                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                       2015 MSPB 14

                              Docket No. NY-0752-13-0302-I-1

                                     John Lauri Salo, *
                                         Appellant,
                                              v.
                                  Department of Defense,
                                           Agency.
                                      February 13, 2015

           John Lauri Salo, East Northport, New York, pro se.

           Michael R. Montefinise, Esquire, Garden City, New York, for the agency.

           John K. Moroney, Esquire, Boston, Massachusetts, for the agency.

                                          BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice Chairman
                                 Mark A. Robbins, Member



                                  OPINION AND ORDER

¶1         The appellant petitions for review of an initial decision that affirmed the
     agency’s furlough action. For the following reasons, we DENY the appellant’s
     petition for review and AFFIRM the initial decision AS MODIFIED by this
     Opinion and Order, still AFFIRMING the agency’s furlough action.                  We

     *
      Pursuant to 5 C.F.R. § 1201.36(a), this case was part of a consolidation, I n re DCMA
     Eastern Region Hearings v. Department of Defense, MSPB Docket No. NY-0752-14-
     0063-I-1.
                                                                                       2

     MODIFY the initial decision to clarify the administrative judge’s finding that this
     case is governed by the provisions of 5 U.S.C. chapter 75 and 5 C.F.R. Part 752,
     agreeing with his determination that 5 C.F.R. Part 351 does not apply in this case.

                                      BACKGROUND
¶2         The agency’s Defense Contract Management Agency (DCMA) furloughed
     the appellant from his GS-12 Industrial Engineer position for 6 discontinuous
     days. Salo v. Department of Defense, MSPB Docket No. NY-0752-13-0302-I-1,
     Initial Appeal File (IAF), Tab 1 at 7, 9-11, Tab 10 at 4, 11-14. The agency’s
     proposal notice had informed the appellant that the action was “necessitated by
     the extraordinary and serious budgetary challenges facing the Department of
     Defense (DOD) for the remainder of Fiscal Year (FY) 2013, the most serious of
     which is the sequester that began on March 1, 2013,” i.e., across-the-board
     reductions to federal budgetary resources.     IAF, Tab 10 at 22; see 2 U.S.C.
     § 900(c)(2) (as used in 2 U.S.C. chapter 20, subchapter I, the terms “sequester”
     and “sequestration” “refer to or mean the cancellation of budgetary resources
     provided by discretionary appropriations or direct spending law”).
¶3         On appeal to the Board, the appellant asserted that the furlough action did
     not promote the efficiency of the service, the agency continued to hire new
     employees during the furlough, and the agency could have cut other spending
     such as training and travel. IAF, Tab 1 at 5. The appellant also contended that,
     among other things, the agency did not respond to matters he raised in his oral
     and written replies, and the agency should have applied reduction in force (RIF)
     regulations, rather than adverse action procedures, because it discontinuously
     furloughed him for more than 30 days. IAF, Tab 22 at 5-8; see IAF, Tabs 28, 35.
¶4         After a hearing, the administrative judge affirmed the furlough action.
     IAF, Tab 37, Initial Decision (ID) at 2, 19. The administrative judge found that
     the 6-day furlough constituted an adverse action, not a RIF; the agency proved
     the factual basis for the furlough; the furlough promoted the efficiency of the
                                                                                       3

     service; and the agency treated employees in a uniform and consistent manner.
     ID at 3-10. The administrative judge also held that the appellant did not prove
     harmful error or a denial of due process. ID at 10-19.

