                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     VICTORIA CALHOUN, 1                             DOCKET NUMBER
                  Appellant,                         PH-0752-13-5389-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: April 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Ruth Ann Azeredo, Esquire, Annapolis, Maryland, for the appellant.

           Laurie Ann Kwiedorowicz, Esquire, Fort Meade, Maryland, 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 her furlough from employment due to sequestration.            Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous


     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Army
     Cyber Command v. Department of the Army, MSPB Docket No. PH-0752-14-0801-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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).
¶2         The agency furloughed the appellant from her position as a Doctrine
     Development Analyst for 6 days following the President’s March 1, 2013
     sequester order. Initial Appeal File (IAF), Tab 5 at 24. The appellant timely
     filed an appeal of her furlough, and, after withdrawing her request for a hearing,
     the administrative judge issued an initial decision sustaining the furlough action.
     IAF, Tab 25, Initial Decision (ID).     In his initial decision, the administrative
     judge found that the agency established that its action promoted the efficiency of
     the service and that the appellant failed to establish that the agency committed
     either a due process violation or harmful procedural error in effecting the
     furlough.   ID at 5-11.      Specifically, the administrative judge rejected the
     appellant’s arguments that the agency improperly delegated the deciding
     official’s responsibilities to the agency official who imposed the appellant’s
     furlough. ID at 8-11.
¶3         The appellant has filed a petition for review primarily challenging the
     administrative judge’s due process and harmful error analysis.          Petition for
     Review (PFR) File, Tab 1 at 10-17.          On review, the appellant renews her
                                                                                        3

     argument that the agency erred in delegating the responsibilities of the deciding
     official to an individual other than the local installation commander who oversaw
     the appellant’s work unit.    Id. at 12-13.   She further argues that, even if the
     agency could delegate the deciding official’s responsibilities, the individual who
     served as the deciding official was not qualified to serve in that role.          Id.
     at 14-16. The appellant also asserts that the deciding official erred in utilizing an
     oral reply official to hear her response to the proposed furlough and that he did
     not receive a summary of her oral reply prior to issuing the decision letter. Id. at
     20-24. The agency has filed a response in opposition arguing that it properly
     delegated the deciding official’s responsibilities pursuant to the Secretary of
     Defense’s May 2013 guidance on implementing furloughs and that the deciding
     official considered the appellant’s written response prior to issuing a letter of
     decision, and thus did not commit a due process violation.         PFR File, Tab 3
     at 6-10, 12.
¶4         An agency meets its burden of proving 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). 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. 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
                                                                                      4

     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).
¶5        We concur with the administrative judge that the agency established its
     need to furlough the appellant due to sequestration.           ID at 4-5.      The
     administrative judge found it undisputed that the agency suffered a budget
     shortfall following sequestration, and he rejected the appellant’s arguments that
     her furlough could have been avoided if the agency adopted some of her
     proposals to save and reallocate money.         ID at 5.     We agree with the
     administrative judge that the appellant’s budget proposals focus on the agency’s
     individual spending decisions and are beyond the scope of the Board’s review in a
     furlough appeal. See Einboden v. Department of the Navy, 802 F.3d 1321, 1325
     (Fed. Cir. 2015). The appellant has not specifically challenged the remainder of
     the administrative judge’s initial decision sustaining the furlough, and we find no
     reason to differ with his well-reasoned findings in this regard.     See Ronso v.
     Department of the Navy, 122 M.S.P.R. 391, ¶ 5 (2015) (declining to revisit the
     administrative judge’s initial decision sustaining a furlough absent specific
     arguments concerning the legitimacy of the action).
¶6        We similarly agree with the administrative judge that the appellant did not
     establish that the agency committed either a due process violation or a harmful
     procedural error in effecting the appellant’s furlough. Due process is a flexible
     concept that calls for such procedural protections as the particular situation
     demands. See Rodgers v. Department of the Navy, 122 M.S.P.R. 559, ¶ 6 (2015);
     Gajdos, 121 M.S.P.R. 361, ¶ 18. In circumstances similar to the present appeal,
     the Board has found that the dictates of due process are satisfied where the
     employee receives advanced notice of the proposed furlough and an opportunity
     to respond. See Rodgers, 122 M.S.P.R. 559, ¶ 6. Here, the appellant received
     such notice and had an opportunity both to present an oral reply and to submit a
                                                                                             5

     written response. 3 IAF, Tab 5 at 19-20; Tab 24. The deciding official, moreover,
     averred that he had the authority to determine whether the appellant should be
     furloughed, or whether she met one of the criteria for an exemption. E.g., IAF,
     Tab 22 at 26-27.       We agree with the administrative judge that the process
     employed by the agency is consistent with these basic tenets of due process. 4 See
     Rodgers, 122 M.S.P.R. 559, ¶¶ 7-9; Ronso, 122 M.S.P.R. 391, ¶ 13.
¶7         The appellant’s assertions of harmful procedural error also are unavailing.
     The Secretary of Defense issued a memorandum in May 2013 outlining the
     parameters to be used in selecting deciding officials for adjudicating the proposed
     furloughs.   See Department of the Army Administrative Record for FY2013
     Furlough     Appeals    (Master     Administrative     Record),    Tab    7,   available
     at http://www.mspb.gov/furloughappeals/army2013.htm. This guidance provided
     in relevant part that the “designated Deciding Official will be no lower than a
     local Installation Commander, senior civilian or equivalent who would be in the
     best position to determine the fair and equitable application of the furlough.
     Deciding Official responsibilities may not be further delegated.” Id. Pursuant to
     this instruction, Lieutenant General R.H. was identified as the deciding official
     for the appellant’s work unit. See Army Cyber Command v. Department of the
     Army, MSPB Docket No. PH-0752-14-0801-I-1, Consolidation Appeal File, Tab 5
     at 113. Lieutenant General R.H. in turn delegated Colonel S.S. to serve as the
     deciding official, and Colonel S.S. issued the decision letter imposing the
     appellant’s furlough. Id. at 62-64, 113.

