                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DLA - HOLWICK, 1                                DOCKET NUMBER
                   Appellant,                        DC-0752-15-0780-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: March 10, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Duane E. Lowden, Fort Washington, Maryland, pro se.

           Thomas L. Mills, Fort Belvoir, Virginia, pro se.

           Michael Lawrence Walters, Esquire, and Richard Saviet, Esquire, Fort
             Belvoir, Virginia, 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, which
     sustained their furloughs. Generally, we grant petitions such as these only when:
     1
       The appellants that are included in this consolidation are set forth in Appendix A to
     this order.
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 petitioners have not established any basis under
     section 1201.115 for granting the petitions for review. Therefore, we DENY the
     petitions for review and AFFIRM the initial decision, which is now the Board’s
     final decision. 5 C.F.R. § 1201.113(b).
¶2        A number of employees for the agency’s Defense Logistics Agency (DLA)
     in Fort Belvoir, Virginia filed the instant appeal, challenging their furlough of
     6 workdays between July and September 2013. See, e.g., Lowden v. Department
     of Defense, MSPB Docket No. DC-0752-13-5443‑I‑1, Initial Appeal File
     (Lowden IAF), Tab 2, Tab 5 at 4, 9; Mills v. Department of Defense, MSPB
     Docket No. DC-0752-13-4718-I-1, Initial Appeal File (Mills IAF), Tab 2, Tab 7
     at 4, 9.   The administrative judge consolidated the appeals for adjudication.
     DLA – Holwick v. Department of Defense, MSPB Docket No. DC-0752-15-0780-
     I-1, Consolidation Appeal File (CAF), Tab 1.      Because none of the appellants
     appeared for a prehearing conference, the administrative judge canceled the
     scheduled hearing and issued a decision on the written record, affirming the
     furloughs. CAF, Tab 10, Tab 14, Initial Decision (ID).
¶3        Two appellants have filed petitions for review of the initial decision.
     Lowden v. Department of Defense, MSPB Docket No. DC-0752-13-5443-I-1,
     Petition for Review (Lowden PFR) File, Tab 2; Mills v. Department of Defense,
     MSPB Docket No. DC-0752-13-4718-I-1, Petition for Review (Mills PFR) File,
                                                                                         3

     Tab 1. 3 In short, the appellants reassert that they were similarly situated to a
     number of employees who were exempted from the furloughs, and the agency
     failed to provide sound justification for the different treatment. E.g., Lowden
     PFR File, Tab 1 at 4-5. The agency has filed a response to each petition. Lowden
     PFR File, Tab 2; Mills PFR File, Tab 2. One appellant has filed a reply. Lowden
     PFR File, Tab 3.
¶4        A furlough of 30 days or less is reviewable by the Board under the
     “efficiency of the service” standard of 5 U.S.C. § 7513(a).              Chandler v.
     Department of the Treasury, 120 M.S.P.R. 163, ¶ 5 (2013). The Board has found
     that an agency satisfies the efficiency of the service standard 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.” 4 Id., ¶ 8 (quoting Clark v.
     Office of Personnel Management, 24 M.S.P.R. 224, 225 (1984)). A fair and even
     manner means that the agency applied the furlough action uniformly and
     consistently. Id. An agency is not required to apply a furlough in such a way as
     to satisfy the Board’s sense of equity. Id. An agency is required to treat similar
     employees similarly and to justify any deviations with legitimate management
     reasons. Id.
¶5        The agency presented evidence that police officers at DLA, Fort Belvoir,
     generally fell into one of four categories:      (a) GS-6/7 rank and file officers;
     (b) GS-9/10    nonadministrative   supervisory    police   officers;   (c)   GS-11/12
     administrative and supervisory police officers; and (d) GS-9 administrative and
     nonsupervisory training officers/instructors.    E.g., CAF, Tab 13 at 4-5.       The

     3
      Although the appellants filed separate petitions for review, the arguments contained
     within mirror one another. Compare Lowden PFR File, Tab 1, with Mills PFR File,
     Tab 1.
     4
       The appellants do not contest that furloughs were a reasonable management solution
     to the agency’s budgetary constraints. See, e.g., Lowden IAF, Tab 2 at 16-17; Lowden
     PFR File, Tab 1 at 5.
                                                                                          4

     agency determined that the police officers in categories (a) and (b) would be
     exempt from the furloughs because they were necessary to protect life and
     property, while those in categories (c) and (d) were not necessary and would be
     furloughed. 5 E.g., CAF, Tab 5 at 21, Tab 13 at 4-5.
¶6         The appellants currently before us are among those in category (d); they
     hold the GS-9 position of Police Officer Instructor. Lowden IAF, Tab 5 at 9;
     Mills IAF, Tab 7 at 9; CAF, Tab 13 at 5. However, they reassert that they are
     similarly situated to officers who were exempted from the furloughs because they
     all are classified as series 0083 Federal Law Enforcement Officers and they all
     are subject to physical fitness standards. E.g., Lowden PFR File, Tab 1 at 4-5.
     The appellants further argue that, although they perform additional teaching
     functions, they perform law enforcement duties similar to those of the exempted
     officers, even doing so during the furlough period, generally, so the agency could
     avoid the use of overtime. Id. at 5. We discern no basis for disturbing the initial
     decision, including the administrative judge’s finding that the furloughed
     appellants were not similarly situated to those excepted from the furlough. See
     ID at 11‑13.
¶7         Which employees are similarly situated for purposes of an adverse action
     furlough will be decided on a case-by-case basis, but the Board will be guided by
     reduction-in-force (RIF) principles, including RIF competitive-level principles.


