                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DAVID A. VOSS,                                  DOCKET NUMBER
                         Appellant,                  CH-0752-13-2793-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: March 16, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           David A. Voss, New Brighton, Minnesota, pro se.

           Karin A. Greeman, Esquire, Bloomington, Minnesota, 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
     sustained his furlough from employment due to sequestration.           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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The appellant serves as a contract administrator with the Department of
     Defense’s Defense Contract Management Agency and was furloughed from
     employment for no more than 88 hours following the President’s March 1, 2013
     sequester order. Initial Appeal File (IAF), Tab 10 at 16-17. The appellant filed
     an appeal of the agency’s furlough action, which the administrative judge
     sustained.   IAF, Tab 18, Initial Decision (ID).       In her initial decision, the
     administrative judge found that the agency established cause for taking the
     furlough due to the budget constraints placed on the agency following
     sequestration and that the agency proved that it imposed the furlough in a fair and
     even manner.     ID at 4-5.    The administrative judge, moreover, rejected the
     appellant’s claims that the agency could have avoided furloughing employees by
     implementing other cost-savings measures and that the agency treated tenured
     employees differently than either probationary employees or Presidential
     appointees. ID at 8. Finally, the administrative judge found no evidence that the
     agency failed to conduct an individualized assessment of the need to furlough
     employees or that the agency committed harmful procedural error in imposing the
     furlough. ID at 8-9.
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¶3         The appellant has filed a petition for review reasserting many of the same
     arguments he presented below.        Petition for Review (PFR) File, Tab 1.
     Specifically, he argues that a furlough should not be classified as an adverse
     action because it is nondisciplinary in nature and that other measures could have
     been taken that would have offset the need to furlough employees. Id. at 5-6.
     The appellant also reasserts that 5 C.F.R. part 752 is unfair because it treats
     tenured employees differently than other Federal employees for the purposes of a
     furlough and that the agency treated certain Federal employees differently based
     on their employment status. Id. at 9, 11. The agency has filed a response in
     opposition to the petition for review, and the appellant has filed a reply. PFR
     File, Tabs 3-4.
¶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. Tinker AFSC/DP v. Department of the Air
     Force, 121 M.S.P.R. 385, ¶ 14 (2014). A “fair and even manner” means that the
     agency applied the adverse action furlough uniformly and consistently.
     Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Proving
     that the furlough was imposed in such a manner, however, does not mean that the
     agency must satisfy the Board’s sense of equity. Id. Rather, the agency must
     show that it treated similar employees similarly and it must justify any deviations
     with legitimate management reasons. Id.
¶5         The Board, moreover, has held that the efficiency of the service standard for
     a furlough action does not encompass agency spending decisions per se and that
     the efficiency of the service must be judged from the viewpoint of the Department
     of Defense (DOD), and not from the individual military departments under its
     authority.   See Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶¶ 13-14
     (2014); Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 11 (2014). In
                                                                                        4

     Yee, the Board sustained the furlough action upon finding that it was reasonable
     for the DOD to consider its budget situation holistically, rather than considering
     each military department’s situation individually.        Yee, 121 M.S.P.R. 686,
     ¶¶ 13-14. Additionally, in Einboden v. Department of the Navy, 122 M.S.P.R.
     302, ¶ 18 (2015), the Board explained that an agency is not required to show that
     any funds saved from an employee’s furlough were actually used for any other
     purpose; instead, the Board found that, to meet the efficiency of the service
     standard, it is enough for the agency to show that the furlough action was a
     reasonable management solution when the action was taken. The U.S. Court of
     Appeals for the Federal Circuit recently issued a precedential decision affirming
     Einboden, finding that an agency is not “required to show actual reprogramming
     of the funds saved by [an employee’s] furlough.” Einboden v. Department of the
     Navy, 802 F.3d 1321, 1325 (Fed. Cir. 2015).
¶6         We have considered the appellant’s arguments on petition for review and
     find that they fail to present a basis for overturning the initial decision. We agree
     with the administrative judge that the agency established its need to furlough
     employees based on the budget constraints imposed by the sequester order and
     that it did so in a fair and even manner. ID at 4-5. The appellant’s argument that
     the agency could have avoided furloughing employees by enacting preventative
     cost-savings measures does not undermine the administrative judge’s finding that
     the agency established its need to furlough employees based on a budget shortfall.
     An agency’s spending decisions are generally beyond the scope of the Board’s
     consideration in such appeals, and, as stated above, an agency need not satisfy the
     Board’s sense of equity in establishing a need to furlough an employee.          See
     Gajdos, 121 M.S.P.R. 361, ¶¶ 10-11.
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¶7         We further find no merit to the appellant’s allegations of differing treatment
     based on his status as a tenured employee. 2 As the administrative judge carefully
     explained, the regulations cited by the appellant outline the statutory rights of
     tenured employees in the competitive and excepted service under chapter 75 of
     title 5, and these rights do not apply to, among others, probationary employees,
     employees appointed “by and with the advice and consent of the Senate,” and
     Presidential appointees. 5 C.F.R. § 752.402(d)(1), (3), (13). These employees’
     exclusion from coverage under chapter 75 does not imply that an agency may not
     furlough such employees; rather, their exclusion only means that they do not have
     adverse action appeal rights to the Board. See 5 U.S.C. § 7511(b); Hamlett v.
     Department of Justice, 90 M.S.P.R. 674, ¶ 8 (2002). Additionally, we find no
     support in the record for the appellant’s argument that tenured employees or
     employees who were covered by the Federal Employees’ Retirement System were
     specifically targeted by the agency or that their tenured status played a role in the
     agency’s decision making. See Kelly v. Department of the Army, 121 M.S.P.R.
     408, ¶ 15 (2014) (explaining that an appellant’s tenure generally does not play a
     role in a furlough of 30 days or less); PFR File, Tab 1 at 11.
¶8         We have considered the remainder of the appellant’s challenges to the
     agency’s furlough action, and we find that they do not present a basis for
     overturning the furlough. As the Federal Circuit recently explained, an agency
     has “wide berth” in determining “what type of adverse action is necessary to
     promote the efficiency of the service,” and we find that the agency implemented
     its furlough in a fair and even manner in this case. Einboden, 802 F.3d at 1325.
     The administrative judge’s initial decision sustaining the appellant’s furlough is
     accordingly affirmed.



     2
       We find no merit to the appellant’s claim that Federal employees, as a whole,
     comprise a cognizable race under Title VII of the Civil Rights Act of 1964. PFR File,
     Tab 1 at 10-11, Tab 4 at 7.
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                NOTICE TO THE APPELLANT REGARDING
                   YOUR FURTHER REVIEW RIGHTS
      You have the right to request review of this final decision by the U.S.
Court of Appeals for the Federal Circuit. You must submit your request to the
court at the following address:
                             U.S. 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 U.S. 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 U.S. 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 an appeal to
the U.S. 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
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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.
