                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     DLA MARITIME,                                   DOCKET NUMBER
                         Appellants,                 NY-0752-14-0286-I-1

                  v.

     DEPARTMENT OF DEFENSE,
                 Agency.                             DATE: November 3, 2016



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Michael Robert Schesser, New Market, New Hampshire, pro se.

           Robert N. Williams, Kittery, Maine, pro se.

           Adam J. Heer, Esquire, and C. Michael Meehan, Esquire, Columbus, Ohio,
             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
     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;

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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         The appellants are employees of the agency’s Defense Logistics Agency
     (DLA), Maritime, in Portsmouth, New Hampshire. 2 Williams v. Department of
     Defense, MSPB Docket No. PH-0752-13-5209-I-1, Initial Appeal File (Williams
     IAF), Tab 1 at 13; Schesser v. Department of Defense, MSPB Docket No.
     PH-0752-13-1383-I-1, Initial Appeal File (Schesser IAF), Tab 1 at 8. 3 They were
     notified in May 2013, that the agency intended to impose a furlough of up to
     11 workdays or 88 hours because of the “extraordinary and serious budgetary
     challenges facing the Department of Defense (DOD) for the remainder of Fiscal
     Year (FY) 2013.” Consolidation Appeal File (CAF), Tab 6 at 20. The furlough
     2
       This appeal consolidates individual appeals pursuant to 5 C.F.R. § 1201.36(a). Only
     two of the original six appellants filed petitions for review, Robert N. Williams, MSPB
     Docket No. PH-0752-13-5209-I-1, and Michael Robert Schesser, MSPB Docket
     No. PH-0752-13-1383-I-1. Our findings herein apply only to these two appellants and
     not to the other appellants who were part of the consolidated group but did not file
     petitions for review. See Dye v. Department of the Army, 121 M.S.P.R. 142, ¶ 1
     n.2 (2014).
     3
       We have cited to both the Consolidation Appeal File, which comprises documents
     submitted under MSPB Docket No. NY-0752-14-0286-I-1, and the Initial Appeal Files
     and Petition for Review Files of individual appellants, which are distinguished by
     their surnames.
                                                                                      3

     resulted from the sequestration requiring across-the-board reductions in Federal
     spending pursuant to the Balanced Budget and Emergency Deficit Control Act
     (BBEDCA), as amended, as well as the misallocation of funds while DOD was
     operating under a continuing resolution and incurring unexpectedly high wartime
     costs. Complete Defense Logistics Agency Administrative Record for FY 2013
     Furlough Appeals (CAR) at 5. 4
¶3        In June 2013, the agency notified the appellants that they would be on a
     discontinuous   furlough     between   July 8,   2013   and   September 30,   2013.
     Schesser IAF, Tab 6 at 14-17; Williams IAF, Tab 4 at 14-17.           The agency
     subsequently reduced the number of furlough days to 6 days, which the appellants
     served. Schesser IAF, Tab 6 at 4-12; Williams IAF, Tab 4 at 4-12. The instant
     appeal consolidated the appeals from six agency employees. CAF, Tab 1.
¶4        The administrative judge found that the agency proved by preponderant
     evidence the factual basis for the furlough and that the furlough promoted the
     efficiency of the service.     CAF, Tab 10, Initial Decision (ID) at 5-9.      The
     administrative judge further found the appellants failed to meet their burdens of
     proof regarding several issues certain appellants raised in challenging the agency
     action. ID at 9-16. Among other things, the appellants asserted that: the DLA
     had sufficient funds to avoid a furlough, but its parent agency, DOD, imposed an
     across-the-board approach that unnecessarily included subordinate agencies; the
     DLA should have been exempt from the furlough because some functions it
     supported were exempt, including the Portsmouth Naval Shipyard; and the DLA
     wasted funds by scheduling overtime both in anticipation of and during the
     furlough. ID at 9-16. The appellants additionally argued that they should have
     been able to choose their own furlough days, and that the DLA failed to provide
     materials showing that the furlough was necessary, how it calculated the proposed

