                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 10

                             Docket No. DC-0752-13-1077-I-1

                               William Ralph Pumphrey, 1
                                        Appellant,
                                             v.
                                 Department of Defense,
                                         Agency.
                                     January 30, 2015

           William Ralph Pumphrey, Silver Spring, Maryland, pro se.

           Steven J. Weiss, Esquire, Washington, D.C., for the agency.

                                         BEFORE

                             Susan Tsui Grundmann, Chairman
                             Anne M. Wagner, Vice Chairman
                                Mark A. Robbins, Member



                                 OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     affirmed his 3-day furlough. For the following reasons, we GRANT the petition
     for review and AFFIRM the initial decision. We SUPPLEMENT the analysis in
     the initial decision to address the appellant’s due process argument and to deny



     1
       Pursuant to 5 C.F.R. § 1201.36, this appeal was part of a consolidation, Pentagon
     Force Protection Agency v. Department of Defense, MSPB Docket No. DC-0752-14-
     0222-I-1.
                                                                                       2

     his request for a protective order. The agency’s action furloughing the appellant
     is AFFIRMED.

                                      BACKGROUND
¶2         The agency furloughed the appellant for 3 days from his Police Officer
     position with the Pentagon Force Protection Agency due to budgetary cuts related
     to sequestration, i.e., across-the-board reductions to budgetary resources in fiscal
     year 2013. Initial Appeal File (IAF), Tab 8. After consolidating this case with
     other appeals and holding a hearing at which the appellant participated, the
     administrative judge affirmed the furlough actions.           MSPB Docket No.
     DC-0752-13-1077-I-1, Consolidated Appeal File, Tab 20, Initial Decision (ID).
     The administrative judge found that the agency established that a lack of funds
     was a legitimate reason to invoke the furlough and that the furlough promoted the
     efficiency of the service. ID at 4-5, 7. The administrative judge found that the
     appellant failed to establish harmful error regarding the agency’s failure to grant
     his requests for 4 hours of official time and a 14-day extension of time to respond
     to the notice of proposed furlough.      ID at 5-6.    She further found that the
     agency’s responses to the appellant’s requests were not independently appealable
     actions and did not constitute harassment or retaliation in connection with his
     furlough appeal from which he needed protection from the Board. ID at 6.
¶3         The appellant has filed a petition for review, which the agency opposes.
     Petition for Review (PFR) File, Tabs 1, 3.

                                        ANALYSIS
     The appellant did not establish that the agency committed a constitutional due
     process violation or a harmful error under 5 U.S.C. § 7701(c)(2)(A) by failing to
     extend the time period during which he could reply to the notice of proposed
     furlough or by failing to grant him official time to reply to that notice.
¶4         The appellant argues that the agency denied him due process by failing to
     grant his requests for use of official time and for an extension of time to reply to
     the notice of proposed furlough. PFR File, Tab 1 at 1-2. He claims that, had he
                                                                                       3

     been afforded this time, he might have been able to incorporate into his reply,
     among other things, information from an inspector general’s report that is
     obtainable by internet search. Id. at 2.
¶5         The administrative judge considered these arguments as allegations of
     harmful error under 5 U.S.C. § 7701(c)(2)(A).      ID at 5-6.    In his petition for
     review, the appellant specifically claims that the agency denied him due process,
     PFR File, Tab 1 at 1, and his allegations before the administrative judge similarly
     referenced and implicated due process concerns, e.g., IAF, Tab 21. Although the
     harmful error and due process issues are intertwined in this case, separate
     considerations are involved. See Ray v. Department of the Army, 97 M.S.P.R.
     101, ¶ 13 (2004), aff’d, 176 F. App’x 110 (Fed. Cir. 2006).          Therefore, we
     supplement the analysis in the initial decision as follows.
¶6         An agency’s failure to provide a tenured public employee with an
     opportunity to present a response, either in person or in writing, to an appealable
     agency action that deprives him of his property right in his employment
     constitutes an abridgement of his constitutional right to minimum due process of
     law, i.e., prior notice and an opportunity to respond.          Cleveland Board of
     Education v. Loudermill, 470 U.S. 532, 546 (1985).            For purposes of this
     decision, we assume that the appellant has a property interest at stake based on
     5 U.S.C. §§ 7512(5) and 7513(a), which generally create a legitimate claim of
     entitlement to retention in a pay status that conditions the furlough of an
     employee for 30 days or less on such cause as will promote the efficiency of the
     service.   See Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶¶ 13-14
     (2014). In this context, minimum due process of law requires prior notice and a
     meaningful opportunity to respond. See id., ¶¶ 14, 18.
¶7         The appellant admits that he received the agency’s written notice of
     proposed furlough on May 28, 2013, as indicated by his signature and
     acknowledgment on the proposal notice. PFR File, Tab 1 at 1; see IAF, Tab 8 at
     8. The proposal notice set forth the agency’s reasons for the furlough and stated
                                                                                            4

