                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     TRACY A. ALLRED, 1                              DOCKET NUMBER
                   Appellant,                        DC-0752-13-3062-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: June 11, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Tracy A. Allred, APO, APO/FPO Europe, pro se.

           Bradley E. Eayrs, Fort Belvoir, Virginia, 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 the furlough action. Generally, we grant petitions such as this one only
     when: the initial decision contains erroneous findings of material fact; the initial


     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Medical
     Command I v. Department of the Army, MSPB Docket No. DC-0752-14-0162-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. We MODIFY
     the initial decision to address the appellant’s claim of harmful procedural error
     and to supplement the administrative judge’s due process analysis regarding the
     deciding official’s decisional independence. Except as expressly modified by this
     Final Order, we AFFIRM the initial decision.

                                     BACKGROUND
¶2        The appellant filed a Board appeal, challenging the agency’s decision to
     furlough her for 6 days, and she requested a hearing. Initial Appeal File (IAF),
     Tab 1; see IAF, Tab 5 at 6-9 (agency time cards), 10-11 (furlough Standard Form
     50), 12-14 (notice of decision to furlough), 19-21 (notice of proposed furlough).
     The appellant was informed that her appeal was consolidated with the appeals of
     similarly situated employees. Medical Command I v. Department of the Army,
     MSPB Docket No. DC-0752-14-0162-I-1, Consolidated Appeal File (CAF), Tab
     1. The appellant alleged that the agency’s action constituted harmful procedural
     error and a violation of due process. See, e.g., IAF, Tabs 4, 6, 10. The appellant
     subsequently waived her right to a hearing. See IAF, Tab 9.
¶3        The administrative judge issued an initial decision in which she affirmed
     the furlough actions. CAF, Tab 14, Initial Decision (ID). The administrative
                                                                                           3

     judge found that the Department of Defense (DOD) faced a lack of funds and that
     the furloughs were a reasonable management solution to this problem. See ID at
     4-5. She further found that the furloughs promoted the efficiency of the service
     and that the agency determined which attorneys to furlough in a fair and even
     manner. See ID at 5. The administrative judge acknowledged the appellants’
     assertions that the deciding official did not have authority to furlough them
     because the authority was retained at a higher level and that the deciding official
     did not have the authority to reach a decision different than the action stated in
     the proposal notice.    See ID at 3.      The administrative judge analyzed these
     assertions as a violation of due process, and she concluded that:                (1) the
     appellants received meaningful due process; (2) the delegated deciding official
     had authority to furlough the appellants; (3) guidance from the Secretary of
     Defense “did not impinge on the ability of the deciding official in this case to
     exercise independent judgment regarding the sustaining of the proposed adverse
     action”; and (4) the fact that the deciding official did not except the appellants
     from the furlough does not mean that he did not have the authority to do so. ID at
     5-7.
¶4          The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶5          On   review,   the   appellant   contends   that   the   administrative    judge:
     (1) wrongly concluded that the deciding official, a Brigadier General, had the
     authority to furlough her because the delegation to him had been withdrawn and
     not re-delegated in a signed writing; (2) mischaracterized her due process
     argument and failed to address her assertion that the Brigadier General lacked the
     requisite independence, neutrality, and impartiality required of a deciding
     official; (3) ignored the parties’ stipulation that a shortage of funds did not cause
     her furlough; and (4) wrongly concluded that the funding levels of the Europe
                                                                                       4

     Regional Medical Command (ERMC), the appellant’s organization, were not
     relevant to the furlough decision. PFR File, Tab 1 at 4-7.
¶6        Regarding the appellant’s assertion that the deciding official did not have
     the authority to furlough her, the appellant raised this assertion as a claim of
     harmful procedural error below, see CAF, Tab 5, but the administrative judge did
     not discuss it as such in the initial decision.   We therefore modify the initial
     decision to analyze this issue as a claim of harmful procedural error, but we
     conclude that the appellant did not prove this affirmative defense.
¶7        The relevant facts are largely undisputed. The Assistant Secretary of the
     Army delegated deciding official authority to a Lieutenant General who then
     delegated deciding official authority to the Brigadier General. See Department of
     the Army Administrative Record for FY 2013 Furlough Appeals (Army File), Tab
     9, available at http://www.mspb.gov/furloughappeals/army2013.htm; CAF, Tab
     3, Subtab 4j; see also CAF, Tab 13 at 11 (declaration). Subsequently, on June 5,
     2013, the Lieutenant General issued a memorandum in which she attempted to
     exempt eleven attorneys, including the appellant, from the furlough. See IAF,
     Tab 10 at 9. 3 In this memorandum, the Lieutenant General stated that she was
     “retaining [her] authority as the Deciding Official for these specific personnel,”
     and she explained that she was “exempting these employees in [her] role as
     Deciding Official . . . under authority given [to her] by the Secretary of the
     Army.” Id. The Lieutenant General subsequently stated, in a declaration made
     under penalty of perjury, that she was informed that, even as the deciding official,
     she was not authorized to exempt these attorneys until after providing notice and
     considering their responses. See CAF, Tab 13 at 11-12. The Lieutenant General
     therefore directed her Chief of Staff to rescind the June 5, 2013 memorandum.
     See id. The Lieutenant General stated in her declaration that after she rescinded

