                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     IN RE INTERNAL REVENUE                          DOCKET NUMBER
        SERVICE, SOUTHEAST REGION,                   AT-0752-14-0040-I-1
                    Appellant,

                  v.
                                                     DATE: September 15, 2015
     DEPARTMENT OF THE TREASURY,
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Anna Gnadt, Esquire, and Brandon Baseman, Esquire, Washington, D.C.,
             for the appellants.

           Debra Chandler, Terry Scott, and Lapina Dixon, Atlanta, Georgia, for
             the appellants.

           Jessica B. Rice, Esquire, Atlanta, Georgia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellants have filed petitions for review of the initial decision
     sustaining their 3-day furloughs. Generally, we grant petitions such as these only

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     petitioners have not established any basis under section 1201.115 for granting
     their petitions for review. Therefore, we DENY the petitions for review. The
     initial decision, as supplemented by this Order, constitutes the Board’s final
     decision in this matter. 2

                                        BACKGROUND
¶2         The agency issued the appellants notice that it was proposing to furlough
     them for 7 days following the President’s March 1, 2013 sequester order. Initial
     Appeal File (IAF), Tab 4 at 31-33. 3 The agency subsequently issued decision
     letters effecting the furlough action for 5 days and explained that, if the
     2 remaining furlough days were needed, they would be scheduled at a later point
     in time. Id. at 15-19. Thereafter, the agency reduced the appellants’ furloughs to
     3 days. Consolidated Appeal File (CAF), Tab 26, Initial Decision (ID) at 1 n.1, 3.

     2
       The appellants to whom this Final Order applies are listed on the attached
     Appendix A.
     3
       In processing the consolidated appeal, the administrative judge cited to the appeal file
     in the above-captioned case as the lead or consolidated appeal file (CAF) and cited to
     the appeal file in Chandler v. Department of the Treasury, MSPB Docket No. AT-0752-
     13-0583-I-1, as the “IAF” insofar as it contained information common to each appellant
     which was not included in the consolidated appeal file. For the purposes of
     consistency, we will follow the same convention.
                                                                                    3

¶3         The appellants filed timely appeals of the agency’s furlough action, and,
     during discovery, the administrative judge granted appellant Chandler’s motion to
     certify for interlocutory appeal several issues concerning the scope of permissible
     discovery in a furlough appeal. IAF, Tab 19. The Board subsequently issued a
     decision establishing certain parameters for discovery in a furlough appeal and
     returned the appeal to the administrative judge for further proceedings. Chandler
     v. Department of the Treasury, 120 M.S.P.R. 163, ¶¶ 10-36 (2013).
¶4         After the Board issued its decision in Chandler, the assigned administrative
     judge issued a furlough procedures order consolidating 26 individually-filed
     initial appeals pursuant to 5 C.F.R. § 1201.36(a)(2).         CAF, Tab 1.       The
     administrative judge explained that the 26 appeals were filed by agency
     employees who are members of the National Treasury Employees Union (NTEU)
     bargaining unit and were similarly affected by the agency’s furlough action. Id.
¶5         In the proceedings below, the appellants were divided into three separate
     groups: 21 were represented collectively by three union representatives; three
     were represented by NTEU counsel; and two represented themselves individually,
     although neither participated in the proceedings before the administrative judge.
¶6         The administrative judge, in the furlough procedures order, also provided
     the appellants with an additional opportunity to raise affirmative defenses. CAF,
     Tab 1. In response, the appellants asserted that the agency violated their rights to
     due process, committed harmful error, and conducted the furlough not in
     accordance with law, under 5 U.S.C. § 7701(c)(2)(C), because the agency
     committed an unfair labor practice (ULP) by implementing the furlough prior to
     completing impact and implementation bargaining with the NTEU. CAF, Tab 3
     at 7-9.
¶7         The administrative judge held a prehearing conference with the parties in
     which she outlined the burdens of proof in a furlough appeal, including the
     appellants’ burdens to establish each of their affirmative defenses. CAF, Tab 18.
     In her prehearing order, the administrative judge identified four separate alleged
                                                                                           4

