                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


     MICHAEL DRIVER,                                 DOCKET NUMBER
                  Appellant,                         DE-0752-13-0370-I-1

                  v.

     DEPARTMENT OF DEFENSE,                          DATE: April 13, 2015
                 Agency.



             THIS FINAL ORDER IS NO NPRECEDENTIAL ∗

           Michael Driver, Pleasant View, Utah, pro se.

           Dorothy Campbell, Fort Meade, Maryland, 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 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 regulation or the
     erroneous application of the law to the facts of the case; the judge’s rulings

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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. We MODIFY
     the initial decision to discuss the appellant’s argument that the furlough did not
     promote the efficiency of the service, but we conclude that this argument does not
     warrant a different outcome. Except as expressly MODIFIED by this Final Order,
     we AFFIRM the initial decision.

                                       BACKGROUND
¶2        The appellant, an Information Technology Specialist, filed an appeal,
     challenging the agency’s decision to furlough him for less than 30 days. Initial
     Appeal File (IAF), Tab 1; see id. at 7-11 (notice of decision); IAF, Tab 9 at 3-4
     (the appellant’s furlough Standard Form 50, which stated that he would be
     furloughed on discontinuous days between July 8, 2013, and September 30, 2013,
     not to exceed a maximum of 88 hours). In an initial decision based on the written
     record, the administrative judge addressed the appellant’s argument that the
     agency improperly imposed the furlough because his position was funded by the
     agency’s working capital fund (WCF); the administrative judge found, however,
     that even if the agency could have compensated for sequestration without
     furloughing employees, the Department of Defense was still entitled to furlough
     WCF employees and apply the saved money to other priorities.         IAF, Tab 25,
     Initial Decision (ID) at 5-6. The administrative judge further found that: (1) the
     agency established that it faced a lack of funds; (2) the furlough was a reasonable
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     solution to this problem; and (3) the agency determined which employees to
     furlough in a fair and reasonable manner. ID at 4-7. Thus, the administrative
     judge determined that the furlough promoted the efficiency of the service, and she
     affirmed the agency’s action.      ID at 7.   She also found no evidence that the
     appellant was furloughed based on partisan political affiliation or personal
     favoritism, and therefore, he did not establish a violation of 5 U.S.C. § 2301. ID
     at 6.
¶3           The appellant filed a petition for review. Petition for Review (PFR) File,
     Tab 1. The agency did not file a response.

                       DISCUSSION OF ARGUMENTS ON REVIEW
¶4           On review, the appellant argues that: (1) he is a WCF employee and it
     would be a misappropriation of funds to return his unpaid salary to a reserve
     account for a defense agency; and (2) his furlough did not promote the efficiency
     of the service because the agency was prevented from fulfilling its obligation to
     meet service level agreements and Defense Information Systems Agency (DISA)
     contractors were paid additional monies to perform additional duties. PFR File,
     Tab 1 at 4-6.
¶5           A furlough is the placing of an employee in a temporary status without
     duties and pay because of a lack of work or funds or other nondisciplinary
     reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or
     less, as here, are reviewable under the “efficiency of the service” standard found
     in 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.
     163, ¶ 5 (2013).      An agency satisfies this standard in a furlough appeal by
     showing 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. Id., ¶ 8.
¶6           Since the appellant filed his petition for review, the Board issued a decision
     in Einboden v. Department of the Navy, 2015 MSPB 26, ¶ 9, in which it evaluated
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     Mr. Einboden’s argument that there were no financial restrictions placed upon his
     organization because his salary was paid by WCFs that were not subject to a
     sequester order. The Board held that even if WCFs were exempt from sequester,
     it would still have to determine whether there were financial restrictions placed
     on the agency and whether the furlough was a reasonable management solution to
     these restrictions.   Id., ¶ 13 (citing Chandler, 120 M.S.P.R. 163, ¶ 8).     After
     discussing the various restrictions placed upon the agency, and noting that it was
     reasonable for the Department of Defense to consider its budget situation
     holistically, rather than isolating the situation of each individual Navy
     organization or component, the Board in Einboden concluded that the furlough
     action was a reasonable management solution to the financial restrictions placed
     upon the agency. Einboden, 2015 MSPB 26, ¶¶ 14-18.
¶7         The Board’s decision in Einboden controls our analysis of the WCF
     argument raised on review by the appellant. Even if the WCF in this matter was
     exempt from sequester, the appellant has not persuaded us that the administrative
     judge erred in her assessment of the financial restrictions placed on the agency or
     in her conclusion that the furlough was a reasonable management solution to
     these restrictions and that the furlough was applied in a uniform and consistent
     manner among similarly-situated employees. See ID at 5-7. We therefore affirm
     the administrative judge’s analysis in this regard.
¶8         Regarding the appellant’s assertion that the furlough did not promote the
     efficiency of the service because the agency was unable to fulfill its obligation to
     meet service level agreements, he raised this argument below, but the
     administrative judge did not address it in the initial decision.    See, e.g., IAF,
     Tab 13 at 4-6; see also ID.      We modify the initial decision to address this
     argument herein. The Board has held that disruptions such as delays, mission
     failures, and cancellations relating to administrative or day-to-day operations are
     the likely result of any furlough and do not demonstrate a failure to meet the
     efficiency of the service standard.         See Gajdos v. Department of the
                                                                                        5

      Army, 121 M.S.P.R. 361, ¶ 12 (2014).      Thus, the agency’s alleged inability to
      fulfill its obligation to meet service level agreements does not show that the
      agency did not meet the efficiency of the service standard.
¶9         Regarding his assertion that the furlough did not promote the efficiency of
      the service because DISA contractors were paid additional monies to perform
      additional duties, it does not appear that the appellant raised this argument below.
      The Board generally will not consider an argument raised for the first time in a
      petition for review absent a showing that it is based on new and material evidence
      not previously available despite the party’s due diligence. Banks v. Department
      of the Air Force, 4 M.S.P.R. 268, 271 (1980). The appellant has not made such a
      showing.
¶10        Even if the appellant raised this argument below, it does not warrant a
      different outcome. The Board has held that reduction in force (RIF) principles
      are instructive in determining the scope of its review of adverse action furloughs
      and what it means for a furlough of 30 days or less to be taken for the “efficiency
      of the service.” Chandler, 120 M.S.P.R. 163, ¶ 7. In finding that the efficiency
      of the service determination does not encompass agency spending decisions per
      se, including spending on personnel matters, the Board in Chandler cited to,
      among other cases, Griffin v. Department of Agriculture, 2 M.S.P.R. 168, 171
      (1980), which held that an agency’s decision to replace certain employees with
      private contractors was a matter committed by law to agency discretion and was
      unreviewable by the Board in the context of a RIF proceeding.                   See
      Chandler, 120 M.S.P.R. 163, ¶ 9. Taken together, Chandler and Griffin support
      the conclusion that the agency’s alleged decision to pay DISA contractors to
      perform additional work is not reviewable by the Board.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
           The initial decision, as supplemented by this Final Order, constitutes the
      Board's final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
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request the United States Court of Appeals for the Federal Circuit to review this
final decision.    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
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
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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.