     4
       The CAR is a group of documents pertaining to all DLA appeals for the 2013
     sequestration furlough.   The CAR may be found on the Board’s website at
     http://www.mspb.gov/furloughappeals/dla2013.htm.
                                                                                       4

     number of furlough days, and evidence supporting the specific number of
     furlough days. ID at 10-13. The administrative judge found the appellants raised
     issues that were beyond the scope of the Board’s jurisdiction, or that their
     concerns had been properly addressed by the agency.             ID at 9-16.     The
     administrative judge thus affirmed the furlough action. ID at 16. Two appellants,
     Robert N. Williams and Michael Robert Schesser, filed petitions for review.
     Appellant Williams
¶5        Appellant Williams reiterates his argument that he did not receive evidence
     that a furlough was necessary, showing the DLA’s basis for the proposed number
     of furlough days, or its bases for selecting the specific days upon which he served
     furlough time. Williams v. Department of Defense, MSPB Docket No. PH-0752-
     13-5209-I-1, Petition for Review (Williams PFR) File, Tab 1 at 4; Williams IAF,
     Tab 1 at 6.   He additionally asserts that he was not allowed to choose his
     furlough days. Williams PFR File, Tab 1 at 4-5; Williams IAF, Tab 1 at 5. He
     explains that he had scheduled a vacation for early September 2013, and should
     have been able to serve his furlough days during that time. Williams PFR File,
     Tab 1 at 4-5; Williams IAF, Tab 1 at 5. He asserts that his request to choose his
     own furlough days went unanswered, and further, that the administrative judge
     did not address this issue to his satisfaction in the initial decision. Williams PFR
     File, Tab 1 at 5. In support of his argument, he cites AFGE, Local 32 & Office of
     Personnel Management, 22 F.L.R.A. 307 (1986), aff’d sub nom. Office of
     Personnel Management v. Federal Labor Relations Authority, 829 F.2d 191 (D.C.
     Cir. 1987) (Table). Id.
¶6        We disagree.     The administrative judge properly addressed all of these
     issues in the initial decision. Appellant Williams either received the information
     he asserts that the DLA did not provide, or he failed to show that the DLA denied
     him access to the information when he requested it. Because the furlough action
     was taken pursuant to the adverse action procedures set forth in chapter 75, he
     received notice of the proposed furlough action and an opportunity to reply before
                                                                                           5

     the DLA issued a final decision. Williams IAF, Tab 4 at 18-22. The proposal
     notice set forth the agency’s reasons as to why the furlough was necessary. Id.
     at 20; see 5 U.S.C. § 7513(b)(1) (“An employee against whom an action is
     proposed is entitled to . . . at least 30 days’ advance written notice . . . stating the
     specific reasons for the proposed action.”). The proposal notice also informed
     him of his right to review the materials upon which the agency relied in taking the
     furlough action.     Williams IAF, Tab 4 at 21; see 5 C.F.R. § 752.404(b)(1).
     Appellant Williams has not asserted that the DLA denied any request on his part
     to examine these materials. Instead, he argues, the information to which he was
     provided access was unresponsive because it failed to show why it was necessary
     to furlough him, or to show how the DLA calculated the number of furlough days
     he would serve. Williams PFR File, Tab 1 at 5.
¶7         The agency’s burden of proof, however, was to show that the furlough was
     a reasonable management solution to the financial restrictions placed on it and
     that it selected the employees to be furloughed in a fair and even manner.
     Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Review
     of the proposal and decision notices shows that Appellant Williams received such
     information in support of the DLA’s decision to furlough him. In the decision
     notice, for example, the deciding official specifically addressed any concerns as
     to whether the furlough was justified, citing a May 14, 2013 memorandum from
     the Secretary of Defense discussing the budgetary shortfalls leading to the
     agency’s decision. Williams IAF, Tab 4 at 14, 19; CAR, Tab 7. Additionally, the
     deciding official cited BBEDCA and The American Taxpayer Relief Act of 2012,
     which    was    enacted     in   January 2013,     establishing      the   sequestration
     process. Williams IAF, Tab 4 at 14. The proposal notice directed the appellant
     to various sources of information regarding the furlough, including a special DLA
     furlough website containing materials from the CAR.               Id. at 21.   Appellant
     Williams has not shown why he might be entitled to information beyond that with
     which he was provided or could have readily accessed.              As for the agency’s
                                                                                       6

