                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     GLENN A. SOUTHERN,                              DOCKET NUMBER
                  Appellant,                         DC-0752-13-5270-B-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: November 1, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Glenn A. Southern, Reston, Virginia, pro se.

           Jeffrey A. Epstein, Esquire, and John D. Norquist, Esquire,
              Washington Navy Yard, D.C., 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 remand 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; the initial decision is based on an erroneous interpretation of statute or


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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 remand initial
     decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113(b).

                                      BACKGROUND
¶2        The appellant is a GS-0340-15 Program Manager for the agency’s Naval
     Sea Systems Command, Nuclear Propulsion Directorate, Regulatory Affairs
     Division, stationed in the Washington Navy Yard, Washington, D.C.            Initial
     Appeal File (IAF), Tab 4 at 8.       On May 28, 2013, the agency proposed to
     furlough the appellant for up to 88 hours between July 8 and September 23, 2013.
     IAF, Tab 1 at 10-12.     After considering the appellant’s written response, on
     June 24, 2013, the agency issued a decision upholding the proposed furlough.
     IAF, Tab 1 at 14-16, Tab 4 at 9-11.        The agency ultimately furloughed the
     appellant for a total of 48 hours. IAF, Tab 4 at 4-6.
¶3        The appellant filed a Board appeal, which the administrative judge
     consolidated with the furlough appeals filed by 12 other appellants. IAF, Tab 1;
     NAVSEA - Trautman I v. Department of the Navy, MSPB Docket No.
     DC-0752-15-0260-I-1, Consolidated File (CF), Tab 1 at 2, 11. The administrative
     judge issued an initial decision, upholding the furloughs based on the written
     record. CF, Tab 10, Initial Decision. The appellant filed a petition for review,
     and the Board issued a remand order, finding that the appellant had not been
                                                                                     3

     afforded his requested hearing because of an error in the consolidation. Glenn A.
     Southern v. Department of the Navy, MSPB Docket No. DC-0752-13-5270-I-1,
     Remand Order (Nov. 24, 2015); Remand File (RF), Tab 1.
¶4        On remand, the administrative judge provided the parties an additional
     opportunity to develop the written record and conducted the hearing as requested.
     RF, Tabs 4, 25. She then issued a remand initial decision, finding that the agency
     proved that the furlough was for such cause as to promote the efficiency of the
     service and that the appellant did not prove his affirmative defenses of due
     process violation or harmful procedural error.       RF, Tab 26, Remand Initial
     Decision (RID).
¶5        The appellant has filed a petition for review, Remand Petition for Review
     (RPFR) File, Tab 1, the agency has filed a response, RPFR File, Tab 3, and the
     appellant has filed a reply, RPFR File, Tab 4.

                                        ANALYSIS
     The agency established that the furlough was for cause.
¶6        In any adverse action appeal, the agency bears the burden of proving by
     preponderant evidence that the action was taken for such cause as will promote
     the efficiency of the service. Hilderbrand v. Department of Justice, 22 M.S.P.R.
     233, 236 (1984).      In furlough appeals, the concept of “cause” encompasses
     whether the appellant met the criteria established by the agency for being subject
     to, and not excepted from, the furlough.         Dye v. Department of the Army,
     121 M.S.P.R. 142, ¶ 9 (2014).
¶7        On review, the appellant argues that the agency failed to meet its burden of
     proof on the issue of cause because a May 14, 2013 directive from the Secretary
     of Defense exempted all Naval Reactors staff from the furlough.       RPFR File,
     Tab 1 at 6; Department of the Navy Administrative Record for Fiscal Year 2013
     Furlough    Appeals     (Administrative    Record)     at   113,   available    at
     http://www.mspb.gov/ furloughappeals/navy2013.htm. The appellant argues that,
                                                                                             4

     at the time of the furlough, there were 29,003 Shipyard Workers and, including
     him, 173 Naval Reactor employees, for a total of 29,176 employees. 2 IAF, Tab 1
     at 6. The May 14, 2013 directive excepts 28,000 General Shipyard Workers, and
     1,657 Nuclear Shipyard Workers and Naval Reactors Staff from the furlough, for
     a total of 29,657 exceptions. IAF, Tab 1 at 6; Administrative Record at 113. The
     appellant argues that, because the total of Shipyard Workers and Naval Reactors
     Staff falls below the total number of allowed exceptions for such employees, all
     Naval Reactor employees, including the appellant, should have been excepted.
     IAF, Tab 1 at 6.
¶8         We find that the directive does not group these employees together and
     therefore, the calculation of total exceptions as pertains to the appellant cannot
     gain the benefit of any overage that might exist in the exceptions for General
     Shipyard Workers. Administrative Record at 113. The record shows that the
     1,657 exceptions Covering Naval Reactors staff included 106 Naval Reactors
     Staff and 1,551 employees from various shipyards. CF, Tab 6 at 8, 11, 54; RF,
     Tab 12 at 120. We find that the 106 exceptions were insufficient to cover all 173
     Naval Reactors employees, and that the May 14, 2013 directive does not
     contradict the agency’s position that not all Naval Reactor employees were
     excepted. CF, Tab 6 at 8-12.
¶9         For the reasons explained in the remand initial decision, we agree with the
     administrative judge that the agency showed by preponderant evidence that the
     appellant did not meet the criteria for being excepted from the furlough and that
     the furlough was taken for cause. RID at 3-4.