                                        ANALYSIS
¶5         The appellant asserts on review that the agency should have applied the
     RIF regulations at 5 C.F.R. Part 351 when it furloughed him because the agency
     furloughed him for more than 30 calendar days or more than 22 discontinuous
     workdays.    Petition for Review (PFR) File, Tab 1 at 2-3.       In support of this
     contention, the appellant relies upon question-and-answer guidance, dated
     June 10, 2013, from the Office of Personnel Management (OPM), which he
     claims indicates that a discontinuous furlough of 22 workdays or less would be
     covered by adverse action procedures, while a discontinuous furlough of more
     than 22 workdays would be covered by the RIF procedures.            Id. at 3.   The
     appellant also reasserts his harmful error claim, alleging that the proposal notice
     did not identify all of the employees who were exempt from the furlough and did
     not clearly identify the material the agency relied upon in support of the furlough.
     Id. at 4-5. The appellant further contends that the furlough was not uniform and
     consistent because the agency did not furlough employees outside his competitive
     area, the agency should have permitted employees to be furloughed for
     continuous days so they could collect unemployment, and the decision notice did
     not specifically address issues raised in his oral and written replies to the
     proposal notice. Id. at 5-6. Finally, he asserts that the agency denied most of his
     discovery requests, which would have shown that the furlough was not
     cost-effective. Id. at 7-8.
¶6         “‘[F]urlough’ means the placing of an employee in a temporary status
     without duties and pay because of a lack of work or funds or other
     nondisciplinary reasons.” 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. A furlough
     of 30 days or less is appealable to the Board under 5 U.S.C. chapter 75. 5 U.S.C.
                                                                                     4

     §§ 7512(5), 7513(d), 7701(a); 5 C.F.R. §§ 752.401(a)(5), 752.405(a). A furlough
     of more than 30 days is appealable to the Board as a RIF action.         5 C.F.R.
     § 351.901. Agencies must conduct furloughs of more than 30 days according to
     the RIF procedures of 5 C.F.R. Part 351, and the Board will review such actions
     to determine whether the agency properly invoked and applied the RIF
     regulations.   Chandler v. Department of the Treasury, 120 M.S.P.R. 163,
     ¶ 5 (2013). Agencies may conduct furloughs of 30 days or less without following
     RIF procedures.    Id.   Such actions are reviewable by the Board under the
     “efficiency of the service” standard of 5 U.S.C. § 7513(a).     Id.; see 5 C.F.R.
     § 752.403. Here, the agency took the furlough action under 5 U.S.C. chapter 75
     and applied OPM’s regulations at 5 C.F.R. Part 752. See IAF, Tab 10 at 11-14,
     22.
¶7         The Board will determine whether an action falls under 5 C.F.R. Part 752
     or 5 C.F.R. Part 351 based on the essential nature of the action itself.      See
     Marcoux v. U.S. Postal Service, 63 M.S.P.R. 373, 378 (1994). Here, for purposes
     of 5 C.F.R. Part 351, a furlough means the following:
           [T]he placement of an employee in a temporary nonduty and nonpay
           status for more than 30 consecutive calendar days, or more than 22
           workdays if done on a discontinuous basis, but not more than 1 year.
     5 C.F.R. § 351.203. It is undisputed that the agency placed the appellant in a
     temporary nonpay and nonduty status for only 6 workdays on a discontinuous
     basis. Despite the fact that the length of time the appellant was subject to being
     furloughed may have lasted more than 22 discontinuous workdays, the agency
     actually furloughed the appellant on a discontinuous basis, i.e., placed him in a
     temporary nonduty and nonpay status, less than 22 days. Thus, under the plain
     language of 5 C.F.R. § 351.203, the RIF regulations do not apply.        We find
     support for this determination in Kelly v. Department of the Army, 121 M.S.P.R.
     408, ¶¶ 3, 7, 15 (2014), where the Board applied 5 C.F.R. Part 752, rather than
     5 C.F.R. Part 351, under similar circumstances involving a discontinuous
                                                                                       5

     furlough. See also Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶¶ 3,
     9-10, 14 (2014); cf. Clerman v. Interstate Commerce Commission, 35 M.S.P.R.
     190, 191-93 (1987) (applying 5 C.F.R. Part 351, not 5 C.F.R. Part 752, in a case
     involving an anticipated furlough of administrative law judges for 26
     nonconsecutive workdays). The language from OPM’s June 10, 2013 guidance
     does not require a different result. Accordingly, we agree with the administrative
     judge that the regulations set forth at 5 C.F.R. Part 752, not 5 C.F.R. Part 351,
     apply in this case.
¶8         The appellant alleges on review that the proposal notice did not identify all
     of the employees who were exempt from the furlough in accordance with 5 C.F.R.
     § 752.404(b)(2) and did not clearly identify the material the agency relied upon in
     support of the furlough, PFR File, Tab 1 at 4-5, and that the decision notice did
     not specifically address issues raised in his oral and written replies to the
     proposal notice, id. at 6. Under 5 C.F.R. § 752.404(b)(2), when some but not all
     employees in a given competitive level are being furloughed, the notice of
     proposed action must state the basis for selecting a particular employee for
     furlough, as well as the reasons for the furlough. Here, the appellant has not
     shown a violation of this regulation because he has not demonstrated that some
     but not all employees in his competitive level were furloughed.       See 5 C.F.R.
     § 351.403(a)(1) (each agency shall 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).    In fact, the administrative judge found, and the
     appellant does not dispute, that no Eastern Region employees, including the
     appellant, were exempt from the furlough. See ID at 8-9, 12-14.
¶9         Moreover, a proposal notice must inform the employee of his or her right to
     review the material that is relied on to support the reasons for the action given in
                                                                                       6

