                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ROGER GERALD STRICKLAND,                        DOCKET NUMBER
                  Appellant,                         AT-0752-13-7164-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: May 20, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL ∗

           Roger Gerald Strickland, Pass Christian, Mississippi, pro se.

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


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s furlough action.       For the reasons discussed below, we
     GRANT the petition for review, AFFIRM the administrative judge’s finding that
     the agency did not violate the appellant’s constitutional due process rights, and



     ∗
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     REMAND the case to the regional office for further adjudication in accordance
     with this Order.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶2         The appellant is an Electronics Technician at the agency’s Naval
     Oceanographic Office (NAVOCEANO) at the Stennis Space Center.                MSPB
     Docket No. AT-0752-13-7164-I-1, Initial Appeal File (IAF), Tab 1 at 7, Tab 3 at
     12.   On May 30, 2013, the agency proposed to furlough him based on “the
     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 March 1, 2013,” i.e., across-the-board reductions to
     federal budgetary resources caused by the Budget Control Act of 2011, as
     amended by the American Taxpayer Relief Act of 2012. IAF, Tab 1 at 7. The
     notice proposed furloughing full-time employees, such as the appellant, for up to
     11 days, and provided each employee an opportunity to respond orally and/or in
     writing to the designated deciding official. Id. at 7-8. On June 24, 2013, the
     agency issued a decision upholding the proposed furlough. Id. at 10-11. The
     decision letter stated that employees would be furloughed between July 8, 2013,
     and September 30, 2013. Id. at 10.
¶3         The appellant filed this appeal of his furlough.         IAF, Tab 1.    The
     administrative judge consolidated his appeal with a number of others filed by
     employees that she deemed similarly situated. MSPB Docket No. AT-0752-14-
     0259-I-1, Consolidated Appeal File (CAF), Tab 1.          Following a hearing, the
     administrative judge upheld the furloughs. CAF, Tab 7, Initial Decision (ID). In
     relevant part, the administrative judge found that the furloughs were a reasonable
     management solution to the financial restrictions placed upon the agency and that
     they were implemented in a fair and even manner.               ID at 5-10.    The
     administrative judge further found that the appellant had failed to prove any due
     process violation related to the furlough. ID at 10-13.
                                                                                     3

¶4        The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. On petition for review, the appellant contends that he: (1) should
     have been excepted from the furlough because he was deployed to a combat zone
     when the proposal notice was issued and because he was taking malaria
     medication when he received the notice of decision; and (2) was denied due
     process because he was at sea when he received the notice of proposed furlough.
     Id. at 4-6. The agency has filed a response, PFR File, Tab 3, and the appellant
     has filed a reply to the agency’s response, PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant has failed to show that the agency deprived him of his
     constitutional right to minimum due process of law or committed harmful error.
¶5        The appellant asserts that he was denied constitutional due process because
     he was at sea when he received the notice of proposed furlough and was told his
     written response had to be mailed or hand-delivered and his oral response had to
     be delivered in person, neither of which was possible. PFR File, Tab 1 at 4-5.
     An agency’s failure to provide a tenured public employee with an opportunity to
     present a response, either in person or in writing, to an appealable agency action
     that deprives him of his property right in his employment constitutes an
     abridgement of his constitutional right to minimum due process of law, i.e., prior
     notice and an opportunity to respond.         Cleveland Board of Education v.
     Loudermill, 470 U.S. 532, 546 (1985).
¶6        Here, the appellant received the notice of proposed furlough on June 4,
     2013, as indicated by his signature and acknowledgement on the proposal notice.
     IAF, Tab 1 at 9.    The proposal notice informed him that he had 7 days from
     receipt of the letter to respond orally and/or in writing. Id. While the appellant
     may not have been able to respond in person, he has offered no evidence in
     support of his contention that he could not submit a written response, nor has he
     provided any evidence indicating that he made a reasonable effort to respond.
     Accordingly, under the circumstances in this case, we find that the appellant has
                                                                                      4

     not established that the agency violated his constitutional due process rights. See
     Kinsey v. Department of the Navy, 59 M.S.P.R. 226, 229 (1993) (where an agency
     has provided an employee with an opportunity to make a written reply to a notice
     of proposed adverse action, its failure to afford him an opportunity to make an
     oral reply does not violate his right to minimum due process); see also Flores v.
     Department of Defense, 121 M.S.P.R. 287, ¶ 11 (2014) (in the absence of any
     indication that the appellant made a reasonable effort to assert his opportunity to
     respond, or that the agency denied him his right to respond through action,
     negligence, or design, the appellant was not denied due process).
¶7        Although the agency’s conduct did not constitute a constitutional violation,
     we still must decide whether the agency committed a harmful procedural error.
     See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1281-83 (Fed. Cir. 2011).
     Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency decision if
     the appellant “shows harmful error in the application of the agency’s procedures
     in arriving at such decision.” A procedural error is harmful where the record
     shows that the error was 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.
     Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶ 10 (2015); 5 C.F.R.
     § 1201.56(c)(3). To the extent the agency did send the appellant the proposal
     notice while he was at sea, the record does not support a finding that the agency
     committed a procedural error in doing so.       Further, even assuming that the
     agency’s actions did constitute procedural error, the appellant has failed to
     demonstrate that any such error was 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 Pumphrey, 122 M.S.P.R. 186, ¶ 10. Accordingly, we find that the
     appellant has failed to meet his burden of proving harmful error. See id. (the
     appellant bears the burden of proving harm).
                                                                                         5