     that supporting materials could be reviewed on an agency website or in
     designated Furlough Reading Room locations. IAF, Tab 8 at 6-7. The proposal
     notice informed the appellant that he could respond orally and/or in writing
     within 14 calendar days from his receipt of the notice. Id. at 7. The appellant
     asserts that the agency issued its final decision on July 2, 2013. PFR File, Tab 1
     at 1. Thus, he received a pre-decisional opportunity to respond to the proposed
     furlough, and he remained entitled to a full post-furlough hearing before the
     Board. 2
¶8         In Loudermill, the Supreme Court clarified that if a tenured public
     employee is entitled to a full post-decisional hearing, such as a hearing before the
     Board, a pre-decisional trial-type hearing is not required and fundamental due
     process requirements are satisfied if the employee has a pre-decisional
     opportunity to present, either in person or in writing, reasons why the proposed
     action should not be taken.       Ray, 97 M.S.P.R. 101, ¶ 22 (citing Loudermill,
     470 U.S. at 546). Such opportunity “need not definitively resolve the propriety
     of the [action],” but rather “should be an initial check against mistaken
     decisions--essentially, a determination of whether there are reasonable grounds to
     believe that the charges against the employee are true and support the proposed
     action.” Loudermill, 470 U.S. at 545-46. Although the appellant would have
     preferred additional time and/or official time, apparently to gather evidence,
     before responding to the agency, PFR File, Tab 1 at 1-2, the 14-day reply period
     allowed him a meaningful opportunity and reasonable time to respond consistent

     2
       The appellant’s petition for review appears to dispute that he was given pre-decisional
     access to materials relied upon in the notice of proposed furlough. PFR File, Tab 1 at
     3. He provides no further detail regarding this claim, which he appears to have failed to
     timely raise with the administrative judge. In any event, the notice of proposed
     furlough informed the appellant of how to view supporting materials at either an agency
     website or a designated Furlough Reading Room. IAF, Tab 8 at 7. His vague statement
     on review, which is unsupported by any factual allegations, does not support a finding
     of a due process violation or harmful error.
                                                                                      5

      with Loudermill and was constitutionally sufficient, see Ray, 97 M.S.P.R. 101,
      ¶ 22; Stephen v. Department of the Air Force, 47 M.S.P.R. 672, 685-86 (1991).
      Under the circumstances of this case, we find that the appellant did not establish
      that the agency violated his due process rights.
¶9          Although the agency’s conduct did not constitute a constitutional violation,
      we must still decide whether the agency committed a harmful procedural error.
      See, e.g., Ward v. U.S. Postal Service, 634 F.3d 1274, 1281-83 (Fed. Cir. 2011).
      Under 5 U.S.C. § 7701(c)(2)(A), the Board will not sustain an agency decision if
      the appellant “shows harmful error in the application of the agency’s procedures
      in arriving at such decision.”   The record does not support a finding that the
      agency committed a procedural error in not granting the appellant’s requests for
      official time and an extension of time to reply to the proposal notice.
¶10         Further, even assuming that the agency should have granted these requests,
      the appellant has failed to demonstrate any prejudice to his substantive rights.
      The Board may not assume that an employee has been harmed by a procedural
      error in the adverse action process; rather, the appellant bears the burden of
      proving harm.     Ward, 634 F.3d at 1281-82; Handy v. U.S. Postal Service,
      754 F.2d 335, 337-38 (Fed. Cir. 1985); Doe v. Department of Justice,
      118 M.S.P.R. 434, ¶ 31 (2012). A procedural error is harmful where the record
      shows that the 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.
      Doe, 118 M.S.P.R. 434, ¶ 31; 5 C.F.R. § 1201.56(c)(3).
¶11         The appellant claims that he might have presented evidence of an inspector
      general’s report or that the agency continues to grant a “free hour to certain
      employees before every holiday.” PFR File, Tab 1 at 2. Even assuming that the
      appellant’s failure to incorporate these matters into his reply is due to the
                                                                                            6

      agency’s denial of his requests, 3 he has not shown that this report or his
      allegations likely would have caused the agency to reach a different conclusion.
      He further speculates that he might have been able to raise “numerous” other
      unidentified issues had the agency granted his requests. Id. He has not explained
      why he would have been able to raise additional issues had the agency granted his
      requests for additional time in 2013 when he has not identified any such issue
      even at this later date. The appellant’s speculation is insufficient to meet his
      burden of establishing harm. See Stephen, 47 M.S.P.R. at 682-83 (noting that an
      appellant must provide proof of actual harm resulting from any agency procedural
      error, which requires more than the possibility that the same evidence presented
      to the Board might have been viewed differently by the agency); Mack v.
      Department of the Navy, 28 M.S.P.R. 288, 290-91 (1985) (finding that the
      appellant failed to show any harmful error in the agency’s failure to rule on his
      request for an extension of time to prepare a response to a proposed adverse
      action); Robinson v. Department of Transportation, 16 M.S.P.R. 264, 266 (1983)
      (finding that the appellants failed to establish that alleged procedural errors,
      including the denial of official time to review the agency records, were harmful),
      aff’d, 769 F.2d 1556 (Fed. Cir. 1985); Padilla v. Veterans Administration,
      6 M.S.P.R. 494, 496-97 (1981) (finding that the appellant failed to demonstrate
      that the denial of official time for a union representative to prepare the
      appellant’s case caused substantial harm or prejudice to his rights).

