UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MICHAEL T. LARSEN, 1

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-13-2150-I-1

DATE: September 29, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Michael T. Larsen, Yucca Valley, California, pro se. 

Tracey Rockenbach, Esquire, Washington, D.C., for the agency. 

Jay Smith, Camp Pendleton, California, 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 

 1 Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. Marine 

Corps Headquarters – Williams II v. Department of the Navy, MSPB Docket 

No. DC-0752-15-0166-I-1. 

2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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 initial decision, 

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

BACKGROUND

¶2 On June 3, 2013, the agency proposed to furlough the appellant, an 

Attorney, for no more than 11 workdays due to “the extraordinary and serious 

budgetary challenges facing the Department of Defense . . . for the remainder of 

Fiscal Year . . . 2013, the most serious of which is the sequester that began on

March 1, 2013.” Initial Appeal File (IAF), Tab 4 at 18-20. The appellant 

submitted a written reply to the proposal notice. Id. at 16-17. By written notice 

dated July 1, 2013, the agency’s deciding official informed the appellant that he 

would be furloughed as outlined in the proposal notice. Id. at 12-15. The 

deciding official also acknowledged his receipt of the written reply and stated that 

he considered it. Id. at 12. The agency later reduced the duration of the furlough 

from 11 days to 6 days. Department of the Navy Administrative Record for 

FY 2013 Furlough Appeals (AR), Part 1, Tab 3, available at

http://www.mspb.gov/furloughappeals/navy2013.htm. The record includes a 

Standard Form 50 reflecting the appellant’s furlough, effective July 8, 2013, on 
3

discontinuous days between July 8, 2013, and September 27, 2013. IAF, Tab 4 at

11.

¶3 The appellant filed a Board appeal challenging the agency’s furlough 

action, and he requested a hearing. IAF, Tab 1. He alleged that the agency 

violated his due process rights, discriminated against him on the bases of race and 

age, created a hostile work environment, and subjected him to disparate treatment

in applying the furlough. IAF, Tab 1 at 5; Tab 3 at 4; Tab 5 at 4; Tab 9 at 4-5. In 

a furlough procedures order, the administrative judge informed the appellant that 

his appeal had been consolidated with the appeals of similarly situated 

employees. Marine Corps Headquarters – Williams II v. Department of the Navy, 

MSPB Docket No. DC-0752-15-0166-I-1, Consolidation Appeal File, Tab 1. 

After holding a hearing, the administrative judge issued an initial decision 

affirming the furlough. IAF, Tab 13, Initial Decision (ID) at 2, 22. He found that 

the furlough was a reasonable management solution to the shortage of funds 

caused by sequestration and that the agency implemented the furlough in a fair 

and even manner. ID at 15-16, 22. He also found that the appellant did not prove 

a violation of due process or his other affirmative defenses. ID at 16-22. 

¶4 The appellant has filed a petition for review reasserting his claim of a due 

process violation. Petition for Review (PFR) File, Tab 1 at 5-14. He also argues 

that the administrative judge erred by not ruling on two of his motions and by not 

providing him with an opportunity to testify at the hearing. Id. at 14-16. The 

agency has filed a response in opposition. PFR File, Tab 3. The appellant has 

filed a reply to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUMENTS ON REVIEW

The appellant was provided with the required due process. 

¶5 In his petition for review, the appellant argues that he was denied due 

process because the deciding official lacked any actual decision-making 

authority. PFR File, Tab 1 at 6-14, Tab 4 at 8-10. Procedural due process rights 
4

derive from a property interest in which an individual has a legitimate claim of 

entitlement. Gajdos v. Department of the Army, 121 M.S.P.R. 361, ¶ 13 (2014). 

The appellant has a legitimate claim of entitlement to retention in pay status, and 

thus a property interest, pursuant to 5 U.S.C. §§ 7512(5) and 7513(a), which 

conditions his placement in a temporary status without duties and pay on such 

cause as will promote the efficiency of the service. See Gajdos, 121 M.S.P.R. 

361, ¶¶ 13-14. Having found that the appellant has a property interest at stake in 

this appeal, the question remains as to what process is due, and whether the 

procedures the agency applied satisfied the mandates of due process. Id., ¶ 14. 

¶6 Due process is a flexible concept that calls for such procedural protections 

as the particular situation demands. See, e.g., Gajdos, 121 M.S.P.R. 361, ¶ 18; 

Buelna v. Department of Homeland Security, 121 M.S.P.R. 262, ¶¶ 16, 19 (2014). 

The appellant does not dispute that he received prior notice and an opportunity to 

respond, but argues that he was not provided a meaningful opportunity to respond 

because the deciding official was not empowered to make any decision except to 

uphold the proposed furlough. PFR File, Tab 1 at 8-13, Tab 4 at 8-10. Due 

process, however, does not require that the deciding official have the unfettered 

discretion to take any action he or she believes is appropriate upon considering 

the proposed adverse action. Rodgers v. Department of the Navy, 122 M.S.P.R. 