      The appeal must be remanded for further adjudication of the issue of whether the
      agency proved that cause existed for the furlough action.
¶8         An initial decision must identify all material issues of fact and law,
      summarize the evidence, resolve issues of credibility, and include the
      administrative judge’s conclusions of law and his legal reasoning, as well as the
      authorities on which that reasoning rests.       Spithaler v. Office of Personnel
      Management, 1 M.S.P.R. 587, 589 (1980).          The administrative judge did not
      address the appellant’s contention that he was excepted from the furlough. Thus,
      we address that allegation here.
¶9         Pursuant to a May 14, 2013 Secretary of Defense memorandum, nine
      categories of employees were excepted from the furloughs for mission-specific
      reasons applicable to Navy personnel. Department of the Navy Administrative
      Record for FY 2013 Furlough Appeals (Navy Administrative Record), available
      at www.mspb.gov/furloughappeals/navy2013.htm, Tab 12 at 108-09.             Included
      among these exceptions were “all employees deployed (in a Temporary Duty
      status) or temporarily assigned (to include Temporary Change of Station) to a
      combat zone.”     Id. at 108.      The memorandum clarified that “[a] ‘deployed
      civilian’s’ period of deployment includes time spent in attendance at mandatory
      pre-deployment training as well as in completing mandatory post-deployment
      requirements.” Id. at 114.
¶10        Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an
      employee for 30 days or less “only for such cause as will promote the efficiency
      of the service.” Accordingly, an agency must prove that cause existed for the
      furlough and that the furlough promotes the efficiency of the service.        Dye v.
      Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency meets its
      burden of proving that a furlough promotes the efficiency of the service 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.            Chandler v.
                                                                                       6

      Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Before the Board
      reaches the issue of whether an action promotes the efficiency of the service,
      however, an agency must first establish that there is “cause” under 5 U.S.C.
      § 7513(a). Dye, 121 M.S.P.R. 142, ¶ 9. If the agency fails to allege or prove
      “cause” for the action, the Board’s inquiry stops there. Id. The agency’s burden
      to show “cause” for a furlough encompasses whether the appellant met the criteria
      established by the agency for being subject to, and not excepted from, the
      furlough. Id.
¶11        Here, the appellant does not dispute the administrative judge’s finding that
      the agency’s furloughs were a reasonable management solution to the budget cuts
      required by sequestration, and we decline to revisit the administrative judge’s
      well-reasoned finding on the issue.    See generally Lopez v. Department of the
      Navy, 121 M.S.P.R. 647, ¶¶ 4, 15-16 (2014) (affirming the administrative judge’s
      determination that furloughs were a reasonable management solution to the
      financial restrictions resulting from sequestration). Nor does the appellant allege
      that the agency applied the furlough in an unfair or uneven manner.            See
      Chandler, 120 M.S.P.R. 163, ¶ 8 (explaining that “fair and even manner” means
      that the agency treated similar employees similarly and justified any deviations
      with legitimate management reasons). Rather, he contends that he should have
      been excepted from the furlough because he was deployed to a combat zone when
      the proposal notice was issued. PFR File, Tab 1 at 4. He further alleges that he
      was not subject to the furlough because he was taking malaria medication when
      he received the decision letter and therefore was completing mandatory post-
      deployment requirements at that time. Id. The record is unclear, however, as to
      whether the agency correctly determined that the appellant was not excepted from
      the furlough due to his deployment status. Therefore, it is unclear whether the
      agency demonstrated “cause” for its furlough action against the appellant.
¶12        The parties did not adequately present evidence and argument relating to the
      above issue and were not placed on notice that this would be the dispositive issue
                                                                                7

in this case. See Dye, 121 M.S.P.R. 142, ¶ 11. Accordingly, this case must be
remanded to the regional office so that the record can be developed regarding this
issue.    Id., ¶¶ 10-12 (remanding where the issue of whether the appellant was
excepted from the furlough was not developed below); Somuk v. Department of
the Navy, 117 M.S.P.R. 18, ¶¶ 12-13 (2011) (remanding when the parties were not
placed on notice of the material issues of fact and law in the case); Ellshoff v.
Department of the Interior, 76 M.S.P.R. 54, 74 (1997) (an administrative judge is
responsible for developing the record evidence as necessary and appropriate);
Powers v. Department of Health, Education, and Welfare, 3 M.S.P.R. 342, 345
(1980) (remanding when potentially dispositive issues were not adequately
developed below).

                                    ORDER
         For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




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