MSPB Docket
     No. DC-0752-14-0383-I-1, Consolidated Appeal File (CAF), Tab 3 at 32. The
     deciding official’s request for an organization-wide exception was denied by the
     Director of the Navy Staff. Id. at 33-35. By written notice dated June 24, 2013,
     the deciding official notified the appellant that he would be furloughed as
     outlined in the proposal notice. IAF, Tab 1 at 10-12. The agency later reduced
     the duration of the furlough from 11 days to 6 days. 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 appellant
     was furloughed on 6 nonconsecutive days. IAF, Tab 9 at 5-10.
¶3         The appellant filed an appeal, which the administrative judge consolidated
     with the appeals of similarly situated employees. CAF, Tab 1. After holding a
     hearing, the administrative judge issued an initial decision affirming the furlough.
     CAF, Tab 14, Initial Decision (ID).
¶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 for review.   PFR File, Tab 2.    The appellant has filed a reply to the
     agency’s response. PFR File, Tab 4.
                                                                                        3

                                         ANALYSIS

     The appellant was provided with the required due process.
¶5         The appellant argues that he was denied due process because the deciding
     official lacked any actual decision-making authority. PFR File, Tab 1 at 4-5.
     Procedural due process rights derive from a property interest in which an
     individual has a legitimate claim of entitlement. Gajdos v. Department of the
     Army, 121 M.S.P.R. 361, ¶ 13 (2014). The appellant has a legitimate claim of
     entitlement to retention in pay status, and thus a property interest, pursuant to
     5 U.S.C. §§ 7512(5) and 7513(a), which conditions his placement in a temporary
     status without duties and pay on such cause as will promote the efficiency of the
     service.   See Gajdos, 121 M.S.P.R. 361, ¶¶ 13-14.          Having found that the
     appellant has a property interest at stake in this appeal, the question remains as to
     what process is due, and whether the procedure the agency applied satisfied the
     mandates of due process. Id., ¶ 14.
¶6         Due process is a flexible concept that calls for such procedural protections
     as the particular situation demands. See, e.g., Gajdos, 121 M.S.P.R. 361, ¶ 18;
     Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 16, 19 (2014).
     The appellant does not dispute that he received prior notice and an opportunity to
     respond, but argues that he was not provided a meaningful opportunity to respond
     because the deciding official was not empowered to make any decision except to
     uphold the proposed furlough.       PFR File, Tab 1 at 13-15.       To support his
     argument, the appellant relies on McGriff v. Department of the Navy,
     118 M.S.P.R. 89 (2012), in which the Board held that constitutional due process
     requires that the deciding official have authority to take or recommend agency
     action based on the reply.     McGriff, 118 M.S.P.R. 89, ¶ 33.        Since issuing
     McGriff, the Board has clarified that due process does not require that the
     deciding official have the unfettered discretion to take any action he or she
     believes is appropriate upon considering the proposed adverse action.            See
     Putnam v. Department of Homeland Security, 121 M.S.P.R. 532, ¶ 12 (2014); see
                                                                                             4

     also Buelna, 121 M.S.P.R. 262, ¶ 27 (stating that due process does not demand
     that the deciding official consider alternatives that are prohibited, impracticable,
     or outside of management’s purview).
¶7         The Department of Defense issued guidance identifying categories of
     employees who would not be subjected to the furlough. 2 AR, Part 1, Tab 12. The
     agency described these categories as “limited exceptions driven by law and by the
     need to minimize harm to mission execution.”              Id.   The agency instructed
     deciding officials to consider all employee replies and grant relief if one of these
     categorical exceptions applied, or another basis for granting individual relief
     existed under applicable law or the guidance provided by the Office of the
     Secretary of Defense. AR, Part 1, Tab 6 at 38 of 135. The undisputed evidence
     in the record establishes that the deciding official requested that his entire
     organization be excepted from the furlough due to its responsibility for safely
     moving ordnance, but the Director of the Navy Staff denied his request
     concluding that “[s]ufficient flexibilities exist to manage workload requirements
     and scheduling of furlough days should emergent situations arise.” CAF, Tab 3
     at 32-34. The deciding official testified that, after hearing the replies, he could
     have decided that individual employees met the criteria for one of the categorical
     exceptions.    PFR File, Tab 2 at 73-75; see Gajdos, 121 M.S.P.R. 361, ¶ 21
     (noting that the agency’s procedures ensured that the appellant did not fall within
     a furlough exemption).       The deciding official also could have recommended
     modification of the furlough if he concluded that an employee should be subject
     to an exception not previously recognized. AR, Part 1, Tab 2, ¶ 12. The deciding
     official’s authority was limited in the sense that he could not have granted an
     organization-wide exception to the furlough for NMC.                 But he possessed
     sufficient decision-making authority in the context of this agency-wide furlough