     5
       In implementing furloughs, generally, the Secretary of Defense created a number of
     limited exemptions. See Defense Logistics Agency Administrative Record for FY 2013
     Furlough Appeals (AR), Part 2, Tab 7 at 94-95, available at http://www.mspb.gov/
     furloughappeals/dla2013.htm. Included was a provision that provided, “In order to
     avoid harm to mission, those employees necessary to protect safety of life and property
     are excepted to the extent necessary to protect life and property.” Id. at 94. Although
     the appellants argue that they are similarly situated to some employees the agency
     deemed excepted under that provision, they do not argue that the provision mandated
     they also be excepted. See, e.g., Lowden PFR File, Tab 1 at 4-5; see generally Lopez v.
     Department of the Navy, 121 M.S.P.R. 647, ¶ 11 (2014) (recognizing that the exception
     contemplated that some employees occupying positions that are generally necessary to
     protect life and property could be excepted while others would not be excepted).
                                                                                             5

     Chandler, 120 M.S.P.R. 163, ¶ 8; see Weathers v. Department of the
     Navy, 121 M.S.P.R. 417, ¶ 6 (2014); 5 C.F.R. § 752.404(b)(2). In determining
     the retention standing of competing employees during a RIF, each agency must
     establish competitive levels consisting of all positions in a competitive area
     which are in the same grade (or occupational level) and classification series, and
     which are similar enough in duties, qualification requirements, pay schedules, and
     working conditions so that an agency may reassign the incumbent of one position
     to any of the other positions in the level without undue interruption.
     Weathers, 121 M.S.P.R. 417, ¶ 8 (citing 5 C.F.R. §§ 351.401, 351.403(a)(1)).
¶8         Considering the aforementioned RIF competitive-level principles, it is
     evident that the GS-9 appellants are not similarly situated to the GS-6/7
     rank-and-file officers the agency exempted from the furlough because they hold
     different grade levels. Compare CAF, Tab 13 at 8-16 (GS-0083-06 Police Officer
     position   description),    18-26 (GS-0083-07       Lead    Police    Officer    position
     description), with id. at 52-55 (GS-0083-09 Police Officer Instructor position
     description); see Naval Station Norfolk – Hearing 2 v. Department of the
     Navy, 123 M.S.P.R. 144, ¶¶ 17-18 (2016) (finding that detective and police
     officer positions required different competitive levels in the context of a furlough
     because they occupied different grade levels). This is so, despite the positions
     sharing the same classification series.       See Naval Station Norfolk – Hearing
     2, 123 M.S.P.R. 144, ¶ 21 (recognizing that the inclusion of positions in the same
     classification series does not require an agency to place them in the same
     competitive level).
¶9         Next, even if the appellants intended to assert that they are similarly
     situated to the exempted nonadministrative supervisory officers, 6 we would


     6
       In their petitions, the appellants generally alleged that they are similarly situated to
     officers who were exempt from the furloughs. E.g., Lowden PFR File, Tab 1 at 4-5.
     However, that argument appears directed at the rank-and-file officers, not supervisory
     officers. See id. Although the appellants have alleged that they perform law
                                                                                       6

disagree.   For positions to occupy the same competitive level, anyone who
qualifies for one position must be able to qualify for all. Id., ¶ 19. It is the
nature of the positions, not the qualifications of the incumbents, which determines
properly established competitive levels. Id. Comparing the position description
of the nonadministrative supervisory officers who were exempted from the
furlough with that of the appellants, only the former requires serving as an
immediate supervisor to three to five officers, while only the latter includes
duties such as developing training programs based upon regulatory requirements,
budgetary forecasting, and coordinating tuition assistance.            Compare CAF,
Tab 13 at 28-34 (GS-0083-09 Supervisory Police Officer position description),
with id. at 52-55 (GS-0083-09 Police Officer Instructor position description).
Therefore, they belong in separate competitive levels.               See Coleman v.
Department of Education, 21 M.S.P.R. 574, 580-81 (1984) (finding that evidence
supported separate competitive levels where the duties and responsibilities of a
supervisory position “obviously differ[ed] from those of nonsupervisory positions
in that they involve responsibility for the supervision of other employees,”
despite both falling within the same occupational series). As such, we find that
the appellants were not similarly situated to the supervisory officers for purposes
of the furlough, and the administrative judge properly sustained their furloughs.
See Naval Station Norfolk – Hearing 2, 123 M.S.P.R. 144, ¶¶ 20-21 (finding that
detectives and supervisory police officers were not similarly situated for purposes
of a furlough because, inter alia, the detective position did not include regular
supervisory duties or responsibilities).




enforcement duties in addition to their instructor duties, they have not argued that they
perform supervisory duties. See id.
                                                                                  7

                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 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
                                                                                  8

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.
                                                       9


                     APPENDIX A

                    DLA - Holwick
                  DC-0752-15-0780-I-1


Duane E. Lowden                  DC-0752-13-5443-I-1
Thomas L. Mills                  DC-0752-13-4718-I-1
