UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 32

Docket No. AT-0752-13-4332-I-1

Lee Ronso,

Appellant,

v.

Department of the Navy,

Agency.

April 14, 2015

Lee Ronso, Cantonment, Florida, pro se.

Thomas J. Tangi, Jacksonville, Florida, for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellant has petitioned for review of the initial decision, which

affirmed the agency’s furlough action. For the following reasons, we conclude 

that the petitioner has not established a basis under 5 C.F.R. § 1201.115 for 

granting the petition for review. We therefore DENY the petition for review and 

AFFIRM the initial decision AS MODIFIED.

BACKGROUND

¶2 The appellant is a Rehabilitation Program Manager for the agency’s 

substance abuse clinic in Pensacola, Florida. Initial Appeal File (IAF), Tab 10 

at 4. On June 3, 2013, the agency sent him a notice of proposed furlough, citing 
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budget cuts required by the Budget Control Act of 2011, as amended by the 

American Taxpayer Relief Act of 2012. Id. at 6-8. The notice proposed 

furloughing full-time employees, such as the appellant, for up to 11 days. Id. 

at 7. On June 26, 2013, the appellant received the agency’s decision, upholding 

the proposed furlough. Id. at 9-11.

¶3 The appellant filed this appeal with the Board. IAF, Tab 1. After holding 

the requested hearing, the administrative judge upheld the furlough. IAF, Tab 13, 

Initial Decision (ID). The appellant has filed a petition for review. 1

 PFR File, 

Tab 1. The agency has not filed a response.

 

1 The appellant’s petition for review contains new arguments that were not raised 

below. Despite solely relying on an exception for the protection of life and property

below, IAF, Tab 7 at 4, the appellant’s petition suggests that another furlough exception 

also may have applied to his position, Petition for Review (PFR) File, Tab 1 at 9 

(referencing the authority of deciding officials to approve up to 50 individual, 

mission-based exceptions to the furlough); IAF, Tab 11 at 8 (permitting designated 

agency officials to approve up to 50 additional exceptions as needed to ensure safe and 

efficient operations of their departments). He also seems to suggest that the agency’s 

furlough decisions may have been motivated by sex discrimination. See PFR File, 

Tab 1 at 23. However, 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). Because the appellant made 

no such showing, we will not consider his new arguments on review. 

The appellant also suggests that the administrative judge erred in allowing the deciding 

official the opportunity to review a document during her testimony, without affording 

him a similar opportunity concerning another document. See PFR File, Tab 1 at 6

(referencing a copy of a document which is available in the Department of the Navy’s

Administrative Record for FY 2013 Furlough Appeals, Part 2 at 125-27, available at

http://www.mspb.gov/furloughappeals/navy2013.htm). However, because the appellant 

failed to present any argument that this purported error affected his substantive rights, it 

is of no legal consequence and we will not consider it further. See Tan v. Department 

of Veterans Affairs, 89 M.S.P.R. 15, ¶ 5 (2001) (the proponent of an alleged procedural 

error bears the burden of demonstrating that it adversely affected his substantive rights; 

absent that adverse effect, the error is harmless).
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ANALYSIS

¶4 Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an 

employee for 30 days or less “only for such cause as will promote the efficiency 

of the service.” Accordingly, an agency must prove that cause existed for the 

furlough and that the furlough promotes the efficiency of the service. Dye v. 

Department of the Army, 121 M.S.P.R. 142, ¶ 9 (2014). An agency satisfies the 

efficiency of service standard in a furlough appeal 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. Chandler v. Department of the 

Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). 

¶5 The appellant does not dispute the administrative judge’s finding that the 

agency’s furloughs were a reasonable management solution to the budget cuts 

required by sequestration and promoted the efficiency of the service, generally, 

and we decline to revisit the administrative judge’s well-reasoned findings on the 

issue. ID at 3-5; see generally Lopez v. Department of the Navy, 121 M.S.P.R. 