     3
      The appellant’s arguments that her oral reply was not considered and that the deciding
     official should not have utilized a separate oral reply official are discussed infra ¶ 10.
     4
       The appellant also contends on review that the furlough action does not comport with
     due process because the deciding official improperly was delegated the responsibility to
     serve in this role. PFR File, Tab 1 at 16-18. To the extent the appellant is alleging that
     she was denied a meaningful opportunity to respond based on this delegation of
     authority, the deciding official possessed sufficient decision-making authority in the
     context of the furlough to satisfy the appellant’s right to due process. See Rodgers,
     122 M.S.P.R. 559, ¶ 7.
                                                                                         6

¶8         The appellant argues that the delegation of authority from Lieutenant
     General R.H. to Colonel S.S. was improper because the Defense Secretary’s
     memorandum specified that deciding official “responsibilities may not be further
     delegated,” and she contends that Lieutenant General R.H. should have served as
     the deciding official. PFR File, Tab 1 at 12-13. We agree with the administrative
     judge, however, that the Defense Secretary’s memorandum does not limit the
     number of delegations that can be made, but rather imposes only the level of
     agency official below which such responsibilities cannot be delegated. ID at 10;
     Master Administrative Record, Tab 7.       We thus agree with the administrative
     judge that the provision highlighted by the appellant is intended to set the
     minimum qualifications for the agency officials who can serve as a deciding
     official. Although this provision, read in isolation, could be construed to limit
     any additional delegation of authority beyond that made to Lieutenant General
     R.H., such provisions generally must be read holistically, rather than in isolation.
     See, e.g., Garza v. Office of Personnel Management, 83 M.S.P.R. 336, ¶ 5 (1999),
     aff’d, 250 F.3d 763 (Fed. Cir. 2000) (Table). Reading the delegation of authority
     provision in its entirety, we find that the limitation identified by the appellant did
     not preclude Lieutenant General R.H. from delegating the deciding official’s
     responsibilities to Colonel S.S.
¶9         We further find no evidence in the record supporting the appellant’s
     alternative argument that Colonel S.S. fell below the level of employee identified
     in the Defense Secretary’s memorandum as being qualified to serve as a deciding
     official. PFR File, Tab 1 at 14-15. Rather, guidance issued by the Secretary of
     the Army explained that a colonel could serve as a deciding official, see Master
     Administrative Record, Tab 9, and the appellant has presented no supporting
     evidence that the colonel was not a “senior civilian or equivalent who would be in
     the best position to determine the fair and equitable implementation of the
     furlough.” Although the appellant argues on review that the colonel was not an
     individual who exercised command under the Army Command Policy, see PFR
                                                                                              7

      File, Tab 1 at 15, the Defense Secretary’s memorandum contains no such
      requirement that the deciding official exercise a degree of command, and we
      decline to read such a limitation into the memorandum.                      See Master
      Administrative Record, Tab 7. We thus find no merit to the appellant’s argument
      that the agency committed harmful procedural error by delegating Colonel S.S. as
      the deciding official. 5
¶10         Finally, we discern no harmful error with the deciding official’s use of a
      delegated oral reply official or the circumstances surrounding his consideration of
      the appellant’s oral response. In Ronso, 122 M.S.P.R. 391, ¶¶ 12-16, the Board
      found the use of a designated oral reply official consistent with agency policy,
      and we similarly find that the agency’s guidance envisioned the use of an oral
      reply official in this case.         See Master Administrative Record, Tab 9.
      Additionally, although the deciding official acknowledged that he did not receive
      a summary of the appellant’s oral reply until after he issued a decision on the
      proposed furlough, the deciding official averred that he received and considered
      the appellant’s written response prior to issuing his decision letter, which was
      substantially similar to her oral reply, and that it presented no new information
      that would have influenced his decision. IAF, Tab 5 at 19-20, Tab 22 at 27. In
      light of the deciding official’s declaration that the oral reply summary would not
      have altered his decision to furlough the appellant, we cannot find that his delay
      in considering the oral reply summary amounted to harmful error. 6

      5
        Alternatively, even if the delegation of authority to Colonel S.S. to serve as the
      deciding official was contrary to the Defense Secretary’s memorandum, the appellant
      has presented no evidence that the agency would have reached a different result had a
      different individual served as the deciding official. See Canary v. U.S. Postal Service,
      119 M.S.P.R. 310, ¶ 12 (2013) (explaining that harmful error cannot be presumed).
      6
         We find these facts distinguishable from Massey v. Department of the Army,
      120 M.S.P.R. 226, ¶ 5 (2013), where the deciding official issued a decision letter
      without considering any reply from the appellant. Unlike that case, where the Board
      found the agency denied the appellant due process based on the deciding official’s
      failure to consider “any response,” here, the deciding official considered the appellant’s
      written response prior to issuing his decision letter. IAF, Tab 22 at 27. We cannot find
                                                                                           8

¶11         Based on the foregoing, the appellant’s petition for review is denied, and
      the administrative judge’s initial decision sustaining the 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 U.S.
      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 Appellants,”
      which is contained within the court’s Rules of Practice, and Forms 5, 6, and 11.




      that the appellant has been denied a meaningful opportunity to be heard under the facts
      of this case. See Massey, 120 M.S.P.R. 226, ¶¶ 8, 10.
                                                                                 9

      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
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in a given case.




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