     due process violations and one claim of harmful error to be addressed during the
     hearing.     Id.    Citing the Board’s decision in Chandler, however, the
     administrative judge disallowed the appellants’ proposed affirmative defense that
     the furlough was not taken in accordance with law under section 7701(c)(2)(C)
     based on an alleged ULP. Id. Specifically, the administrative judge found that
     the Board had previously denied appellant Chandler’s discovery request for
     information “relat[ing] to the agency’s decision to proceed with the furlough
     while in the midst of bargaining with” the NTEU because such information was
     not relevant to whether the furlough promoted the efficiency of the service and
     because any “remedy for a violation of the appellant’s collective bargaining rights
     rests with the negotiated grievance procedure or the Federal Labor Relations
     Authority [FLRA].” Chandler, 120 M.S.P.R. 163, ¶¶ 17-18 (footnote omitted);
     CAF, Tab 18. Relying on this reasoning, the administrative judge declined to
     consider the appellants’ affirmative defense that the furlough was not in
     accordance with law based upon the alleged commission of a ULP. CAF, Tab 18.
¶8         The administrative judge held a 2-day hearing and issued an initial decision
     sustaining the furlough action.         ID at 5-11.      In her initial decision, the
     administrative judge found that the agency proved that the furlough was a
     reasonable management solution to the financial impacts of the sequester and that
     the agency implemented the furlough in a fair and even manner.                  Id.   The
     administrative judge also denied all of the appellants’ asserted harmful error and
     due process affirmative defenses. ID at 11-18.
¶9         The appellants have filed a petition for review 4 focused solely on the
     administrative judge’s decision to exclude their not-in-accordance-with-law


     4
       The first two groups of appellants, consisting of a total of 24 individuals, have filed
     separate petitions for review. See Petition for Review (PFR) File, Tabs 1-2. The
     petitions for review, however, are virtually identical and raise the same arguments on
     review. For purposes of clarity, we will refer to the filing found at Tab 1 of the petition
     for review file as the appellants’ petition for review (in the singular). The appellants
     have similarly filed separate, but identical, reply briefs in response to the agency’s
                                                                                           5

      affirmative defense from the hearing.        Petition for Review (PFR) File, Tab 1
      at 8-19. The agency has filed a response in opposition arguing that the Board
      previously ruled that the substance of the appellants’ not-in-accordance-with-law
      affirmative defense is not before the Board in this appeal and that the
      administrative judge therefore correctly precluded the appellants from raising this
      affirmative defense prior to the hearing. PFR File, Tab 6 at 8-16. The appellants
      have filed a reply in further support of their argument that the administrative
      judge improperly precluded them from litigating their affirmative defense under
      section 7701(c)(2)(C). PFR File, Tab 7.

                                            ANALYSIS
      The appellants have not challenged the administrative judge’s findings that the
      furlough action was imposed in a fair and even manner and that the appellants
      failed to establish their due process and harmful error affirmative defenses.
¶10         On review, the appellants have not challenged the administrative judge’s
      findings that the agency imposed its furlough action in a fair and even manner or
      that they failed to establish their affirmative defenses of due process violations
      and harmful error.      PFR File, Tab 1.      We have reviewed the administrative
      judge’s well-reasoned initial decision and find no reason to disturb these findings.
      See Crosby v. U.S. Postal Service, 74 M.S.P.R. 98, 105-06 (1997) (finding no
      reason to disturb the administrative judge’s findings where she considered the
      evidence as a whole, drew appropriate inferences, and made reasoned
      conclusions); Broughton v. Department of Health & Human Services, 33 M.S.P.R.
      357, 359 (1987) (same).




      opposition. PFR File, Tabs 7-8. We will refer to the filing found at Tab 7 of the
      petition for review file as the appellants’ reply. The two pro se appellants have not
      filed petitions for review. Thus, the initial decision is the Board’s final decision as to
      those appellants. See 5 C.F.R. § 1201.113; MSPB Docket Nos. AT-0752-13-0682-I-1,
      AT-0752-13-0683-I-1.
                                                                                   6

      The Board’s decision in Chandler does not preclude the appellants from raising
      an affirmative defense under section 7701(c)(2)(C).
¶11         Based upon the nature of the arguments on review, we begin with a review
      of the Board’s decision in Chandler. In Chandler, the Board was presented with
      a series of discovery rulings concerning the scope of discoverable information in
      a furlough appeal.    See 120 M.S.P.R. 163, ¶¶ 2-3, 12-36 (defining the issues
      presented for interlocutory review). Among the information sought by appellant
      Chandler was information related to the agency’s decision to proceed with
      implementing the furlough prior to completing negotiations with the NTEU. Id.,
      ¶ 17. The administrative judge denied appellant Chandler’s discovery request on
      the basis that the agency’s negotiations with the NTEU were not relevant to the
      pending issues before the Board, i.e., whether the agency’s furlough action
      promoted the efficiency of the service. Id., ¶¶ 17-18. On interlocutory review,
      the Board sustained this discovery ruling and agreed with the administrative
      judge that information concerning why the agency took the furlough action prior
      to completing impact and implementation bargaining with the NTEU did not
      address whether the furlough promoted the efficiency of the service. Id. In a
      footnote, the Board also found that appellant Chandler’s discovery request was
      not reasonably calculated to lead to the discovery of admissible evidence
      concerning retaliation for union activity under 5 U.S.C. § 2302(b)(9) because the
      appellant was not personally involved in the impact and implementation
      bargaining at issue. See id., ¶ 18 n.5.
¶12         The Board’s interlocutory rulings in Chandler, however, only concerned the
      propriety of the appellant’s discovery requests, which focused on whether the
      furlough promoted the efficiency of the service. Id., ¶¶ 2-3, 17-18; see also IAF,
      Tab 13 at 1. At the time appellant Chandler propounded her discovery requests,
      moreover, the appellants had not yet raised the issue of whether the agency’s
      furlough action was not taken in accordance with law; the record reflects that the
      appellants did not raise this affirmative defense until after the Board issued its
                                                                                       7