      the notice.   5 C.F.R. § 752.404(b).   The appellant has shown no error by the
      agency because the proposal notice advised him that the materials relied on were
      available on the DCMA Furlough Guidance website. See IAF, Tab 10 at 23; see
      also Pumphrey v. Department of Defense, 2015 MSPB 10, ¶ 7 n.2 (when the
      notice of proposed furlough informed the appellant of how to view supporting
      materials at an agency website or a designated Furlough Reading Room, the
      appellant’s vague statement that he was not given pre-decisional access to
      materials relied upon in the notice of proposed furlough did not support a finding
      of harmful error).    Further, the appellant has not identified any regulatory,
      statutory, or judicially imposed requirement that the agency must specifically
      address all arguments raised in a response to a proposal notice.      See Gajdos,
      121 M.S.P.R. 361, ¶ 7; Graham v. U.S. Postal Service, 2 M.S.P.R. 213,
      218 (1980) (there is no regulatory or judicially imposed requirement that the
      agency decision make a finding on any of the defenses raised in the reply); cf.
      Mertins v. Department of the Navy, 61 M.S.P.R. 157, 160 (1994) (there is no
      statutory or regulatory requirement that written agency decisions contain specific,
      detailed information demonstrating that the agency has considered all of the
      pertinent mitigating factors in a given case); Beasley v. Internal Revenue Service,
      15 M.S.P.R. 16, 23 n.9 (1983) (there is no statutory or regulatory requirement
      that the agency specify in its decision notice the nexus between the misconduct
      alleged and the efficiency of the service). In any event, the appellant has not
      shown that any of the above alleged errors likely caused the agency to reach a
      conclusion different from the one it would have reached in the absence or cure of
      the error. See 5 C.F.R. § 1201.56(c)(3).
¶10         The appellant’s contention, that the furlough was not uniform and
      consistent because DCMA did not furlough employees outside his competitive
      area, is also without merit. See ID at 8-9; see also Weathers v. Department of the
      Navy, 121 M.S.P.R. 417, ¶¶ 8-9 (2014) (employees in different competitive areas
      may be treated differently in a furlough because they are not similarly situated).
                                                                                     7

      Further, we agree with the administrative judge’s determination that the Board’s
      efficiency of the service determination does not encompass the issue of whether
      the furlough days for DCMA employees should have been continuous or
      discontinuous.    See ID at 10 n.5 (citing Chandler, 120 M.S.P.R. 163, ¶ 9).
      Finally, the appellant has shown no abuse of discretion by the administrative
      judge with respect to discovery matters. The appellant sought in his motion to
      compel information relating to cost savings the agency may have pursued, other
      actions the agency might have taken to avoid the furloughs, and new employees
      the agency may have hired. See IAF, Tab 14 at 2-7. The administrative judge
      correctly denied the motion as outside the scope of the Board’s review under
      Chandler, 120 M.S.P.R. 163, ¶¶ 9, 14, with the exception of one request relating
      to any employees within the appellant’s competitive area who were not
      furloughed, IAF, Tab 17.
¶11         Accordingly, we affirm the initial decision as modified by this Opinion and
      Order, still affirming the agency’s furlough action.

                                            ORDER
¶12         This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                        NOTICE TO THE APPELLANT REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the United
      States 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
                                                                                  8

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 court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. 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:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