559, ¶ 6 (2015). 

¶7 The appellant argues that Deputy Counsel P.D.’s testimony establishes a per 

se violation of due process and is a distinguishing factor that prevents Gajdos

from controlling the due process issue. PFR File, Tab 1 at 6-13, Tab 4 at 8-10. 

We do not agree. P.D.’s testimony does not rebut the agency’s administrative 

record, which establishes that the deciding official had the authority to modify the 

furlough if he determined that an individual held a position subject to a 

previously established exception, recommend modification of the furlough if he 

concluded that the position at issue should be subject to an exception not 

previously recognized, and adjust the furlough schedule. AR, Part 1, Tab 2, ¶ 12,
5

Tab 6 at 38 of 135; see ID at 9-10; see also IAF, Tab 11 at 4-5. Moreover, the 

Board has already decided that the agency’s policies during the furlough granted 

the deciding officials sufficient decision-making authority to satisfy the 

requirements of due process. See Rodgers, 122 M.S.P.R. 559, ¶ 7. 

¶8 We also do not agree that the administrative judge erred by not considering

P.D.’s testimony on the due process issue. See PFR File, Tab 1 at 5, Tab 4 at 5-8. 

Although an administrative judge’s failure to mention all of the evidence of 

record does not mean that he did not consider it in reaching his decision, Marques 

v. Department of Health & Human Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 

776 F.2d 1062 (Fed. Cir. 1985) (Table), an initial decision must, among other 

things, identify all material issues of fact and law and summarize the evidence on 

each such issue, Spithaler v. Office of Personnel Management, 1 M.S.P.R. 587, 

589 (1980). Here, we do not find P.D.’s testimony pertinent to the due process 

issue because it does not refute the agency’s grant of decision-making authority 

to the deciding official. 

¶9 For these reasons, we find that the agency provided sufficient due process. 

The agency did not commit harmful procedural error in processing the appellant’s 

furlough. 

¶10 Although we have found no constitutional violation, we still must consider 

whether the agency committed harmful procedural error. 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 

are also entitled to “whatever other procedural protections are afforded them by 

statute, regulation, or agency procedure”); see also Pumphrey v. Department of 

Defense, 122 M.S.P.R. 186, ¶ 9 (2015). A harmful procedural error is an error by 

the agency in the application of its procedures 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. Pumphrey, 122 M.S.P.R. 186, ¶ 10; 5 C.F.R. 

§ 1201.4(r). An agency is required to follow its own rules in effecting an adverse 
6

action, regardless of whether those rules go beyond the requirements of 

government-wide statutes and regulations. Rodgers, 122 M.S.P.R. 559, ¶ 10. 

¶11 The appellant has not identified a procedure the agency has violated. We 

find that the agency complied with the Office of Personnel Management’s 

procedures under 5 C.F.R. § 752.404 for implementing an adverse action. See

IAF, Tab 4 at 12-20, Tab 11 at 4-5. We also find that the agency complied with 

the Department of the Navy Administrative Furlough Guidance for Proposing and

Deciding Officials. AR, Part 1, Tab 6 at 32-39 of 135; see IAF, Tab 4 at 12-20,

Tab 11 at 4-5. We therefore find that the agency did not commit a harmful 

procedural error. 

The appellant has not identified any adjudicatory error that would warrant a 

different outcome. 

¶12 The appellant asserts that the administrative judge erred by not ruling on 

two of his motions and by not providing him with an opportunity to testify during 

the hearing. PFR File, Tab 1 at 14-16, Tab 4 at 10-12. An administrative judge’s 

procedural error is of no legal consequence unless it is shown to have adversely 

affected a party’s substantive rights Karapinka v. Department of Energy, 

6 M.S.P.R. 124, 127 (1981); see 5 C.F.R. § 1201.115(c). 

¶13 The day before the hearing, the appellant moved for a decision to be made 

in favor of the appellant without a hearing because of the administrative judge’s 

failure to adjudicate the appeal within 120 days and ex parte communications. 

IAF, Tab 10 at 10-11. He also moved for the administrative judge to take 

“judicial notice” of these two “facts.” Id. The administrative judge did not rule 

on these motions. The Board has recognized that it generally lacks the authority 

to grant summary judgment. Johnson v. Department of Justice, 104 M.S.P.R. 

624, ¶ 30 (2007). The appellant has not shown that this matter presents 

circumstances in which summary judgment is appropriate, and thus we discern no 

prejudicial error. Additionally, he has failed to explain how he was prejudiced by 

the administrative judge’s failure to take official notice under 5 C.F.R. § 1201.64. 
7

¶14 Moreover, the appellant’s claim that the administrative judge violated 

Board policy by failing to issue an initial decision within 120 days of receipt of 

his appeal by the regional office does not establish a basis for review because he 

has not shown that he suffered any harm as a result of this alleged error. See, 

e.g., Drayton v. Equal Employment Opportunity Commission, 11 M.S.P.R. 43, 

46 n.2 (1982).