      calculation of the number of furlough days that employees would be required to
      serve, various documents in the CAR address its considerations. See, e.g., CAR
      at 92.
¶8             Even if the agency-provided information had been insufficient, Appellant
      Williams would have had to show harmful error for the Board to disturb the
      initial decision. Harmful error cannot be presumed; instead, an appellant must
      show that the agency’s error is likely to have caused it to reach a conclusion
      different from the one it would have reached in the absence or cure of the error.
      Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 681, 685 (1991); see,
      e.g., Gilmore v. U.S. Postal Service, 103 M.S.P.R. 290, ¶¶ 6-16 (2006), aff’d,
      262 F. App’x 276 (Fed. Cir. 2008). Appellant Williams failed to show that the
      agency would have reached a different decision had it provided the information
      he believes he was denied.
¶9             Regarding the selection of the specific days upon which Appellant Williams
      served the furlough, the agency’s decisions on this are beyond the scope of our
      review. The Board’s efficiency of the service determination does not extend to
      “an agency’s decision to allocate furlough days in a certain manner among
      employees who are not similarly situated.”       Chandler, 120 M.S.P.R. 163, ¶ 9.
      Such matters are instead left to the judgment of agency managers, who are in the
      best position to allocate funding in a manner that will best allow the agency to
      accomplish its mission. Id. As a general matter, the Board will not review an
      agency’s decisions regarding scheduling a furlough, including whether employees
      will be allowed to choose their own furlough days. Id., ¶ 20.
¶10            Appellant Williams has not alleged that he was treated differently from
      other similarly situated employees. As for his assertion that the initial decision
      was inconsistent with AFGE, Local 32 & Office of Personnel Management, the
      Federal Labor Relations Authority (FLRA) found it within an agency’s duty to
      bargain over a union proposal that would allow bargaining unit members to serve
      their furlough days contiguously.      AFGE, 22 F.L.R.A. at 312-13.     The FLRA
                                                                                      7

      explained, however, that it was “mak[ing] no judgment as to the merits” of the
      union’s proposal. Id. at 313 n.9. We also note that, prior to the commencement
      of the furlough here, the agency and Appellant Williams’ bargaining unit entered
      into a memorandum of agreement (MOA) setting forth the procedures the agency
      would follow in administering the furlough.        CAR at 191-93.      The MOA
      expressly states that furlough days were to be “discontinuous and will be either
      the first or last day of the work week.” CAR at 191. The appellant’s argument is
      thus unavailing.
      Appellant Schesser
¶11        Appellant Michael Robert Schesser reasserts his argument from below that
      the agency’s use of overtime to manage its workload before and during the
      furlough was flawed. 5 Schesser v. Department of Defense, MSPB Docket No.
      PH-0752-13-1383-I-1, Petition for Review (Schesser PFR) File, Tab 1 at 3;
      Schesser IAF, Tab 1 at 6.   The agency’s use of overtime before the furlough
      period, however, is beyond the scope of this appeal. As for an agency’s use of
      overtime during the furlough, the Board may consider a claim that an agency
      failed to apply the furlough uniformly and consistently if an appellant makes a
      showing the agency used overtime payments to relieve some employees but not
      others of the financial consequences of the furlough.    Chandler, 120 M.S.P.R.
      163, ¶¶ 12-14, 20. Appellant Schesser has not asserted that scheduling overtime
      hours was used to relieve him or any other person of the financial consequences
      of the furlough. He instead is challenging the DLA’s stated justification for the
      furlough, arguing that the DLA had the resources available to avoid a furlough
      because it had the resources to pay overtime. See, e.g., Schesser PFR File, Tab 1
      at 3. The Board, however, considers the agency’s use of overtime so as to meet
      mission requirements to be a nonreviewable discretionary spending decision.


      5
        The record shows that Appellant Schesser questioned the agency’s practices as to
      scheduled overtime well before the furlough began. Schesser IAF, Tab 3 at 5, 7-8.
                                                                                      8

Chandler,    120 M.S.P.R.    163,   ¶¶ 12‑13.         Accordingly,   the   appellant’s
argument fails.

                  NOTICE TO THE APPELLANTS 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.
      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
                 9

representation
                                                                                 10

for Merit Systems Protection Board appellants before the Federal Circuit. 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:                            ______________________________
                                          Jennifer Everling
                                          Acting Clerk of the Board
Washington, D.C.
