                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     ALAN COOPER, 1                                  DOCKET NUMBER
                         Appellant,                  AT-0752-13-0900-I-1

                  v.

     DEPARTMENT OF THE AIR FORCE,                    DATE: June 4, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL 2

           Joshua L. Klinger, Esquire, Denver, Colorado, for the appellant.

           Anthony Coggin, Esquire, Joshua Curtis Williams, and Sean T. Garner,
             Eglin Air Force Base, Florida, 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 decision. Generally, we grant petitions such as

     1
      Pursuant to 5 C.F.R. § 1201.36(a), th is appeal was part of a consolidation. Eglin Air
     Force Base, Group 1 v. Department of the Air Force, MSPB Docket No. AT-0752-14-
     0302-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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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
     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 o f 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        On or about May 28, 2013, the agency proposed to furlough the appellant, a
     Fuel Distribution System Mechanic, for no more than 11 workdays due to
     “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 1 March 13.” Initial Appeal File (IAF),
     Tab 1 at 12-13. The notice identified a website where the material supporting the
     proposed furlough could be viewed and stated that in the alternative the appellant
     could contact his local civilian personnel section to review the material. Id. at 13.
     The notice also stated “[t]o arrange for an oral reply or review the supporting
     materials, please contact the individuals listed below” and included a phone
     number and email address of a contact person. Id. The notice stated that the
     appellant would be allowed up to 4 hours of official time to review the supporting
     material, seek assistance, prepare a reply, secure affidavits and statements,
                                                                                      3

     consider appropriate courses of action, and make a response. Id. The appellant
     provided a written and oral response to the proposed furlough. IAF, Tab 6 at 5-6,
     Tab 9.      By written notice dated June 26, 2013, the agency’s deciding official
     informed the appellant that he would be furloughed as outlined in the notice of
     proposed furlough. 3       IAF, Tab 1 at 16-17.        The record includes evidence
     reflecting the appellant’s furlough on 6 discontinuous days between July 8, 2013,
     and September 30, 2013. IAF, Tab 6 at 9-18.
¶3           The appellant filed a Board appeal challenging the agency’s action, IAF,
     Tab 1, and the administrative judge consolidated his appeal with the appeals of
     similarly situated employees, Elgin Air Force Base, Group 1 v. Department of the
     Air Force, MSPB Docket No. AT-0752-14-0302-I-1, Consolidated Appeal File
     (CAF), Tab 1. After holding a hearing, the administrative judge issued an initial
     decision affirming the agency’s furlough actions. CAF, Tab 11, Initial Decision
     (ID). The administrative judge found, among other things, that the furlough was
     implemented in accordance with due process requirements and that the appellant
     had not proven that the agency committed harmful procedural error. ID at 8-11.
¶4           The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1.     The agency has filed a response in opposition to the appellant’s
     petition.    PFR File, Tab 3.      The appellant has filed a reply to the agency’s
     response. PFR File, Tab 4.

                        DISCUSSION OF ARGUMENTS ON REVIEW
¶5           The appellant raises a single issue on review: whether the agency denied
     him due process by not providing him with access to the material supporting the
     proposed furlough.       PFR File, Tab 1 at 6-10. 4 The appellant made this same



     3
         The decision was signed on July 2, 2013. IAF, Tab 1 at 17.
     4
        The appellant does not challenge, and we discern no reason to disturb, the
     administrative judge’s findings that the agency’s decision to furlough him was a
     reasonable management solution to the shortage of funds caused by sequestration,
                                                                                          4

     argument before the administrative judge, who found that the furlough was
     implemented in accordance with due process.          ID at 8-9.    Specifically, the
     administrative judge found that the notice of proposed furlough informed the
     appellant of the reasons for the proposed action, how to access the material relied
     upon by the agency for the proposed action, and an opportunity to present an oral
     and/or written reply to the proposed action. ID at 9. The administrative judge
     further analyzed this claim to determine if the appellant proved that the agency
     committed harmful procedural error.      ID at 10-11.     The administrative judge
     found that the appellant failed to prove harmful error because he was able to
     access the supporting material and make a reply, and he failed to show that the
     agency’s decision to furlough him would have been different, if different
     procedures had been utilized. ID at 11. In his petition for review, the appellant
     argues that the administrative judge erred in his analysis of the due process claim.
     PFR File, Tab 1 at 9-10. The appellant also argues that the administrative judge
     erred by applying the harmful error analysis to his claim that the agency failed to
     provide him the material it relied on in making its furlough decision. Id. at 6.

     The appellant was provided with the required due process.
¶6        Prior notice and an opportunity to respond are the fundamental due process
     requirements before a tenured public employee is furloughed.               Ronso v.
     Department of the Navy, 122 M.S.P.R. 391, ¶ 13 (2015) (discussing due process
     in the context of a furlough appeal). The appellant essentially argues that the
     administrative judge erred by not analyzing his due process claim independently
     from the issue of harmful procedural error.         PFR File, Tab 1 at 6.          The
     administrative judge considered the appellant’s due process claim and found that
     the agency satisfied the requirements of due process by providing him              with
     advance written notice of the notice of proposed furlough, access to the material


     promoted the efficiency of the service, and was applied in a fair and even manner. ID
     at 17-18.
                                                                                      5