      The appellant has not established a basis for a protective order under 5 U.S.C.
      § 1204(e)(1)(B).
¶12         The appellant claims that the agency retaliated against him for exercising
      his right to contest the furlough. PFR File, Tab 1 at 3. Specifically, he claims


      3
       By the appellant’s own admission, the inspector general’s report “is a matter of record
      and obtainable by internet search.” PFR File, Tab 1 at 2.
                                                                                       7

      that the agency refused to allow him to pick the days of the week to serve his
      furlough days in retaliation for his challenging the furlough decision. Id.; IAF,
      Tab 16 at 2-3.
¶13         The agency’s decision regarding the scheduling of the particular furlough
      days for the appellant is not an independently appealable action under chapter 75
      of Title 5 of the U.S. Code, and generally is not a matter within the scope of the
      Board’s review of a furlough action under chapter 75.            See Chandler v.
      Department of the Treasury, 120 M.S.P.R. 163, ¶ 20 (2013) (upholding the
      administrative judge’s determination that the appellant was not entitled to
      discovery of information relating to whether some employees were allowed
      greater flexibility than others in scheduling their furlough days; such information
      pertains to management decisions regarding scheduling of the furlough, which are
      matters outside the Board’s jurisdiction).
¶14         Nevertheless, the Board and its administrative judges are authorized to
      issue any order that may be necessary to protect a witness or other individual
      from harassment in connection with a pending Board matter.                5 U.S.C.
      § 1204(e)(1)(B); 5 C.F.R. § 1201.41(b)(14). A request for such a protective order
      will not be granted unless the moving party makes a concise statement of the
      reasons,   together   with   any   relevant   documentary   evidence.     5 C.F.R.
      § 1201.55(d). The Board will not grant such an order based on mere speculation.
      Leaton v. Department of the Interior, 65 M.S.P.R. 331, 341 (1994), aff’d, 64 F.3d
      678 (Fed. Cir. 1995) (Table).      Neither the appellant’s petition for review, nor
      submissions before the administrative judge, contain sufficient information from
      which the Board could conclude that he has been, or may be, subjected to the sort
      of harassment from which 5 U.S.C. § 1204(e)(1)(B)(i) was meant to afford
      protection. Thus, we decline to issue any order under that authority regarding the
      appellant’s unsupported claim of retaliation in connection with the scheduling of
      his furlough days. See Leaton, 65 M.S.P.R. at 341; Heining v. General Services
      Administration, 61 M.S.P.R. 539, 556-57 (1994).
                                                                                       8

      The administrative judge properly denied the appellant’s motion to compel
      discovery and consolidated this appeal for adjudication with other related
      appeals.
¶15         The administrative judge denied the appellant’s motion to compel
      discovery because both the request for production of documents and the motion to
      compel were untimely filed.      Consolidated Appeal File, Tab 16 at 5.        The
      appellant does not dispute that his request and motion were untimely, but rather
      argues that the administrative judge should have excused his untimeliness
      because she allowed the agency to engage in untimely discovery. PFR File, Tab
      1 at 2.   The record reflects that the agency filed a timely motion to compel
      discovery after the appellant refused to respond to its timely discovery requests.
      IAF, Tab 12. We agree with the administrative judge’s explained conclusion that
      the fact that the agency’s discovery requests were misaddressed to “William
      Ralph Humphrey” rather than “Pumphrey” did not excuse the appellant from his
      obligation to respond to the discovery requests, which he admits he otherwise
      timely received. IAF, Tab 14; see Consolidated Appeal File, Tab 17. In contrast,
      the appellant’s discovery request and motion to compel were both untimely, IAF,
      Tabs 17-18, and he has not presented any persuasive basis for excusing his failure
      to comply with the Board’s regulations regarding timely discovery, see
      Consolidated Appeal File, Tab 1 at 4-5 (the administrative judge’s furlough
      procedures order explaining the Board’s discovery process, applicable time
      limits, and regulations at 5 C.F.R. §§ 1201.71-.85). The administrative judge did
      not abuse her discretion in handling these discovery matters.      See Wagner v.
      Environmental Protection Agency, 54 M.S.P.R. 447, 452-53 (1992), aff’d,
      996 F.2d 1236 (Fed. Cir. 1993) (Table).
¶16         Finally, the appellant objects to the administrative judge’s decision to
      consolidate his appeal for adjudication with other appeals, which the appellant
      believes were “based on entirely different circumstances.” PFR File, Tab 1 at 1.
      We discern no error by the administrative judge in utilizing this process, which is
                                                                                         9

      authorized under the Board’s regulations, see 5 C.F.R. § 1201.36, and the
      appellant has not shown that this process affected the outcome of his case, see
      5 C.F.R. § 1201.115(c). Although he disagrees with the administrative judge’s
      conclusions, his particular arguments have been fully considered and adjudicated.

                                                   ORDER
¶17            This is the final decision of the Merit Systems Protection Board in this
      appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
      § 1201.113(c)).

                           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,
                                                                            10

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
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.