     2
       The initial decision and the parties also refer to the categorical exceptions delineated
     in the Department of Defense’s May 14, 2013 memorandum as “exemptions.”
                                                                                           5

     to satisfy the appellant’s right to due process. 3 See Gajdos, 121 M.S.P.R. 361,
     ¶¶ 20-23, 25 (finding that the procedures used by the agency did not deprive the
     appellant of constitutional due process even where the deciding official’s
     discretion to invoke alternatives to the furlough was limited); cf. Putnam,
     121 M.S.P.R. 532, ¶ 12 (the right to due process is not violated by a deciding
     official’s limited authority to select a penalty other than the proposed indefinite
     suspension for the revocation of a security clearance).
¶8         The appellant argues that the agency did not identify a “multi-tiered”
     decision-making process similar to the process utilized in Gajdos, and therefore
     the administrative judge’s reliance on Gajdos was not appropriate.           PFR File,
     Tab 1 at 26. We do not agree. The agency’s guidance to deciding officials gave
     them the authority to make decisions regarding individual furlough actions
     consistent with the organizational and categorical exceptions previously
     established by the Secretary of Defense. AR, Part 1, Tab 2, ¶¶ 5-13, Tab 6 at 38
     of 135.    Any major variations from this guidance required coordination in
     advance with the Assistant Secretary of the Navy, Manpower and Reserve
     Affairs. AR, Part 1, Tab 8 at 50 of 135.
¶9         The appellant believes that the administrative judge erred by finding
     significant the fact that the deciding official used “Command Letterhead” to
     request an organization-wide exception to the furlough.             PFR File, Tab 1
     at 14-15. However, the initial decision does not mention the use of letterhead.
     See ID at 10-12. The initial decision correctly finds that the deciding official
     testified that he requested the organization-wide exception for all 1,000 NMC
     civilian employees, not just the 15 employees for whom he was designated as the
     deciding official. Id.; PFR File, Tab 2 at 73-75. He went on to testify that none


     3
       In addition to the predeprivation opportunity to respond to the deciding official, the
     appellant also has had the opportunity to seek post-deprivation relief before the Board.
     See Gajdos, 121 M.S.P.R. 361, ¶ 25.
                                                                                         6

      of the employees for whom he had been designated as the deciding official
      individually met the criteria for the categorical exceptions.       PFR File, Tab 2
      at 76-77.
      The agency did not commit harmful procedural error in processing the appellant’s
      furlough.
¶10         Although we have found no constitutional violation, we must still consider
      whether the agency committed harmful procedural error. 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
      are also entitled to “whatever other procedural protections are afforded them by
      statute, regulation or agency procedure”); see also Pumphrey v. Department of
      Defense, 122 M.S.P.R. 186, ¶ 9 (2015). An agency is required to follow its own
      rules in effecting an adverse action, regardless of whether those rules go beyond
      the requirements of government-wide statutes and regulations. Canary v. U.S.
      Postal Service, 119 M.S.P.R. 310, ¶ 11 (2013).
¶11         In this case, the agency followed its procedures. The appellant argues that,
      by denying the deciding official the authority to apply one of the categorical
      exceptions to his entire organization, the agency failed to follow its own
      procedures. PFR File, Tab 1 at 26. However, the agency’s procedures delegated
      to deciding officials the authority to review individual employee replies and
      apply the approved categorical exceptions on a case-by-case basis. AR, Part 1,
      Tab 6 at 36-39 of 135. The deciding official testified that when he reviewed the
      individual replies to the proposed furlough none of the fifteen employees for
      whom he was designated as the deciding official met the criteria for an exception.
      PFR File, Tab 2 at 74-78. We find no support in the record for the proposition
      that the agency’s procedures for implementing the furlough granted individual
      deciding    officials   the   independent   authority   to   make   organization-wide
      exceptions to the furlough. See AR, Part 1, Tab 6 at 36-39 of 135.
                                                                                       7