647, ¶¶ 4, 15-16 (2014) (affirming the administrative judge’s determination that 

furloughs were a reasonable management solution to the financial restrictions 

resulting from sequestration). Nor does the appellant allege that the agency 

applied the furlough in an unfair or uneven manner. See Chandler, 120 M.S.P.R. 

163, ¶ 8 (explaining that “fair and even manner” means that the agency treated 

similar employees similarly and justified any deviations with legitimate 

management reasons). Instead, the appellant alleges that he fell within one of the 

agency’s designated exceptions for the furlough, based upon the nature of his 

position managing a substance abuse program. PFR File, Tab 1 at 8-23. He also 

alleges that, contrary to the administrative judge’s findings, the agency violated 

its own policy and his due process rights when the deciding official delegated the 

task of receiving oral responses to the furlough proposals. Id. at 5-7, 15-18. We 

find no merit to these arguments.
4

The administrative judge properly found that the agency proved cause for the 

appellant’s furlough because he met the criteria for being subject to, and not 

excepted from, the furlough.

¶6 The appellant has consistently argued that he should have been excepted 

from the furlough based upon the nature of his position. E.g., IAF, Tab 7 at 4. 

According to the appellant, he fell within the exception that applied to select 

medical personnel. See IAF, Tab 7 at 4, Tab 11 at 7-8. We find no error in the 

administrative judge finding otherwise.

¶7 The agency’s burden to show “cause” for a furlough encompasses whether 

the appellant met the criteria established by the agency for being subject to, and 

not excepted from, the furlough. 2

 Dye, 121 M.S.P.R. 142, ¶ 9. The Secretary of

Defense issued a memorandum establishing a number of exceptions to the 

decision to furlough employees. See IAF, Tab 11 at 7-11. Among them was an 

exception for “those employees necessary to protect safety of life and property 

. . . to the extent necessary to protect life and property . . . includ[ing] selected 

medical personnel.” Id. at 7. The memorandum elaborated that “exceptions for 

the medical category are approved with the understanding [that] these exceptions 

preserve the minimum level of personnel needed to maintain quality of care in 

24/7 emergency rooms and other critical care areas such as behavioral health.” 

Id. at 8.

¶8 The deciding official for the appellant’s furlough limited her use of this 

exception to medical staff providing emergency and in-patient services. See IAF, 

Tab 12, Hearing Compact Disk (HCD) (deciding official testimony). She did not 

use the exception for personnel that serviced out-patient clinics, such as the 

 

2 The administrative judge framed the issue of whether the appellant fell within an 

exception to the furlough as an issue of “efficiency of the service.” ID at 5. However, 

this issue is more appropriately addressed as one of cause. ID at 5-7. To the extent that 

the administrative judge incorrectly characterized this discussion, we modify the initial 

decision.
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appellant. See id. On review, the appellant asserts that the deciding official 

interpreted the exception too narrowly by not including out-patient services. PFR 

File, Tab 1 at 13, 19-21. He argues that his position at an out-patient clinic is 

critical to the well-being of patients. Id. at 8-11. According to the appellant, he 

is the only civilian in his department, so his furlough resulted in his unqualified 

subordinates managing the substance abuse treatment program on the days he was 

furloughed. Id. at 8-9. He also argues that he was deemed essential or exempt 

during the later government shutdown, so he should have been excepted from the 

furloughs resulting from sequestration for the same reasons. Id. at 14-15.

¶9 Although we appreciate the appellant’s concern for the well-being of 

patients, we find no error in the administrative judge’s determination that the 

agency proved cause, despite declining to apply the furlough exception for select 

medical personnel to the appellant. See ID at 6-8; see also Broughton v. 