      decision in Chandler.    See CAF, Tabs 3-4.      Thus, at the time of the Board’s
      decision in Chandler, the Board had no occasion to consider whether appellant
      Chandler’s discovery request seeking information about the implementation of the
      furlough prior to the completion of bargaining with the NTEU could have led to
      the discovery of admissible evidence concerning a not-in-accordance-with-law
      affirmative defense.
¶13        Because the Board’s decision in Chandler only addressed the scope of
      discovery in a furlough appeal focused on whether the agency’s action promoted
      the efficiency of the service, we find that Chandler does not preclude the
      appellants from presenting their not-in-accordance-with-law affirmative defense
      under section 7701(c)(2)(C).

      The appellants’ not-in-accordance-with-law affirmative defense fails based on the
      undisputed material facts.
¶14        On review, the appellants argue that the administrative judge erred in
      excluding witness testimony and documentary evidence concerning their
      not-in-accordance-with-law defense and that she overlooked Board precedent
      finding that an allegation of a ULP can serve as a valid affirmative defense in a
      chapter 75 appeal. PFR File, Tab 1 at 9-11. In further support of their claim, the
      appellants have submitted, for the first time on review, an arbitration award
      finding that the agency committed a ULP when it implemented the furlough
      actions prior to completing negotiations with the NTEU. 5 Id. at 21-48. They
      assert that the Board should defer to the arbitrator’s findings and, based upon the
      arbitration award, should find that they proved their not-in-accordance-with-law
      affirmative defense. Id. at 16-18. As discussed below, we are able to decide this
      matter without remand because the record on this dispositive issue has been fully


      5
        Because the arbitrator’s decision was issued after the record closed below, and
      because we find it is material to the issues presented on review, we will consider the
      appellants’ submission of this new evidence on review. See 5 C.F.R. § 1201.115(d);
      PFR File, Tab 1 at 17, 21-48.
                                                                                   8

      developed, and the appellants’ affirmative defense fails based on the undisputed
      material facts.
¶15         Pursuant to 5 U.S.C. § 7701(c), an “agency’s decision may not be
      sustained . . . if the employee or applicant for employment (A) shows harmful
      error in the application of the agency’s procedures in arriving at such
      decision; . . . or (C) shows that the decision was not in accordance with law.”
      5 U.S.C. § 7701(c)(2)(A), (C). The Board has recognized that these two defenses,
      although similar, address separate species of agency error.          See Doe v.
      Department of Justice, 121 M.S.P.R. 596, ¶ 12 (2014).         The harmful error
      provision of section 7701(c)(2) is applicable to all procedural errors, while the
      not-in-accordance-with-law provision is applicable to other unlawful actions.
      See id.
¶16         To succeed on a not-in-accordance-with-law affirmative defense, an
      appellant must establish that there is no legal authority for the action.     See
      Hamilton v. U.S. Postal Service, 58 M.S.P.R. 486, 488-89 (1993). That is, the
      Board must determine whether the decision itself, in its entirety, was not in
      accordance with law. See Stephen v. Department of the Air Force, 47 M.S.P.R.
      672, 683 (1991) (citing Handy v. U.S. Postal Service, 754 F.2d 335, 337-38 (Fed.
      Cir. 1985)). Applying this standard, the Board has overturned an agency action
      as not in accordance with law where, for example, the individual who imposed the
      challenged adverse action had retired when the decision letter was signed and
      thus had no legal authority to take the challenged action.         See Hamilton,
      58 M.S.P.R. at 488-89.
¶17         Here, there is no dispute that the agency and the NTEU entered into impact
      and implementation bargaining concerning the manner in which the furlough
      action would be scheduled and that the agency effected the furlough prior to
      completing its bargaining with the NTEU. See PFR File, Tab 1 at 22. The only
      issue presented in the appellants’ ULP charge, however, was the scheduling of the
      furlough days, not whether the agency had the legal authority to take the furlough
                                                                                          9

