                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     LORRAINE S. KIMBALL, 1                          DOCKET NUMBER
                   Appellant,                        SF-0752-13-2733-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: January 6, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Lorraine S. Kimball, San Diego, California, pro se.

           Jason Bowers Smith, Fort Lee, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                              Anne M. Wagner, Vice 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 furlough action. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;

     1
       Pursuant to 5 C.F.R. § 1201.36(a), this case was part of a consolidation,
     DD63-DCMA2 v. Department of Defense, MSPB Docket No. SF-0752-14-0442-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.              5 C.F.R.
     § 1201.113(b).
¶2         The agency furloughed the appellant from her Contract Price/Cost Analyst
     position with the Defense Contract Management Agency (DCMA) for 6 days
     based on “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., an
     across-the-board reduction to budgetary resources for the federal government.
     Initial Appeal File (IAF), Tab 3 at 5, 7-14, 17-19. On appeal to the Board, and
     based on the written record because the appellant did not request a hearing, the
     administrative judge affirmed the furlough.      DD63-DCMA2 v. Department of
     Defense, MSPB Docket No. SF-0752-14-0442-I-1, Consolidated Appeal File,
     Tab 9, Initial Decision (ID) at 2, 19.    The administrative judge found, among
     other things, that the agency established that it had cause to furlough the
     appellant and that the furlough promoted the efficiency of the service. ID at 6-12.
¶3         The appellant asserts on review that the agency committed harmful error
     because the Secretary of Defense issued a May 14, 2013 memorandum directing
     managers to furlough civilian employees, even though the Secretary of Defense
                                                                                       3

     had been confirmed by the U.S. Senate less than 3 months before and therefore
     “had so little experience.” Petition for Review File, Tab 1 at 4. The appellant
     also contends that the agency did not furlough employees living in areas affected
     by tornadoes, and that DCMA was “under budget.” Id.
¶4        The appellant did not allege before the administrative judge harmful error
     based on the length of time the Secretary of Defense spent in office before issuing
     his May 14, 2013 memorandum. See IAF, Tab 1 at 5. Moreover, she has not
     shown that this argument is based on new and material evidence not previously
     available despite her due diligence. Therefore, the Board will not consider such
     an argument for the first time on review. See Banks v. Department of the Air
     Force, 4 M.S.P.R. 268, 271 (1980). In any event, harmful error is error by the
     agency in the application of its procedures that is 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. 5 C.F.R. § 1201.56(c)(3). The appellant has not identified
     any law, rule, or regulation that prohibited the Secretary of Defense from issuing
     the May 14, 2013 memorandum after less than 3 months in office.
¶5        In addition, the administrative judge addressed the appellant’s assertions
     regarding employees living in areas affected by tornadoes and the DCMA budget.
     The administrative judge found that the employees affected by tornadoes were not
     similarly situated to the appellant and that the appellant was subject to the
     furlough because her pay and benefits were funded through Department of
     Defense (DOD) appropriations, which were subject to significant spending cuts,
     even assuming that DCMA was “under budget.”            ID at 6-7, 9-10, 15.     The
     appellant has shown no error in these findings. See Yee v. Department of the
     Navy, 121 M.S.P.R. 686, ¶ 14 (2014) (agreeing with the administrative judge that,
     although the appellants asserted that the Department of the Navy had adequate
     funding to avoid the furloughs, it was reasonable for DOD to consider its budget
     situation holistically, rather than isolating each military department’s situation);
     Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶ 9 (2014) (employees
                                                                                       4

     from different organizational units and competitive areas could be treated
     differently because they were not similarly situated for furlough purposes).
¶6        Accordingly, we DENY the appellant’s petition for review.

                       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

          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
                                                                            5

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.