¶15 The appellant’s claim that the “MSPB and the Agency must admit to having 

numerous ex parte communications in order to schedule the furlough cases” also 

does not provide a basis for review. IAF, Tab 10 at 10-11. Not all ex parte 

communications are prohibited. 5 C.F.R. § 1201.101(a). Only those ex parte 

communications that involve the merits of the case or violate rules requiring 

submissions to be in writing are prohibited. Id. Here, even if ex parte 

communications occurred between the agency and the administrative judge, they 

concerned the scheduling of the furlough appeals, not the merits of the appeals, 

and thus were not prohibited. See Stec v. Office of Personnel Management, 

22 M.S.P.R. 213, 215 (1984). 

¶16 For the first time on review, the appellant alleges that the administrative 

judge denied him the opportunity to testify. PFR File, Tab 1 at 15. An appellant 

has a statutory right to a hearing, and inherent in this right is the right to testify. 

Long v. Department of Transportation, 17 M.S.P.R. 384, 386 (1983); see 5 U.S.C. 

§ 7701(a)(1); see also 5 C.F.R. § 1201.24(d). Here, the administrative judge 

noted in the telephonic prehearing conference summary that the appellant 

reserved the right to call himself as a witness at the hearing. IAF, Tab 9 at 7. 

The administrative judge allowed the appellant to present a closing argument, 

Hearing Compact Disc (HCD), vol. 3 (12:05-12:17), during which he did not 

object to the end of the hearing or request to testify, HCD, vol. 3 (45:40-50:50). 

Neither did he submit a post-hearing brief stating his objection. His failure to 

object to the absence of an opportunity to testify precludes him from doing so on 

review. See, e.g., Valverde v. Department of the Army, 40 M.S.P.R. 380, 383-84 
8

(1989) (finding that the appellant cannot wait until after the adjudication is 

complete to object for the first time to the administrative judge’s conduct at the 

hearing). He also claims that his substantive rights were prejudiced because his 

testimony on damages was critical. PFR File, Tab 1 at 15-16. Even assuming 

that a procedural error occurred, the appellant has failed to show how his 

substantive rights were prejudiced because he did not prove his discrimination

claims and does not raise them on review. See, e.g., Valverde, 40 M.S.P.R. 

at 384. 

¶17 We have reviewed all of the appellant’s arguments on review and find that 

they do not provide a reason to disturb the administrative judge’s findings. 

NOTICE TO THE APPELLANT REGARDING

YOUR FURTHER REVIEW RIGHTS3

You have the right to request further review of this final decision. 

Discrimination Claims: Administrative Review

You may request review of this final decision on your discrimination 

claims by the Equal Employment Opportunity Commission (EEOC). See Title 5 

of the United States Code, section 7702(b)(1) (5 U.S.C. § 7702(b)(1)). If you 

submit your request by regular U.S. mail, the address of the EEOC is: 

Office of Federal Operations

Equal Employment Opportunity Commission

P.O. Box 77960

Washington, D.C. 20013

If you submit your request via commercial delivery or by a method 

requiring a signature, it must be addressed to: 

 3 The administrative judge failed to inform the appellant of his mixed-case right to 

appeal from the initial decision on his discrimination claims to the Equal Employment 

Opportunity Commission and/or the United States District Court. This was error, but 

does not constitute reversible error because we notify the appellant of his mixed-case 

appeal rights in this Final Order. See Grimes v. U.S. Postal Service, 39 M.S.P.R. 183, 

186-87 (1988). 
9

Office of Federal Operations

Equal Employment Opportunity Commission

131 M Street, NE

Suite 5SW12G

Washington, D.C. 20507

You should send your request to EEOC no later than 30 calendar days after 

your receipt of this order. If you have a representative in this case, and your 

representative receives this order before you do, then you must file with EEOC no

later than 30 calendar days after receipt by your representative. If you choose to 

file, be very careful to file on time.

Discrimination and Other Claims: Judicial Action

If you do not request EEOC to review this final decision on your 

discrimination claims, you may file a civil action against the agency on both your 

discrimination claims and your other claims in an appropriate United States 

district court. See 5 U.S.C. § 7703(b)(2). You must file your civil action with 

the district court no later than 30 calendar days after your receipt of this order. If 

you have a representative in this case, and your representative receives this order 

before you do, then you must file with the district court no later than 30 calendar 

days after receipt by your representative. If you choose to file, be very careful to 

file on time. If the action involves a claim of discrimination based on race, color, 

religion, sex, national origin, or a disabling condition, you may be entitled to 

representation by a court-appointed lawyer and to waiver of any requirement of
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prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) and 

29 U.S.C. § 794a. 

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board