      The agency did not treat the appellant differently than similarly situated
      employees.
¶12         A furlough of 30 days or less is 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 that the agency applied its determination as to which
      employees to furlough in a “fair and even manner.” 4 Id., ¶ 8 (quoting Clark v.
      Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984)). A fair and even
      manner means that the agency applied the furlough action uniformly and
      consistently. Id. An agency is not required to apply a furlough in such a way as
      to satisfy the Board’s sense of equity. Id. An agency is required to treat similar
      employees similarly and to justify any deviations with legitimate management
      reasons. Id.
¶13         The appellant argues that the administrative judge erred by relying on
      reduction-in-force (RIF) principles in determining who was similarly situated for
      the purposes of the furlough.    PFR File, Tab 1 at 19-20.     He argues that the
      administrative judge should have identified similarly situated employees utilizing
      the principles applied in conducting a disparate penalty analysis. Id. Furloughs
      are unique among adverse actions because by definition they are taken for
      nondisciplinary reasons and generally are used to address work or funding
      shortages or other matters that are not personal to the affected employee.
      Chandler, 120 M.S.P.R. 163, ¶ 8.        We find that the administrative judge’s
      reliance on RIF principles in determining which employees were similarly
      situated to the appellant was appropriate.    See id., ¶ 7; see also Weathers v.


      4
        The appellant does not contest that the furlough was a reasonable management
      solution to the financial restrictions placed on it. PFR File, Tab 1 at 5.
                                                                                       8

      Department of the Navy, 121 M.S.P.R. 417, ¶¶ 6, 8-9 (2014) (the Board is guided
      by RIF principles in making the determination of who is similarly situated in a
      furlough).
¶14         “Competitive area” principles may be used to determine who is similarly
      situated in a furlough.   See Weathers, 121 M.S.P.R. 417, ¶ 8.        Generally, a
      competitive area must be defined solely in terms of the agency’s organizational
      units and geographical location.       5 C.F.R. § 351.402(b).      The minimum
      competitive area is a subdivision of the agency under separate administration
      within the local commuting area. Id.
¶15         The appellant argues that the agency did not consistently impose the
      furlough among similarly situated employees because employees classified in his
      same series (GS-0905) who worked at the Norfolk Naval Shipyard in Portsmouth,
      Virginia, performing similar work were not furloughed. PFR File, Tab 1 at 5, 13,
      21; CAF, Tab 5 at 10. The appellant argues that relying on RIF principles to
      determine who is similarly situated in a furlough is a “litmus paper UIC and
      Supervisor approach.” 5 PFR File, Tab 1 at 20. The appellant’s argument is not
      persuasive. The shipyard employees were not in the appellant’s competitive area
      because they work in a different subdivision of the agency under separate
      administration. See generally CAF File, Tab 3 at 32-35 (NMC was treated as an
      independent subdivision of the agency for administration of the furlough). Thus,
      the appellant was not similarly situated to the attorneys assigned to the Norfolk
      Naval Shipyard for the purposes of this furlough, even if they performed similar
      duties.




      5
       UIC is an abbreviation for Unit Identification Code, which the agency might use to
      determine an employee’s source of funding.
                                                                                     9

      The agency fairly and evenly applied its exception for employees assigned to
      Navy shipyards and properly determined that exception did not apply to the
      appellant.
¶16         Employees assigned to Navy shipyards were subject to an explicit
      exception from the furlough by the Department of Defense “because it would be
      particularly difficult to make up delays in maintenance work on nuclear vessels
      and those vessels are critical to mission success.” AR, Part 1, Tab 12 at 110 of
      135. The appellant argues that the administrative judge erred in accepting the
      agency’s assessment that all of the employees assigned to the Norfolk Naval
      Shipyard should have been excepted from the furlough irrespective of their duties
      and responsibilities, but not also accepting his deciding official’s similar
      assessment of NMC. PFR File, Tab 1 at 15-16. The appellant’s argument fails to
      acknowledge that the exception applied to the shipyard employees was
      established by the Department of Defense’s guidance and was not the assessment
      of an individual deciding official regarding his own organization. In determining
      whether the agency structured a furlough in a fair and even manner, the Board
      will not scrutinize an agency’s decision in such a way that second-guesses the
      agency’s assessment of its mission requirements and priorities. Department of
      Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013), aff’d sub nom. Berlin v.
      Department of Labor, 772 F.3d 890 (Fed. Cir. 2014).      Rather, the Board will
      consider issues relating to uniform and consistent application of the furlough,
      including whether the agency used the furlough to target employees for personal
      reasons or attempted to exempt certain employees from the furlough without a
      legitimate management reason. Chandler, 120 M.S.P.R. 163, ¶ 9. There is no
      indication in the record that the appellant or other NMC employees were targeted
      for personal reasons or that the agency exempted any employees without a
      legitimate management reason. The Board will not second-guess the agency’s
      decision to except shipyard employees, but not NMC employees, based on its
      assessment of mission requirements and the appellant has not argued that he
                                                                                     10