     3
       Because the appellant’s petition for review only discusses the June 5, 2013
     memorandum, we do not discuss the Lieutenant General’s earlier attempt to exempt
     these attorneys. See, e.g., CAF, Tab 13 at 11.
                                                                                         5

     the June 5, 2013 memorandum, she “decided to allow [the] commanders that [she]
     had designated as deciding officials to take whatever actions they felt appropriate
     in deciding whether to exempt these attorneys from the furlough” and that she
     “took no further actions regarding the possible exemption of [the] attorneys.” Id.
     at 12. On July 1, 2013, the Brigadier General informed the appellant that she
     would be furloughed. See IAF, Tab 5 at 12-14. There is no evidence in the
     record that the Lieutenant General subsequently played any role in the agency’s
     decision to furlough the appellant.
¶8         The record reflects that “[a]ny designation as a Deciding Official and
     re-delegation of the requisite authorities will take effect only when it is in writing
     and signed by the designating official.” Army File, Tab 9 at 65. The parties
     stipulated that the Lieutenant General’s June 5, 2013 memorandum was never
     rescinded in writing. See IAF, Tab 10 at 11. We understand the appellant’s claim
     of error to be that the Lieutenant General failed to re-delegate in writing deciding
     official authority to the Brigadier General after she issued the June 5, 2013
     memorandum and before he issued the decision on the appellant’s furlough. See,
     e.g., id. at 6. Based on our review of the record, the appellant has not persuaded
     us that any such error occurred.
¶9         Only if the delegated deciding official authority to the Brigadier General
     had been withdrawn would there be a need for a written re-delegation of this
     authority. There is no evidence, however, that the Lieutenant General intended
     the June 5, 2013 memorandum to constitute withdrawal of any deciding official
     authority that she previously had delegated to the Brigadier General.             The
     memorandum itself does not state that any delegated deciding official authority
     was being withdrawn. See id. at 9. Moreover, the Lieutenant General stated in
     her declaration that “[i]t was not [her] intent to withdraw any authority that [she]
     had delegated to any of [her] subordinate commanders” in the June 5, 2013
     memorandum, and she explained that if she wanted to withdraw that authority,
     she “would have specifically stated that [she] was withdrawing the authority from
                                                                                      6

      the individual commanders.”     CAF, Tab 13 at 12.     She further declared that
      “[e]ach commander who was designated as a deciding official . . . continued to be
      authorized to act as a deciding official throughout the administrative furlough
      process.”   Id.   The appellant offers no persuasive evidence to challenge the
      Lieutenant General’s statements in this regard, and we conclude that the June 5,
      2013 memorandum did not constitute a withdrawal of the deciding official
      authority that had been delegated to the Brigadier General. In the absence of any
      withdrawal of the delegated deciding official authority to the Brigadier General,
      there was no need for a written re-delegation of this authority, and, thus, there
      was no error.
¶10        Even if we assumed for the purposes of our analysis that the June 5, 2013
      memorandum constituted a withdrawal of the deciding official authority that had
      been delegated to the Brigadier General, and that the re-delegation of such
      authority was never made in writing, contrary to agency procedures, the appellant
      must still prove that the agency’s error was harmful. An agency error is harmful
      only where the record shows that the procedural error was likely to have caused
      the agency 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). The Board may not assume that an
      employee has been harmed by a procedural error in the adverse action process;
      rather, the appellant bears the burden of proving harm. Pumphrey v. Department
      of Defense, 122 M.S.P.R. 186, ¶ 10 (2015).
¶11        Although the nature of the harm asserted by the appellant is unclear, she
      appears to content on review that she would have been exempted from the
      furlough were it not for the agency’s error in failing to re-delegate in writing
      deciding official authority to the Brigadier General. See PFR File, Tab 1 at 5
      (arguing that “the only person with authority to furlough [the] Appellant was [the
      Lieutenant General], and she exercised that authority to exempt [the] Appellant
                                                                                        7