      action. See id. at 36. Thus, although the arbitrator determined that the agency
      committed a ULP by effecting the furlough prior to completing its bargaining
      with the NTEU, this does not establish that the agency lacked the legal authority
      to furlough the appellants. 6 Indeed, the Board has held that the scheduling of an
      agency’s furlough action is not a matter within the Board’s jurisdiction under
      chapter 75, Pumphrey v. Department of Defense, 122 M.S.P.R. 186, ¶ 13 (2015),
      and that the implementation of a furlough is generally left to the agency’s
      discretion, see Lopez v. Department of the Navy, 121 M.S.P.R. 647, ¶¶ 16-17, 19
      (2014); Chandler, 120 M.S.P.R. 163, ¶ 9.
¶18         The appellants also assert that the administrative judge erred by not
      allowing discovery and an evidentiary hearing on this affirmative defense. The
      Board has held that to obtain reversal of an initial decision on the ground that the
      administrative judge abused her discretion in excluding evidence, the petitioning
      party must show on review that relevant evidence, which could have affected the
      outcome,    was   disallowed.       Sanders    v.   Social   Security   Administration,
      114 M.S.P.R. 487, ¶ 10 (2010); Jezouit v. Office of Personnel Management,
      97 M.S.P.R. 48, ¶ 12 (2004), aff’d, 121 F. App’x 865 (Fed. Cir. 2005).              The
      appellants have failed to do so here.
¶19         We therefore find, based on the undisputed facts, that the appellants failed
      to establish their affirmative defense under 5 U.S.C. § 7701(c)(2)(C) that the




      6
        The appellants argued on review that they were precluded from pursuing a separate
      ULP charge with the FLRA based upon their filing of their Board appeals challenging
      the agency’s furlough action under chapter 75. PFR File, Tab 1 at 12. We have no
      occasion to consider whether the FLRA has jurisdiction over an appeal of the
      arbitrator’s award, and we rely on the arbitrator’s award only insofar as it bears on the
      appellants’      not-in-accordance-with-law         affirmative      defense        under
      section 7701(c)(2)(C). See Polk v. Internal Revenue Service, 11 M.S.P.R. 482, 483-84
      (1982).
                                                                                  10

agency lacked the legal authority to take the furlough action based on their ULP
charge contesting the scheduling of the furlough action. 7

                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).


7
  Although not specifically argued by the appellants, we also have considered whether
the agency’s alleged commission of a ULP constitutes harmful error under
section 7701(c)(2)(A). Reversal of an agency’s action is required under this provision
when an appellant establishes that the agency committed a procedural error that likely
had a harmful effect on the outcome of the case before the agency. Goeke v.
Department of Justice, 122 M.S.P.R. 69, ¶ 7 (2015). We find that the appellants could
not establish that the alleged ULP caused the agency to reach a different conclusion in
deciding to impose the furlough because the ULP charge only concerned the scheduling
of the furlough action, and it did not otherwise address the agency’s legal justification
for taking the furlough. See PFR File, Tab 1 at 44-48 (“[T]he parties’ bargaining
focused on the selection of days on which bargaining unit employees would be
furloughed, without any dispute over the Agency’s general right to meet its
sequester-related budget reductions through the imposition of furloughs . . . .”). The
appellants, therefore, could not prove that the furlough should be reversed for
harmful error.
                                                                              11

      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.
                                                           12

                           APPENDIX A
       In Re Internal Revenue Service, Southeast Region
                     AT-0752-14-0040-I-1

Angela Jackson                            AT-0752-13-0663-I-1
April Autry                               AT-0752-13-0678-I-1
Arieane H. Barrs                          AT-0752-13-0594-I-1
Barbara A. Harris                         AT-0752-13-0667-I-1
Barbara Shuler Paschal                    AT-0752-13-0596-I-1
Carmen Stewart                            AT-0752-13-0595-I-1
Debra J. Chandler                         AT-0752-13-0583-I-1
Dominique Bradley                         AT-0752-13-0643-I-1
Faye Dawkins                              AT-0752-13-0684-I-1
Fondrae Townsend                          AT-0752-13-0668-I-1
George Mabry                              AT-0752-13-0585-I-1
Gladys W. Jules                           AT-0752-13-0670-I-1
Gloria R. Williams                        AT-0752-13-0669-I-1
Gloria Yvonne Turner                      AT-0752-13-0671-I-1
Harriett Christine Scott                  AT-0752-13-0664-I-1
James A. St. Julien                       AT-0752-13-0602-I-1
James John Kelly                          AT-0752-13-0665-I-1
La-Tarvia R. Hilbert                      AT-0752-13-0600-I-1
Lapina J. Dixon                           AT-0752-13-0605-I-1
Shelley Whitaker                          AT-0752-13-0666-I-1
Terry Scott                               AT-0752-13-0642-I-1
Tunisia Phifer                            AT-0752-13-0620-I-1
Valda Poole                               AT-0752-13-0603-I-1
Xaveria Turner                            AT-0752-13-0672-I-1