     2
       It appears to be undisputed that there were 173 civilian Naval Reactor employees at
     the Washington Navy Yard, including the appellant. CF, Tab 6 at 8, 14. However,
     there is no actual evidence in the record regarding the total number of civilian Shipyard
     Workers. At the hearing, the appellant represented to the deciding official, based on a
     letter that he received during discovery, that there were 29,003 Shipyard Workers. RF,
     Tab 25 (testimony of the deciding official). However, the letter was never entered into
     the record, and the appellant himself did not testify as to its contents. Nevertheless, we
     assume, for purposes of this analysis, that the 29,003 figure is accurate.
                                                                                         5

      The agency established that the furlough promoted the efficiency of the service.
¶10        To show that a furlough promoted the efficiency of the service, the agency
      must establish that the furlough, in general, was a reasonable management
      solution to the financial restrictions placed on it and the agency applied its
      determination as to which employees to furlough in a fair and even manner. Dye,
      121 M.S.P.R. 142, ¶ 9. An agency establishes that it conducted the furlough in a
      fair and even manner by showing that it treated similar employees similarly and
      justifying any deviations with legitimate management reasons.         Chandler v.
      Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).          The Board will
      decide this issue on a case-by-case basis, but will be guided by reduction-in-force
      principles in doing so. Id.
¶11        On review, the appellant argues that the limit of 106 exceptions was driven
      by political considerations and was not based on budgetary or technical reasons.
      RPFR File, Tab 1 at 6. The deciding official testified that he personally believed
      that all Naval Reactor employees, or at least 126 of them, including the appellant,
      should have been excepted from the furlough.       RF, Tab 25 (testimony of the
      deciding official); CF, Tab 6 at 27-33. However, Naval Reactors was ultimately
      only allowed 106 exceptions, so the deciding official had to use his judgment to
      determine which 106 employees were most vital in case of an emergency, and the
      appellant did not qualify. RF, Tab 25 (testimony of the deciding official). As the
      Board recognized in Chandler, there is no one correct way to structure a furlough,
      and the furloughing agency must be afforded broad discretion in the matter.
      120 M.S.P.R. 163, ¶ 36.       A decision on which and how many employees to
      furlough can seldom, if ever, be reduced to a mathematical formula, and we find
      that the negotiations and judgment calls that went into the 106 exceptions figure
      do not detract from the reasonableness of the agency’s decision.
¶12        The appellant also argues that, contrary to the agency’s argument in the
      consolidated file, he was an emergency responder. RPFR File, Tab 1 at 5; CF,
      Tab 6 at 3-4. Based on the testimony of the deciding official, we agree with the
                                                                                       6

      appellant that he would have had some sort of response role in the event of a
      nuclear emergency within the Naval Sea Systems Command.               RF, Tab 25
      (testimony of the deciding official). However, we find this fact to be immaterial
      because the agency consciously decided not to except all emergency responders
      within Naval Reactors. Id. The appellant further argues that the agency posited
      various criteria for furlough exception, including “emergency response,” “nuclear
      response,” “defend life and property,” and ambiguously, “Nuclear Reactor.”
      RPFR File, Tab 1 at 8.       Nonetheless, we find that these various ways of
      characterizing the criteria for exceptions all refer to employees who would play a
      role in responding to a nuclear-related emergency. As explained above, some
      such employees, including the appellant, were nevertheless furloughed. This was
      a conscious decision made by the agency and not the result of an accident or the
      misapprehension about the appellant’s job duties. RF, Tab 25 (testimony of the
      deciding official).
¶13         For the reasons explained by the administrative judge, we find that the
      furlough was a reasonable management solution to financial restrictions and that
      the agency applied it in a fair and even manner. RID at 4-6. We therefore agree
      that the agency established that the furlough promoted the efficiency of the
      service. That the agency arguably did not structure the furlough in a manner that
      best promotes the efficiency of the service does not detract from this finding. See
      Chandler, 120 M.S.P.R. 163, ¶ 36.