      from the furlough”). The appellant has not proven that she was harmed by this
      alleged agency error.
¶12        The appellant’s apparent contention that she would have been exempted
      absent the agency’s error is at best speculative, and the Board has held that such
      speculation does not constitute harm. See, e.g., Defense Intelligence Agency v.
      Department of Defense, 2015 MSPB 35, ¶¶ 13-15 (concluding that, even if the
      agency’s instruction required that the proposing and deciding officials be in the
      appellant’s supervisory chain, the appellant’s speculation that the attorneys in his
      supervisory chain “may well have worked to exempt” him from the furlough had
      they been made aware of certain information did not meet his burden of proving
      that the agency’s failure to assign the appropriate proposing and deciding
      officials was likely to have caused the agency to reach a different decision on the
      proposed furlough action); Pumphrey, 122 M.S.P.R. 186, ¶¶ 9-11 (even if the
      agency should have granted the appellant’s requests for official time and an
      extension of time to reply to the proposal notice, the appellant’s speculation was
      insufficient to meet his burden of proving harm).
¶13        Regarding the appellant’s assertion that the Brigadier General did not have
      the requisite decisional independence, we modify the initial decision to
      supplement the administrative judge’s due process analysis, but we conclude that
      the appellant did not prove that the agency violated her due process rights.
¶14        The Board considered and rejected a similar argument regarding decisional
      independence in Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶¶ 4, 6, 9
      (2014), which was issued after the initial decision in this matter was issued. In
      Kelly, the Board noted that the deciding official provided a declaration made
      under penalty of perjury, which: (1) explained that he carefully reviewed each
      individual’s submission, the agency’s documents relied upon in issuing the
      proposal notice, any supporting documents submitted by the appellants, and the
      reply official’s recommendation; (2) stated that he “made an individual
      determination if the proposed action stated any basis for an exemption and issued
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      a decision specifying the basis for [his] determination”; and (3) asserted that he
      had “authority to individually exempt an employee if they [sic] met an
      exemption.”   Id., ¶ 9.   Based on this evidence, the Board concluded that the
      agency’s procedures satisfied the requirements of due process. Id.
¶15        The record in this matter contains a similar declaration from the Brigadier
      General, which stated, in relevant part:
            I considered any and all submissions made to me in response to the
            proposed notice of furlough. I had the full authority to implement,
            mitigate, or rescind the furlough for each. I never felt any pressure
            from my higher headquarters . . . or leaders to furlough employees.
            I exercised sole authority over the decisions to furlough.
            ...
            I believed that I had full latitude to take action and that the matter
            was directed to the Regional Medical Center . . . level for
            consideration and action. Had I thought it was appropriate, I had the
            option to implement, mitigate, rescind[, ]and later recall personnel
            from furlough. . . .[T]he ERMC Command Judge Advocate[] did seek
            exemptions on his subordinate’s behalf; however, I did not agree
            with his recommendation, which was within my authority as the
            Deciding Official.
      CAF, Tab 9 at 19-20.       Based on this evidence, we find that the agency’s
      procedures satisfied due process, see Kelly, 121 M.S.P.R. 408, ¶ 9, and the
      appellant has not proven her assertion of a due process violation.
¶16        Finally, we understand the appellant’s arguments regarding ERMC funding
      to challenge the administrative judge’s conclusion that the agency had a lack of
      funds and that the furloughs met the efficiency of the service. See, e.g., PFR File,
      Tab 1 at 6 (“If no lack of funding was foreseen [at ERMC] this necessarily is also
      evidence that higher units and commands, to include the [DOD], also did not have
      a lack of funds necessitating the appellant’s furlough.”). The appellant correctly
      asserts on review that the administrative judge did not mention in the initial
      decision that the parties stipulated that the ERMC “did not experience or foresee
      a deficit or lack of funds necessitating” the appellant’s furlough. PFR File, Tab 1
      at 6; see ID; see also IAF, Tab 10 at 11 (stipulation). However, an administrative
                                                                                       9

      judge’s failure to mention all of the evidence of record does not mean that she did
      not consider it in reaching her decision. Marques v. Department of Health &
      Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir.
      1985) (Table).
¶17        Even if we consider the parties’ stipulation and the appellant’s arguments
      regarding ERMC funding on review, a different outcome is not warranted. In Yee
      v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014), the Board held that,
      even though the appellants alleged that there was adequate funding in the Navy to
      avoid the furloughs, it was reasonable for DOD to consider its budget situation
      holistically, rather than isolating each individual military department’s situation
      in making furlough decisions. Similarly, here, even if the ERMC had adequate
      funding to avoid the appellant’s furlough, it was reasonable for DOD to consider
      its budget situation holistically, rather than isolating the situation of each
      individual Army organization or component.        See id.; see also Einboden v.
      Department of the Navy, 122 M.S.P.R. 302, ¶ 15 (2015). The appellant has not
      provided any evidence that the administrative judge erred when she concluded
      that DOD faced a lack of funds or that the appellant’s furlough was a reasonable
      management solution to this problem.      We therefore affirm the administrative
      judge’s finding that the furloughs promoted the efficiency of the service.

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
      request the United States Court of Appeals for the Federal Circuit to review this
      final decision.   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
                                                                                 10

      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 your appeal to
the 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 Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
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FOR THE BOARD:     ______________________________
                   William D. Spencer
                   Clerk of the Board
Washington, D.C.
