                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     MICHAEL T. LARSEN, 1                            DOCKET NUMBER
                   Appellant,                        SF-0752-13-2150-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 29, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Michael T. Larsen, Yucca Valley, California, pro se.

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

           Jay Smith, Camp Pendleton, California, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed the agency’s furlough action. Generally, we grant petitions such as this
     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Marine
     Corps Headquarters – Williams II v. Department of the Navy, MSPB Docket
     No. DC-0752-15-0166-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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 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).

                                       BACKGROUND
¶2         On June 3, 2013, the agency proposed to furlough the appellant, an
     Attorney, for no more than 11 workdays due to “the 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 4 at 18-20.        The appellant
     submitted a written reply to the proposal notice. Id. at 16-17. By written notice
     dated July 1, 2013, the agency’s deciding official informed the appellant that he
     would be furloughed as outlined in the proposal notice.         Id. at 12-15.     The
     deciding official also acknowledged his receipt of the written reply and stated that
     he considered it. Id. at 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 record includes a
     Standard Form 50 reflecting the appellant’s furlough, effective July 8, 2013, on
                                                                                      3

     discontinuous days between July 8, 2013, and September 27, 2013. IAF, Tab 4 at
     11.
¶3         The appellant filed a Board appeal challenging the agency’s furlough
     action, and he requested a hearing.    IAF, Tab 1.    He alleged that the agency
     violated his due process rights, discriminated against him on the bases of race and
     age, created a hostile work environment, and subjected him to disparate treatment
     in applying the furlough. IAF, Tab 1 at 5; Tab 3 at 4; Tab 5 at 4; Tab 9 at 4-5. In
     a furlough procedures order, the administrative judge informed the appellant that
     his appeal had been consolidated with the appeals of similarly situated
     employees. Marine Corps Headquarters – Williams II v. Department of the Navy,
     MSPB Docket No. DC-0752-15-0166-I-1, Consolidation Appeal File, Tab 1.
     After holding a hearing, the administrative judge issued an initial decision
     affirming the furlough. IAF, Tab 13, Initial Decision (ID) at 2, 22. He found that
     the furlough was a reasonable management solution to the shortage of funds
     caused by sequestration and that the agency implemented the furlough in a fair
     and even manner. ID at 15-16, 22. He also found that the appellant did not prove
     a violation of due process or his other affirmative defenses. ID at 16-22.
¶4         The appellant has filed a petition for review reasserting his claim of a due
     process violation. Petition for Review (PFR) File, Tab 1 at 5-14. He also argues
     that the administrative judge erred by not ruling on two of his motions and by not
     providing him with an opportunity to testify at the hearing. Id. at 14-16. The
     agency has filed a response in opposition. PFR File, Tab 3. The appellant has
     filed a reply to the agency’s response. PFR File, Tab 4.

                     DISCUSSION OF ARGUMENTS ON REVIEW
     The appellant was provided with the required due process.
¶5         In his petition for review, the appellant argues that he was denied due
     process because the deciding official lacked any actual decision-making
     authority. PFR File, Tab 1 at 6-14, Tab 4 at 8-10. Procedural due process rights
                                                                                       4

     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
     procedures 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 8-13, Tab 4 at 8-10. Due
     process, however, 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. Rodgers v. Department of the Navy, 122 M.S.P.R.
     559, ¶ 6 (2015).
¶7        The appellant argues that Deputy Counsel P.D.’s testimony establishes a per
     se violation of due process and is a distinguishing factor that prevents Gajdos
     from controlling the due process issue. PFR File, Tab 1 at 6-13, Tab 4 at 8-10.
     We do not agree. P.D.’s testimony does not rebut the agency’s administrative
     record, which establishes that the deciding official had the authority to modify the
     furlough if he determined that an individual held a position subject to a
     previously established exception, recommend modification of the furlough if he
     concluded that the position at issue should be subject to an exception not
     previously recognized, and adjust the furlough schedule. AR, Part 1, Tab 2, ¶ 12,
                                                                                          5