      The appellant did not prove his due process claim.
¶14         Minimum due process of law entails prior notice and an opportunity to
      respond. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985).
      Procedural due process guarantees are not met if the employee has notice of only
      certain charges or portions of the evidence and the deciding official considers
      new and material information; therefore, it is constitutionally impermissible to
      allow a deciding official to receive additional material information that may
                                                                                        7

      undermine the objectivity required to protect the fairness of the process. Stone v.
      Federal Deposit Insurance Corporation, 179 F.3d 1368, 1376 (Fed. Cir. 1999).
¶15         In this case, the appellant argues that the agency failed to inform him at the
      predecisional stage of (1) the legal definition of Naval Reactors Staff, and (2) the
      fact that there were 500 more exemptions in the May 14, 2013 directive than there
      were positions in Naval Reactors and the shipyards. RPFR File, Tab 1 at 7-8.
¶16         Regarding the first issue, we have reviewed the email string in which the
      deciding official sought and obtained a definition of “Naval Reactors Staff,” but
      we find that it did not introduce any new information.        RF, Tab 12 at 120.
      Rather, it clarified the information in the May 13, 2014 directive, breaking down
      the exceptions for “Shipyard Workers, Nuclear and Naval Reactors Staff” and
      showing that the directive did not countermand the previously established ceiling
      of 106 furlough exceptions for Naval Reactors Headquarters employees.           CF,
      Tab 6 at 26-33; RF, Tab 12 at 120; Administrative Record at 113. A deciding
      official does not violate an employee’s due process rights by initiating an ex parte
      communication that only confirms or clarifies information already contained in
      the record. Blank v. Department of the Army, 247 F.3d 1225, 1229 (Fed. Cir.
      2001).
¶17         Regarding the second issue, for the reasons explained above, we find that it
      is immaterial whether the combined exemptions for General Shipyard Workers
      and Nuclear Shipyard Workers and Naval Reactors staff exceeded the total
      number of employees holding those positions.         Supra ¶¶ 7-8.     There is no
      indication that this information figured into the agency’s decision, and we find
      that the agency’s failure to supply it to the appellant does not implicate his due
      process rights.
¶18         Regarding the more fundamental issue of whether the agency violated the
      appellant’s due process rights by limiting the number of Naval Reactors Staff
      excepted from the furlough to 106 without his knowledge, we have considered the
      factors set forth in Stone, 179 F.3d at 1377, and we find that no due process
                                                                                       8

      violation occurred. Specifically, as the Department of the Navy furlough was
      structured, all civilian employees were furloughed by default, and the exceptions
      were just that: exceptions.      Administrative File at 108-17.        The limit of
      106 employees did not introduce any new information about the appellant because
      the default position that he would be furloughed did not change. We find that the
      agency’s failure to provide it to him did not violate his due process rights.

      The appellant did not prove his harmful procedural error affirmative defense.
¶19         To prove that the agency committed harmful procedural error under
      5 U.S.C. § 7701(c)(2)(A), the appellant must show both that the agency
      committed procedural error and that the error was harmful. Parker v. Defense
      Logistics Agency, 1 M.S.P.R. 505, 513 (1980).            Harmful error cannot be
      presumed; 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).
¶20         In this case, the appellant argues that the agency violated 5 C.F.R.
      § 752.404(g)(1), which provides that an agency’s decision in an adverse action
      must be based solely on information provided in a proposal notice and any
      response thereto. Southern, MSPB Docket No. DC-0752-13-5270-I-1, Remand
      Order, ¶ 11; RF, Tab 1. However, even assuming that the agency violated this
      regulation by failing to inform the appellant of the 106-emplyee limit, we agree
      with the administrative judge that the error was not harmful. RID at 9. The
      appellant has not shown how his knowledge of this information would have
      caused the agency to except him from the furlough.

      The appellant has not shown that the administrative judge made any material
      errors in reaching her decision.
¶21         On review, the appellant argues that the agency failed to supplement the
      record appropriately after remand. RPFR File, Tab 1 at 5. However, any failures
      in this regard were at the agency’s own peril since it was the party that bore the
                                                                                      9

      burden of proof in this appeal. See 5 C.F.R. § 1201.56(a)(1)(ii). As set forth
      above, the administrative judge found that the agency met its burden of proof, and
      the appellant has not shown any error in the administrative judge’s findings.
¶22        The appellant also argues that the administrative judge failed to attach
      appropriate weight to an agency document showing individuals whom it intended
      to except from the furlough and individuals who would be subject to the furlough.
      RPFR File, Tab 1 at 8; RF, Tab 24 at 5-8. However, regardless of the weight that
      the administrative judge might have attached to this document, it is difficult for
      us to see how it might have helped the appellant’s case. Even on this document,
      the appellant’s name appears among those employees subject to the furlough and
      does not appear among the employees whom the agency intended to except. RF,
      Tab 24 at 5-8.
¶23        Finally, the appellant argues that the administrative judge inappropriately
      assigned the burden of proof in this appeal to him rather than to the agency.
      RPFR File, Tab 1 at 4, 8. We have reviewed the initial decision, and we disagree.
      RID. We find that the administrative judge properly assigned the burden to the
      agency to prove its case in chief and the burden to the appellant to prove his
      affirmative defenses as required by the Board’s regulations.         See 5 C.F.R.
      § 1201.56(a).

                       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
                                                                                 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 U.S. 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 U.S. 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 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.