     supporting the proposed furlough, and an opportunity to provide both written and
     oral responses. ID at 8-9.
¶7        The appellant alleges that the agency’s website was difficult to navigate
     because there was no link on the website identified as “supporting material,”
     which was the term the agency had used in the notice of proposed furlough. PFR
     File, Tab 1 at 5.    Even if the website was difficult to navigate, the agency
     provided an alternate method for accessing the material. The notice of proposed
     furlough stated that the material relied on to support the furlough action also
     could be accessed by contacting the local civilian personnel section. IAF, Tab 1
     at 13. The Chief of Employee Relations provided an affidavit stating that some
     employees contacted the personnel section with questions about the furlough, but
     that she was not aware of any employee contacting the civilian personnel section
     in order to review the Administrative Record. CAF, Tab 8 at 6. The appellant
     does not dispute that he did not contact the civilian personnel section for
     assistance navigating the website to access the supporting material or for access
     to a hard copy of the material. See ID at 10; PFR File, Tabs 1, 4.
¶8        The appellant alleges that he attempted to contact the agency official
     designated to hear oral replies by telephone to notify her that he was having
     difficulty accessing the supporting material, but the phone number provided in the
     notice of proposed furlough was incorrect. IAF, Tab 6 at 7. The appellant also
     attempted to contact via email the identified agency official who would hear his
     oral reply but was unable to initially reach her because her mailbox was full.
     IAF, Tab 11 at 4-12. Once the appellant was able to reach her via email, on
     June 12, 2013, she told him that the material supporting the agency’s proposed
     furlough   was    referred   to   as   the   “Administrative   Record”    on    the
     http://myPers.af.mil website. Id. at 4. The appellant stated that on June 13, 2013,
     he was able to access the supporting material via http://myPers.af.mil. IAF, Tab
     6 at 8. The appellant gave his oral reply to the proposed furlough on June 14,
     2013. IAF, Tab 9 at 4. The appellant noted in a memorandum that an agency
                                                                                         6

      employee at another location requested a copy of the material relied on in
      proposing the furlough, and received it the day after making his request. IAF,
      Tab 6 at 7. The agency may have been able to make the material easier to access,
      but its failure to do so does not rise to the level of a due process violation. The
      material relied on in proposing the furlough was available on the website and in
      the civilian personnel section.     Assistance navigating the website also was
      available through the civilian personnel section. Based on the foregoing we find
      no basis for disturbing the administrative judge’s finding that the agency provided
      the appellant with due process.

      The agency did not commit harmful procedural error in processing the appellant’s
      furlough.
¶9         A notice of proposed furlough must inform the employee of his or her right
      to review the material that is relied on to support the furlough.             Salo v.
      Department of Defense, 122 M.S.P.R. 417, ¶ 9 (2015); 5 C.F.R. § 752.404(b).
      Although we have found no constitutional violation, we must still consider
      whether the agency committed harmful procedural error by failing to follow the
      regulatory procedures set forth at 5 C.F.R. § 752.404(b). See Stone v. Federal
      Deposit Insurance Corporation, 179 F.3d 1368, 1378 (Fed. Cir. 1999) (stating
      that in addition to the protections afforded by the Constitution, public employees
      also are entitled to whatever other procedural protections are afforded them by
      statute, regulation, or agency procedure); Pumphrey v. Department of Defense,
      122 M.S.P.R. 186, ¶ 9 (2015). The appellant was told that he could access the
      material     supporting   the   agency’s    furlough   decision    on   the   website
      “http://myPers.af.mil.” IAF, Tab 1 at 13.
¶10        We agree with the administrative judge’s finding that the appellant failed to
      prove the agency committed harmful procedural error.              Harmful error is a
      procedural error by the agency 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.    See 5 C.F.R. § 1201.56(c)(3); see also Salter v. Department of the
                                                                                        7

      Treasury, 92 M.S.P.R. 355, ¶ 7 (2002). To show harmful error, an appellant must
      prove that any procedural error substantially prejudiced his rights by possibly
      affecting the agency’s decision. Salter, 92 M.S.P.R. 355, ¶ 7.
¶11        Making the supporting material available on a website can satisfy the
      agency’s obligation under 5 C.F.R. § 752.404(b). See Salo, 122 M.S.P.R. 417,
      ¶ 9 (finding the agency satisfied its obligation under 5 C.F.R. § 752.404(b) to
      make the material relied on to support the reasons for a furlough available for
      review when the proposal notice advised the employee how to view the material
      at an agency website); see also Pumphrey, 122 M.S.P.R. 186, ¶ 7 n.2 (when the
      notice of proposed furlough informed the employee how to view the supporting
      material on an agency website or at a designated Furlough Reading Room, the
      appellant’s vague statement that he was not given predecisional access to the
      material relied upon in the notice of proposed furlough did not support a finding
      of harmful procedural error).
¶12        The appellant has not shown how different procedures in implementing the
      furlough would have caused the agency to reach a different conclusion.          The
      appellant has made general arguments about the agency’s obligation to make the
      material available for review but has not shown how he actually was harmed by
      the procedures used in implementing the furlough. See Pumphrey, 122 M.S.P.R.
      186, ¶¶ 10-11 (to show harmful error, an appellant must provide proof of actual
      harm resulting from an agency’s procedures). Even if we were to find that the
      agency committed a procedural error by not providing the appellant with a printed
      copy of the material it relied on in support of the proposed furlough, the appellant
      has not identified any changes he would have made to his replies if he had
      accessed the material in advance.     There is no basis for concluding that the
      agency’s decision regarding the furloughs would have been different. Therefore,
      we agree with the administrative judge’s finding that the appellant failed to prove
      that the agency committed a harmful error.
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                  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 appeal to
the 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
                                                                                  9

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.