      qualified for the exception for shipyard employees. Thus, we find no reason to
      disturb the administrative judge’s conclusion that the agency fairly and evenly
      applied the furlough in the appellant’s situation.
      The appellant has not identified any adjudicatory error that would warrant a
      different outcome.
¶17         The appellant alleges a number of what he has identified as “procedural
      irregularities” during the hearing process. PFR File, Tab 1 at 22-25. He claims
      that the administrative judge rescheduled the hearing to accommodate the agency,
      and he notes that the record does not reflect “what had to be ex parte
      proceedings” in which this request was made or that the appellants were prepared
      to proceed on the date that the hearing was originally scheduled. Id. at 22-23.
      Not all ex parte communications are prohibited. 5 C.F.R. § 1201.101(a). Only
      those ex parte communications that involve the merits of the case or violate rules
      requiring submissions to be in writing are prohibited. Id. Here, even if ex parte
      communications occurred between the agency and the administrative judge, they
      concerned the scheduling of the hearing, not the merits of the appeal, and thus
      were not prohibited. See Stec v. Office of Personnel Management, 22 M.S.P.R.
      213, 215 (1984). The appellant also appears to be arguing that the administrative
      judge should not have rescheduled the hearing to accommodate the agency’s
      failure to prepare. We find no abuse of discretion in the administrative judge’s
      decision to reschedule the hearing when the primary witness, the deciding
      official, was unavailable on the original hearing date.
¶18         The appellant notes that the administrative judge allowed the agency’s
      representative to take breaks during the hearing to talk to a technical
      representative, but would not allow a diabetic appellant to take a break to eat
      when she started to feel ill. PFR File, Tab 1 at 24 n.14. Determining when and
      how many breaks to take during a hearing is a matter left to the broad discretion
      afforded to administrative judges to regulate the course of the hearing. 5 C.F.R.
                                                                                      11

      § 1201.41(b)(6).   We find no abuse of discretion in the manner in which the
      administrative judge scheduled breaks during the hearing.
¶19         The appellant also notes that a portion of the hearing is missing from the
      Board’s audio recording of the hearing contained in the official record. PFR File,
      Tab 1 at 16-17.    The appellant is correct.    Compare CAF, Tab 10, Hearing
      Compact Disc at 1:30:55-1:32:00, with PFR File, Tab 2 at 107-09. The Board has
      held that when the record of the hearing contains material omissions of evidence
      necessary for the adjudication of an appeal, the evidence must be taken again.
      Walker v. Office of Personnel Management, 52 M.S.P.R. 101, 104 (1991).
      However, the testimony missing from the audio recording of the hearing in this
      matter was captured in the written transcript. Moreover, this testimony is not
      material to the adjudication of this appeal. The deciding official testified that,
      during a fast surge in Afghanistan and what the appellant has described as an
      “emergent Ordnance Evolution” called Odyssey Dawn, he would have needed all
      fifteen of the employees assigned to NMC headquarters who were furloughed.
      PFR File, Tab 2 at 108. However, there is no evidence in the record that either of
      these events was ongoing at the time that the decision to furlough the appellant
      was made.     On the contrary, the deciding official testified that all fifteen
      employees were furloughed without incident. Id. at 106.
¶20         The appellant believes that the administrative judge’s summary of the
      hearing testimony is inaccurate. PFR File, Tab 1 at 23. The appellant believes
      that the administrative judge made erroneous findings of fact by disregarding the
      testimony of the deciding official whenever it did not comport with the agency’s
      position. Id. at 24. Having thoroughly reviewed the record, we find that the
      administrative judge’s summary of the hearing testimony is accurate.
¶21         The appellant states that the administrative judge erred by not timely ruling
      on discovery motions.     Id. at 7-9, 24.    An administrative judge has broad
      discretion in ruling on discovery matters, and absent an abuse of discretion the
      Board will not find reversible error in such rulings. Vaughn v. Department of the
                                                                                       12

      Treasury, 119 M.S.P.R. 605, ¶ 15 (2013). The administrative judge ruled on the
      outstanding discovery motions at the beginning of the hearing. PFR File, Tab 2
      at 22-26.   The appellant was granted additional discovery and permitted to
      supplement the record with any relevant evidence he obtained. Id. We find no
      abuse of discretion in the timing of this discovery ruling.
¶22         We have reviewed all of the appellant’s arguments on review and find that
      they do not provide any reason to disturb the administrative judge’s findings.

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

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

            The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
            If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
                                                                                13

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 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.
