                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     JOHN M. WEAVER, 1                               DOCKET NUMBER
                  Appellant,                         PH-0752-13-1777-I-1

                  v.

     DEPARTMENT OF THE ARMY,                         DATE: May 20, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           John M. Weaver, Towson, Maryland, pro se.

           Michael E. Hokenson, 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 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,
     INSCOMHGRWB v. Department of the Army, MSPB Docket No. PH-0752-14-0590-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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).

                                      BACKGROUND
¶2        The agency furloughed the appellant from his Logistics Management
     Specialist position with the U.S. Army Intelligence and Security Command
     (INSCOM) for no more than 11 workdays 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., across-the-board reductions to federal budgetary resources
     caused by the Budget Control Act of 2011, as amended by the American Taxpayer
     Relief Act of 2012. Initial Appeal File (IAF), Tab 3 at 8-9, 14-16. The record
     includes a Standard Form 50 reflecting the appellant’s furlough, effective July 8,
     2013, on discontinuous days between July 8, 2013, and September 30, 2013, not
     to exceed a maximum of 88 hours during the furlough period. Id. at 6.            The
     appellant did not serve more than 6 workdays on furlough. INSCOMHGRWB v.
     Department of the Army, MSPB Docket No. PH-0752-14-0590-I-1, Consolidated
     Appeal File (CAF), Tab 7 at 8.
                                                                                          3

¶3        The appellant filed an appeal challenging the furlough action, which the
     Board consolidated with the related appeals of three other INSCOM employees.
     IAF, Tab 1; CAF, Tab 10, Initial Decision (ID) at 1, 29.           After holding the
     requested hearing, the administrative judge affirmed the furlough actions. ID at
     1, 19. He found that the furloughs were a reasonable management solution to the
     financial restrictions placed upon INSCOM, that the agency applied its
     determination as to which employees to furlough in a “fair and even manner,” and
     that the furloughs were effected for the efficiency of the service. ID at 18-19. In
     so finding, the administrative judge rejected the appellant’s argument that the
     agency unfairly implemented the furlough because it furloughed employees, like
     the appellant, who were funded by the Military Intelligence Program (MIP), but
     did not furlough alleged similarly situated employees who were funded by the
     National Intelligence Program (NIP), concluding that the agency had a legitimate
     basis for deciding not to furlough its NIP-funded employees. ID at 8-12; IAF,
     Tab 1 at 8-9.
¶4        Of the four employees in the consolidated appeal, only the appellant has
     filed a petition for review. Petition for Review (PFR) File, Tab 1. On review, the
     appellant continues to claim that the agency’s decision to furlough its
     MIP-funded employees–but not its NIP-funded employees–constituted disparate
     treatment. 3 Id. The agency has filed a response in opposition to the petition for
     review. PFR File, Tab 4.




     3
       The appellant does not dispute that the furlough was, in general, a reasonable
     management solution to the financial restrictions placed on the agency. Nor does he
     claim that he should not have been subjected to the furlough because he occupied an
     NIP-funded position or otherwise met the agency’s criteria for an exception. Cf. Dye v.
     Department of the Army, 121 M.S.P.R. 142, ¶ 10 (2014). Rather, he claims that, if
     MIP-funded personnel “were not allowed to be exempt” from the furlough, then
     NIP-funded personnel should have been subjected to the furlough as well. PFR File,
     Tab 1 at 1.
                                                                                       4

                      DISCUSSION OF ARGUMENTS ON REVIEW
¶5         In a May 14, 2013 memorandum to the Secretaries of the Military
     Departmends and other DOD managers, the Secretary of Defense directed defense
     managers to prepare to furlough most DOD civilians for up to 11 days.
     Complete Department of the Army Administrative Record for FY 2013 Furlough
     Appeals         (Army        Administrative      Record),        available        at
     http://www.mspb.gov/furloughappeals/army2013.htm       (last   visited   April   27,
     2015), Tab 7 at 50-52. He explained that there would only be limited exceptions
     to the furlough including, for instance, employees whose furloughs “would not
     free up money for critical DOD mission needs.”              Id. at 51-52.    In an
     accompanying attachment, DOD set forth nine categorical exceptions to the plan
     to furlough civilian employees. Id. at 53-54. The fourth exception applied to
     employees who were funded with NIP funds, stating that the determination to
     furlough those employees would be made by the Director of National
     Intelligence.   Id. at 53.   It additionally stated that any employees who were
     funded with MIP funds, however, would be subject to furlough. Id. In a May 23,
     2013 memorandum in reference to the Secretary of Defense’s May 14, 2013
     memorandum, the Assistant Secretary of the Army for Manpower and Reserve
     Affairs indicated that NIP-funded Army employees were exempt from the
     furlough at the direction of the Director of National Intelligence.          Army
     Administrative Record, Tab 10 at 87-88.
¶6         The Board has found that an agency meets its burden of proving that a
     furlough promotes the efficiency o f the service by showing, in general, that the
     furlough was a reasonable management solution to the financial restrictions
     placed on it and that the agency applied its determination as to which employees
     to furlough in a “fair and even manner.”          Lopez v. Department of the
     Navy, 121 M.S.P.R. 647, ¶ 15 (2014). A “fair and even manner” means that the
     agency applied the adverse action furlough uniformly and consistently. Id. This
     does not mean that the agency is required to apply the furlough in such a way as
                                                                                        5

     to satisfy the Board’s sense of equity. Id. Rather, it means that the agency is
     required to treat similar employees similarly and to justify any deviations with
     legitimate management reasons. Id.
¶7         For purposes of this decision, we assume that the appellant has established
     that he is similarly situated to employees who were not furloughed because they
     were NIP-funded.       We agree with the administrative judge that the agency
     established a legitimate management reason for different treatment of otherwise
     similarly situated NIP-funded employees. ID at 11-12. Significantly, NIP-funded
     employees, unlike MIP-funded employees, were not paid with DOD funds. CAF,
     Tab 3 at 59-60 (declaration of INSCOM Chief of Staff). Therefore, any decision
     to furlough NIP-funded employees would not reduce the expenditure of DOD
     budgetary resources.     See id.; Army Administrative Record, Tab 7 at 50-55,
     Tab 10 at 87. The appellant has not challenged, and we find no reason to disturb,
     the administrative judge’s finding that the agency did not target the appellant or
     any group of appellants for personal or other wrongful reasons. See ID at 11; see
     also Lopez, 121 M.S.P.R. 647, ¶¶ 15, 18.           Accordingly, while NIP-funded
     employees and MIP-funded employees may have been performing “the same
     exact job,” as alleged by the appellant, PFR File, Tab 1 at 1, it was the source of
     funding for their positions, rather than the duties of the positions themselves, that
     differentiated them for furlough purposes, CAF, Tab 3 at 59-60; see Weathers v.
     Department of the Navy, 121 M.S.P.R. 417, ¶ 7 (2014) (finding that the agency
     established a legitimate management reason for treating certain shipyard
     employees differently from others for furlough purposes).            The appellant,
     therefore, has provided no basis to disturb 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 United
     States Court of Appeals for the Federal Circuit. You must submit your request to
     the court at the following address:
                                                                                  6

                           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
information regarding pro bono representation for Merit Systems Protection
Board appellants before the Federal Circuit. The Merit Systems Protection Board
                                                                           7

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.
