                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


DAVID L. BOULDEN,                                DOCKET NUMBER
              Appellant,                         AT-0752-13-3521-I-1 1

             v.

DEPARTMENT OF THE ARMY,                          DATE: February 6, 2015
            Agency.



        THIS FINAL ORDER IS NO NPRECEDENTIAL 2

      Robert S. Poydasheff, Esquire, Columbus, Georgia, for the appellant.

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


                                      BEFORE

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




1
  Pursuant to 5 C.F.R. § 1201.36(a)(2), this appeal was part of a consolidation, I n re
Training and Doctrine Command, Fort Benning v. Department of the Army, MSPB
Docket No. AT-0752-14-0162-I-1, Consolidated Appeal File (CAF). Only the appellant
has filed a petition for review of the initial decision sustaining the agency’s furlough
action. Petition for Review (PFR) File, Tab 1 at 1.
2
   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                       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
     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 agency furloughed the appellant, an employee assigned to the agency’s
     Training and Doctrine Command at Fort Benning, Georgia, for 6 days based upon
     the financial restrictions imposed by the President’s March 1, 2013 sequestration
     order. CAF, Tab 4 at 2-3. The appellant, along with several other employees,
     filed an appeal of the agency’s furlough action, which the assigned administrative
     judge sustained. CAF, Tab 12, Initial Decision (ID). Of the several appellants
     whose appeals were consolidated for processing, only the appellant has filed a
     petition for review. 3   PFR File, Tab 1.      The agency has filed a response in
     opposition to the petition for review. PFR File, Tab 4.

     3
       The Clerk of the Board received the appellant’s petition for review on October 16,
     2014. PFR File, Tab 1. The initial decision, however, was issued on August 19, 2014,
     and a petition for review had to be filed no later than September 23, 2014. In response
                                                                                             3

¶3         The record reflects that the agency furloughed the appellant for 6 days
     because of the financial restrictions placed on the agency by the sequester. IAF,
     Tab 1 at 11-13 (letter of decision imposing the furlough).           The administrative
     judge sustained the agency’s action, finding that it was required to furlough
     employees based on budget restrictions, and that it did so in a fair and even
     manner without targeting certain employees or groups of employees. ID at 5-6.
     On review, the appellant argues, among other things, that the agency failed to
     prove that he was not exempt from the furlough. PFR File, Tab 1 at 5 (arguing
     that the agency did not prove that he was not involved in programs affecting
     military readiness).
¶4         The Board has found that 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. In re Tinker AFSC/DP v. Department of
     the Air Force, 121 M.S.P.R. 385, ¶ 14 (2014). We find no basis to conclude that
     the agency was required to disprove the appellant’s alleged, presumptive
     entitlement to an exemption from the furlough under the agency’s furlough
     process. 4 See Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶ 6 (2014)


     to the Board’s timeliness order, the appellant’s representative avers that he mailed the
     petition for review to the Clerk of the Board on the same date that he mailed copies to
     the agency’s representative and the assigned administrative judge—September 8,
     2014—and that the pleading he sent to the Board was either lost in the mail or misfiled.
     PFR File, Tab 3 at 2. The agency has not opposed the appellant’s petition for review on
     timeliness grounds. PFR File, Tab 4. The appellant’s motion to accept his petition for
     review as timely is GRANTED.
     4
       The Department of Defense exempted nine categories of civilian workers from the
     furlough. CAF, Tab 8, Tab 4 (incorporating by reference the agency’s administrative
     record found on the Board’s website); Department of the Army Administrative Record
     for Fiscal Year 2013 Furlough Appeals (Administrative Record), availab le at
     www.mspb.gov/furloughappeals/army2013.htm (last visited Feb. 6, 2015).                The
     appellant has failed to identify on review wh ich category, if any, he believes applied to
     him. PFR File, Tab 1 at 5. Additionally, the appellant argued below that the agency
                                                                                        4

     (finding that, when imposing a furlough action, the agency is required to treat
     similar employees similarly and to justify deviations with legitimate management
     reasons). Instead, we find ample support in the record that the agency fairly and
     evenly implemented its furlough action, it had legitimate management reasons for
     its actions, and there is no evidence in the record that the agency treated similar
     employees differently. See In re Tinker AFSC/DP, 121 M.S.P.R. 385, ¶ 14; CAF,
     Tab 8; Administrative Record, Tabs 6-8. Additionally, we find the appellant’s
     argument, that the agency could have taken steps to mitigate the financial impacts
     of the sequester, presents no basis for overturning his 6-day furlough. See Kelly
     v. Department of the Army, 121 M.S.P.R. 408, ¶ 13 (2014) (the Board will not
     review spending decisions entrusted to the agency’s discretion in reviewing a
     furlough action); IAF, Tab 7 at 5.
¶5        The appellant also argues on review that the administrative judge erred in
     denying him the opportunity to cross-examine one of the deciding officials who
     imposed most, but not all, of the furlough actions at issue in the consolidated
     appeal. PFR File, Tab 1 at 4. This agency official, however, did not serve as the
     deciding official over the appellant’s furlough, and there is no dispute that the
     appellant had an opportunity to cross-examine the deciding official who imposed
     his furlough. PFR File, Tab 4 at 6-7. We find no error with the administrative
     judge’s decision to preclude the appellant from cross-examining a witness who
     had no relevant or material information concerning his furlough. See Box v. U.S.


     erred in separately identifying Sexual Assault Prevention and Response Victim
     Advocates and Coordinators as exempt employees. IAF, Tab 7 at 6. There is no
     evidence in the record that the agency targeted the appellant for personal reasons or
     exempted these employees without a legitimate management reason. CAF, Tab 8;
     Administrative Record, Tab 7 (explain ing that the additional exemption was
     implemented in order to “ensure that every effort is made to instill in the Army a
     climate that does not tolerate or ignore sexual harassment or sexual assault”). The
     Board will not scrutinize an agency’s furlough 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).
                                                                                       5

     Postal Service, 51 M.S.P.R. 401, 405 n.2 (1991) (finding that the administrative
     judge properly denied the appellant’s request to cross-examine a witness whose
     testimony was not relevant or material to the issues in the appeal).
¶6        We have considered the remainder of the appellant’s arguments on review
     and find that they present no basis for overturning the administrative judge’s
     initial decision. The initial decision sustaining the agency’s furlough action is
     AFFIRMED.

                      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.
     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
                                                                                6

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.