      Tab 6 at 38 of 135; see ID at 9-10; see also IAF, Tab 11 at 4-5. Moreover, the
      Board has already decided that the agency’s policies during the furlough granted
      the deciding officials sufficient decision-making authority to satisfy the
      requirements of due process. See Rodgers, 122 M.S.P.R. 559, ¶ 7.
¶8          We also do not agree that the administrative judge erred by not considering
      P.D.’s testimony on the due process issue. See PFR File, Tab 1 at 5, Tab 4 at 5-8.
      Although an administrative judge’s failure to mention all of the evidence of
      record does not mean that he did not consider it in reaching his decision, Marques
      v. Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d,
      776 F.2d 1062 (Fed. Cir. 1985) (Table), an initial decision must, among other
      things, identify all material issues of fact and law and summarize the evidence on
      each such issue, Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587,
      589 (1980). Here, we do not find P.D.’s testimony pertinent to the due process
      issue because it does not refute the agency’s grant of decision-making authority
      to the deciding official.
¶9          For these reasons, we find that the agency provided sufficient due process.
      The agency did not commit harmful procedural error in processing the appellant’s
      furlough.
¶10         Although we have found no constitutional violation, we still must 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). A harmful procedural 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.     Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R.
      § 1201.4(r). An agency is required to follow its own rules in effecting an adverse
                                                                                         6

      action, regardless of whether those rules go beyond the requirements of
      government-wide statutes and regulations. Rodgers, 122 M.S.P.R. 559, ¶ 10.
¶11        The appellant has not identified a procedure the agency has violated. We
      find that the agency complied with the Office of Personnel Management’s
      procedures under 5 C.F.R. § 752.404 for implementing an adverse action. See
      IAF, Tab 4 at 12-20, Tab 11 at 4-5. We also find that the agency complied with
      the Department of the Navy Administrative Furlough Guidance for Proposing and
      Deciding Officials. AR, Part 1, Tab 6 at 32-39 of 135; see IAF, Tab 4 at 12-20,
      Tab 11 at 4-5.      We therefore find that the agency did not commit a harmful
      procedural error.
      The appellant has not identified any adjudicatory error that would warrant a
      different outcome.
¶12        The appellant asserts that the administrative judge erred by not ruling on
      two of his motions and by not providing him with an opportunity to testify during
      the hearing. PFR File, Tab 1 at 14-16, Tab 4 at 10-12. An administrative judge’s
      procedural error is of no legal consequence unless it is shown to have adversely
      affected a party’s substantive rights      Karapinka v. Department of Energy,
      6 M.S.P.R. 124, 127 (1981); see 5 C.F.R. § 1201.115(c).
¶13        The day before the hearing, the appellant moved for a decision to be made
      in favor of the appellant without a hearing because of the administrative judge’s
      failure to adjudicate the appeal within 120 days and ex parte communications.
      IAF, Tab 10 at 10-11.       He also moved for the administrative judge to take
      “judicial notice” of these two “facts.” Id. The administrative judge did not rule
      on these motions. The Board has recognized that it generally lacks the authority
      to grant summary judgment.      Johnson v. Department of Justice, 104 M.S.P.R.
      624, ¶ 30 (2007).       The appellant has not shown that this matter presents
      circumstances in which summary judgment is appropriate, and thus we discern no
      prejudicial error. Additionally, he has failed to explain how he was prejudiced by
      the administrative judge’s failure to take official notice under 5 C.F.R. § 1201.64.
                                                                                           7

