                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     HANK A. WILSON,                                 DOCKET NUMBER
                  Appellant,                         DA-0752-13-2096-I-1

                  v.

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



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Hank A. Wilson, Texarkana, Texas, pro se.

           Craig Paulson, Esquire, Texarkana, Texas, 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 agency’s decision to place him in furlough status for no more than
     11 discontinuous days between July 8 and September 30, 2013.           Generally, we
     grant petitions such as this one only when: the initial decision contains erroneous
     findings of material fact; the initial decision is based on an erroneous

     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. 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 appellant, a Quality Assurance Specialist, GS-1910-11, at the agency’s
     Red River Army Depot in Texarkana, Texas, appealed the agency’s action placing
     him in furlough status for no more than 11 discontinuous days between July 8 and
     September 30, 2013. 2 Initial Appeal File (IAF), Tab 1, Tab 8 at 7. The appellant
     waived his request for a hearing, and the case was decided based on the written
     record. IAF, Tab 7. The administrative judge found that the appellant was duly
     issued a notice of proposed furlough and a decision letter. IAF, Tab 9, Initial
     Decision (ID) at 2-3. He found that the agency demonstrated that it had cause to
     furlough the appellant. ID at 3-5. The appellant argued that he was exempt from
     the furlough because his salary was paid out of a Working Capital Fund (WCF).
     IAF, Tab 8 at 4-6. The administrative judge found that circumstances in this case
     resembled other WCF cases in which the Board had affirmed furlough actions.


     2
       This appeal was initially placed in a consolidation of appeals filed by employees at
     Tinker Air Force Base. IAF, Tab 2; see Tinker v. Department of the Air Force,
     MSPB Docket No. DA-0752-14-0407-1-1, Initial Decision (Dec. 19, 2014). The
     Department of the Air Force filed a motion to dismiss the appeal because the appellant
     was not an employee. IAF, Tab 3. The administrative judge determined that the
     appellant was instead a United States Army employee and thus severed his appeal from
     the consolidation. IAF, Tab 4.
                                                                                      3

     The administrative judge further found that the furlough action here promoted the
     efficiency of the service in that it was a reasonable management solution to the
     agency’s financial circumstances and the agency had implemented it in a fair and
     even manner. ID at 5-7.
¶3        The appellant filed a timely petition for review in which he asserts that the
     agency lacked the authority to furlough employees paid from WCFs. Petition for
     Review (PFR) File, Tab 1.      He argues that the furlough action is invalid
     because 10 U.S.C. § 2472 prohibits depot-level maintenance and repair workloads
     from being managed on the basis of any constraint or limitation in terms of man
     years, end strength, full-time equivalent positions, or maximum number of
     employees. Id. at 4. Instead, he asserts, section 2472 requires employees to be
     managed solely on the basis of the available workload requests and the funds
     made available for depot-level maintenance and repair.        Id.   The appellant
     additionally argues that 10 U.S.C. § 129(b) constrains agencies from furloughing
     employees whose salaries and benefits are funded from sources other than
     appropriated funds. Id. These are the same arguments he asserted before the
     administrative judge. IAF, Tab 8 at 4‑6.
¶4        As the administrative judge explained, the appellant’s salary is paid directly
     from WCF monies, but the WCF receives its funding from the appropriations
     made to the various entities it serves. ID at 4-5. In similar circumstances, the
     Board has upheld a furlough action.           Einboden v. Department of the
     Navy, 122 M.S.P.R. 302, ¶¶ 13-18, aff’d, 802 F.3d 1321 (Fed. Cir. 2015). As for
     whether the furlough of employees paid through a WCF is precluded by law, we
     found nothing in the statutes the appellant cited that would prohibit the agency
     from furloughing WCF employees. The appellant has not alleged or shown that
     the furlough conflicted with any of the constraints on the agency’s management
     of the funding for indirectly funded employees that are set forth in 10 U.S.C.
                                                                                              4

     § 129(b), 3 and in any event, the Board previously has rejected the argument that
     the furloughs constituted an improper constraint or limitation on the management
     of civilian personnel in violation of 10 U.S.C. § 129(a)-(b). NV24 ‑ Keyport2 v.
     Department of the Navy, 123 M.S.P.R. 263, ¶¶ 5-9 (2016).
¶5           The issue before the Board in a furlough appeal is not the source of funding
     for employees’ salaries, but rather, whether the furlough was a reasonable
     management solution to the financial restrictions placed on the agency.
     Einboden, 122 M.S.P.R. 302, ¶ 13. The Board held in Einboden that an agency
     could consider its budget holistically rather than isolate the funding situation for
     each of its subordinate organizations. Id., ¶ 15. The Board further held that the
     agency was not required to show that it reassigned any funds saved by
     implementing furloughs to meet its burden to prove that the furlough action was a
     reasonable management solution to the agency’s financial restrictions.                 Id.,
     ¶¶ 16-18. The U.S. Court of Appeals for the Federal Circuit affirmed the Board’s
     decision in Einboden.           Einboden v. Department of the Navy, 802 F.3d 1321,
     1325-26 (Fed. Cir. 2015).
¶6           The appellant additionally argues that members of the House of
     Representatives sought to intervene in the furlough of WCF employees on
     July 23, 2013, when it amended H.R. 2397, the Department of Defense


     3
         Subsection 129(b) states:
              The number of, and the amount of funds available to be paid to, indirectly
              funded Government employees of the Department of Defense
              may not be ‑
              (1) subject to any constraint or limitation on the number of such personnel
              who may be employed on the last day of a fiscal year;
              (2) managed on the basis of any constraint or limitation in terms of man
              years, end strength, full-time equivalent positions, or maximum number of
              employees; or
              (3) controlled under any policy of the Secretary of a military department
              for control of civilian manpower resources.
                                                                                  5

Appropriations Act, 2014, to prohibit the use of WCF monies to implement
furloughs of Department of Defense employees.          PFR File, Tab 1 at 4; see
H.R. 2397, 113th Cong., Amend. 381 (2013).        However, H.R. 2397 was never
enacted.     The bill that ultimately became law did not include the pertinent
provision in the amendment. See Consolidated Appropriations Act, 2014, Pub. L.
No. 113-76, 128 Stat. 5 (2014). Accordingly, we affirm the initial decision.

                 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
                                                                                 6

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 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.
