                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     KIMBERLY D. BAILEY, 1                            DOCKET NUMBER
                   Appellant,                         AT-0752-13-4344-I-1

                  v.

     DEPARTMENT OF THE ARMY,                          DATE: September 24, 2014
                 Agency.



                THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Kimberly D. Bailey, Columbus, Georgia, pro se.

           Anne M. Norfolk, Esquire, Fort Benning, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     dismissed this furlough appeal as moot. Generally, we grant petitions such as this

     1
      Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation, In re: Medical
     Command, Fort Benning v. Department of the Army, MSPB Docket No. AT-0752-14-
     0200-I-1.
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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).
¶2         The appellant filed this appeal concerning a July 1, 2013 decision to
     furlough her for no more than 11 workdays during fiscal year 2013.            Initial
     Appeal File (IAF), Tab 1. On June 10, 2014, the agency filed a motion to dismiss
     this appeal. IAF, Tab 2 at 3. The agency represented that it had determined the
     appellant did not receive a furlough decision from someone with the authority to
     issue a decision, and it had therefore taken action to cancel the appellant’s
     furlough and restore her pay for the days she was improperly furloughed. Id. On
     July 8, 2014, the agency submitted a declaration from a civilian pay technician
     who verified that she had reviewed the pay records for the appellant and
     confirmed that she had been paid for the 6 days of furlough for which she was
     originally not paid in July and August 2013. IAF, Tab 3 at 4.
¶3         Based on the agency’s submissions, to which the appellant had not
     responded, the administrative judge ordered the appellant to show cause why her
     appeal should not be dismissed as moot. IAF, Tab 4. The show cause order
     informed the appellant, among other things, that the Board may dismiss her
                                                                                         3

     appeal as moot if the appealable action was canceled or rescinded by the agency,
     and that, for the appeal to be deemed moot, she must have received all of the
     relief that she could have received if the matter had been adjudicated and she had
     prevailed. Id. at 2. The appellant filed a brief response, which consisted of the
     following statement:
           Now comes [the] appellant to show cause why the appeal should not
           be dismissed for lack of jurisdiction. Due to the furlough the
           appellant has suffered damages, and is now hereby, requesting
           compensatory damages. Therefore, she is asking that the appeal be
           not deemed moot until appellant has received all the relief that she
           could have received if the matter had been adjudicated and she had
           prevailed.
     IAF, Tab 6 at 2.
¶4        The administrative judge found that the record evidence demonstrated that
     the agency canceled the appellant’s furlough and paid her for the days she was
     furloughed. IAF, Tab 7, Initial Decision (ID) at 3. He further found that the
     appellant had not asserted any discrimination claim that could afford her any
     additional relief, such as compensatory damages, in this appeal.         ID at 3-4.
     Accordingly, he dismissed the appeal as moot. ID at 4.
¶5        The appellant has filed a petition for review, which the agency has opposed.
     Petition for Review (PFR) File, Tabs 1, 3. The appellant does not contest the
     agency’s evidence that it has canceled the furlough action and paid her the
     appropriate amount of back pay for the 6 furlough days. Instead, the appellant
     argues that “she has an outstanding discrimination case against the agency while
     being furloughed” that would entitle her to compensatory and punitive damages.
     PFR File, Tab 1 at 8.           Having reviewed her petition and supporting
     documentation, it appears that the appellant is referring to discrimination cases
     that are pending in other forums. Specifically, she refers to three cases pending
     with the Equal Employment Opportunity Commission and one matter pending
     with the U.S. District Court for the Middle District of Georgia concerning matters
     that do not include the furlough at issue in this appeal. Id. at 9 & attachments.
                                                                                            4

¶6         The appellant did not raise any such claims before the administrative judge.
     In her initial Board appeal, the appellant merely indicated that she was appealing
     the furlough decision, and she did not raise any discrimination claim or allege
     facts that might support such a claim or any affirmative defense that could lead to
     an award of consequential or compensatory damages. IAF, Tab 1. See generally
     5 C.F.R. §§ 1201.201(c)-(d), .202(b)-(c) (concerning the scope of the Board’s
     authority to award such damages). Nor did she raise such a claim in her response
     to the show cause order, in which she made a bare request for compensatory
     damages because she had suffered damages due to the furlough. IAF, Tab 6 at 2.
     Thus, we agree with the administrative judge’s finding that the appellant did not
     raise a discrimination claim. ID at 3; see Patterson v. Department of the Air
     Force, 39 M.S.P.R. 413, 415, aff’d, 878 F.2d 1446 (Fed. Cir. 1989) (Table).
¶7         Even now, on petition for review, the appellant does not appear to be
     arguing that her furlough was taken for discriminatory reasons. 3           Rather, she
     asserts that she has claims pending against the agency regarding other matters in
     other forums that might lead to damages. 4 These claims do not entitle her to any
     relief in this furlough appeal. In any event, we find no basis on this record for
     allowing the appellant to raise a new claim or affirmative defense for the first
     time on petition for review. See Patterson, 39 M.S.P.R. at 416; see also 5 C.F.R.
     § 1201.115.
¶8         We acknowledge the appellant’s references to financial difficulties,
     bankruptcy, and the need to take out multiple loans.            See PFR File, Tab 1
     (July 21, 2013 Explanation of Emergency Situation).             Beyond the back pay
     3
       The initial decision informed the appellant that her claim may be dismissed as moot if
     factual allegations in support of a discrimination claim cannot support an inference that
     the agency acted in a manner that would entitle the appellant to an award of
     compensatory damages. ID at 2-3. Her submissions on review do not contain such
     factual allegations about the furlough action.
     4
       For purposes of this decision, we assume that the appellant may be entitled to the
     damages and relief she claims in these other cases, but we make no finding on these
     matters that are beyond the scope of this furlough appeal.
                                                                                       5

     already provided by the agency, however, the Board would lack the authority to
     order a remedy for such matters even if the appellant had prevailed in this
     furlough appeal after a full adjudication. Thus, they do not provide a basis for
     disturbing the administrative judge’s finding that the appeal is moot.          See
     generally Fernandez v. Department of Justice, 105 M.S.P.R. 443, ¶ 5 (2007)
     (explaining that an appeal is moot if the appealed action is canceled or rescinded
     by the agency and the appellant has received all of the relief that she could have
     received if the matter had been adjudicated and she had prevailed).
¶9         Accordingly, having considered the record in this matter, we find no reason
     to disturb the administrative judge’s conclusion that the appeal is moot because
     the appellant has received all the relief to which she could be entitled on the
     claims raised in this appeal.

                     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
                                                                                6

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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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.