¶14         Moreover, the appellant’s claim that the administrative judge violated
      Board policy by failing to issue an initial decision within 120 days of receipt of
      his appeal by the regional office does not establish a basis for review because he
      has not shown that he suffered any harm as a result of this alleged error. See,
      e.g., Drayton v. Equal Employment Opportunity Commission, 11 M.S.P.R. 43,
      46 n.2 (1982).
¶15         The appellant’s claim that the “MSPB and the Agency must admit to having
      numerous ex parte communications in order to schedule the furlough cases” also
      does not provide a basis for review.      IAF, Tab 10 at 10-11.      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 furlough appeals, not the merits of the appeals,
      and thus were not prohibited.      See Stec v. Office of Personnel Management,
      22 M.S.P.R. 213, 215 (1984).
¶16         For the first time on review, the appellant alleges that the administrative
      judge denied him the opportunity to testify. PFR File, Tab 1 at 15. An appellant
      has a statutory right to a hearing, and inherent in this right is the right to testify.
      Long v. Department of Transportation, 17 M.S.P.R. 384, 386 (1983); see 5 U.S.C.
      § 7701(a)(1); see also 5 C.F.R. § 1201.24(d).        Here, the administrative judge
      noted in the telephonic prehearing conference summary that the appellant
      reserved the right to call himself as a witness at the hearing. IAF, Tab 9 at 7.
      The administrative judge allowed the appellant to present a closing argument,
      Hearing Compact Disc (HCD), vol. 3 (12:05-12:17), during which he did not
      object to the end of the hearing or request to testify, HCD, vol. 3 (45:40-50:50).
      Neither did he submit a post-hearing brief stating his objection. His failure to
      object to the absence of an opportunity to testify precludes him from doing so on
      review. See, e.g., Valverde v. Department of the Army, 40 M.S.P.R. 380, 383-84
                                                                                          8

      (1989) (finding that the appellant cannot wait until after the adjudication is
      complete to object for the first time to the administrative judge’s conduct at the
      hearing). He also claims that his substantive rights were prejudiced because his
      testimony on damages was critical. PFR File, Tab 1 at 15-16. Even assuming
      that a procedural error occurred, the appellant has failed to show how his
      substantive rights were prejudiced because he did not prove his discrimination
      claims and does not raise them on review.         See, e.g., Valverde, 40 M.S.P.R.
      at 384.
¶17         We have reviewed all of the appellant’s arguments on review and find that
      they do not provide a reason to disturb the administrative judge’s findings.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS 3
            You have the right to request further review of this final decision.

      Discrimination Claims: Administrative Review
            You may request review of this final decision on your discrimination
      claims by the Equal Employment Opportunity Commission (EEOC). See Title 5
      of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)).         If you
      submit your request by regular U.S. mail, the address of the EEOC is:
                                Office of Federal Operations
                         Equal Employment Opportunity Commission
                                      P.O. Box 77960
                                 Washington, D.C. 20013

            If you submit your request via commercial delivery or by a method
      requiring a signature, it must be addressed to:


      3
        The administrative judge failed to inform the appellant of his mixed-case right to
      appeal from the initial decision on his discrimination claims to the Equal Employment
      Opportunity Commission and/or the United States District Court. This was error, but
      does not constitute reversible error because we notify the appellant of his mixed-case
      appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183,
      186-87 (1988).
                                                                                    9

                           Office of Federal Operations
                    Equal Employment Opportunity Commission
                                131 M Street, NE
                                  Suite 5SW12G
                            Washington, D.C. 20507

      You should send your request to EEOC no later than 30 calendar days after
your receipt of this order. If you have a representative in this case, and your
representative receives this order before you do, then you must file with EEOC no
later than 30 calendar days after receipt by your representative. If you choose to
file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action
      If you do not request EEOC to review this final decision on your
discrimination claims, you may file a civil action against the agency on both your
discrimination claims and your other claims in an appropriate United States
district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with
the district court no later than 30 calendar days after your receipt of this order. If
you have a representative in this case, and your representative receives this order
before you do, then you must file with the district court no later than 30 calendar
days after receipt by your representative. If you choose to file, be very careful to
file on time. If the action involves a claim of discrimination based on race, color,
religion, sex, national origin, or a disabling condition, you may be entitled to
representation by a court-appointed lawyer and to waiver of any requirement of
                                                                           10

prepayment of fees, costs, or other security.   See 42 U.S.C. § 2000e-5(f) and
29 U.S.C. § 794a.




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