Department of Health & Human Services, 33 M.S.P.R. 357, 359 (1987) (finding 

no reason to disturb the administrative judge’s findings where the administrative 

judge considered the evidence as a whole, drew appropriate inferences, and made 

reasoned conclusions). Because the exception included the phrase “to the extent 

necessary,” it did not create a blanket exception. See IAF, Tab 11 at 7; see also

Lopez, 121 M.S.P.R. 647, ¶ 11. Instead, the exception contemplated that 

management would exercise discretion, as it did here, in determining which 

employees were needed to preserve minimal care. See IAF, Tab 11 at 7. 

¶10 We also find no error in the administrative judge’s determination that,

while the appellant may have been deemed “essential” or “exempt” for purposes 

of a government shutdown,3 that determination is not dispositive for purposes of 

 

3 The referenced “government shutdown” was a period from October 1-16, 2013, during 

which nonexempt federal employees were furloughed after Congress failed to pass a 

budget or continuing resolution in time to avoid a lapse in appropriations. See 

generally Continuing Appropriations Act of 2014, Pub. L. No. 113-46, 127 Stat. 558 
6

the agency’s exceptions for furloughs resulting from sequestration. ID at 7-8. 

The appellant has argued that the government shutdown and sequestration are 

comparable because both required furloughs due to fiscal issues. PFR File, Tab 1 

at 14-15. He asserts that it is illogical that he worked throughout the shutdown 

because he was “essential” when the agency had no funding, but was furloughed 

when sequestration caused the agency to have reduced funding. Id. at 15.

¶11 We agree with the administrative judge’s decisions to credit the deciding 

official’s testimony and find that the government shutdown and sequestration 

each required a unique assessment of staffing needs. ID at 7-8. While the 

government shutdown was governed by the Antideficiency Act, Pub. L. No. 

97-258, 96 Stat. 877 (1982) (codified, in pertinent part, as amended, at 31 U.S.C. 

§ 1342), the sequestration furloughs were governed by the agency’s internal 

policy, see IAF, Tab 11 at 4-13. Like the sequestration furlough exception for 

“employees necessary to protect safety of life and property,” the furloughs that 

resulted from the government shutdown had a similar exception “for emergencies 

involving the safety of human life or the protection of property.” 31 U.S.C. 

§ 1342; IAF, Tab 11 at 7. However, despite this facial similarity, the 

administrative judge found, based on the testimony of the deciding official, that 

the circumstances of the government shutdown furlough resulted in more 

exceptions. The agency had to determine which employees would be exempt

from the government shutdown furloughs with the knowledge that employees who 

were not excepted would be absent on a continuous, rather than a sporadic, basis

and without the knowledge of when the shutdown would come to an end. See

HCD (deciding official testimony). By comparison, the agency knew that 

employees would be furloughed no more than 11 days due to sequestration, and 

the agency was able to space out those days over the course of several months. 

 

(2013) (ending the October 2013 government shutdown by providing appropriations for 

the remainder of the fiscal year).
7

Id.; IAF, Tab 11 at 6. In essence, the government shutdown required that the 

agency abruptly wind down and stop many activities, while sequestration 

permitted the agency to engage in a more thoughtful consideration of how to 

reduce spending over the course of a fiscal year to accommodate a reduced 

budget.4

 See HCD (deciding official testimony). Accordingly, the agency’s 

determination that the appellant was essential during the government shutdown 

did not prevent it from proving cause for his sequestration furlough, as it did 

here. 

The appellant did not establish that the agency committed a due process violation 

or harmful error by delegating the task of receiving oral replies.

¶12 The appellant does not dispute that he was given the opportunity to respond 

to the proposed furlough. Instead, he argues that the agency violated his due 

process rights and committed harmful error because the deciding official 

delegated the task of receiving oral replies to a designated official, rather than 

receiving them personally. PFR File, Tab 1 at 5-7; see HCD (deciding official 

testimony). We disagree.

¶13 Prior notice and an opportunity to respond to an appealable agency action 

are fundamental due process requirements for a tenured public employee. See

Cleveland Board of Education v. Loudermill, 470 U.S. 532, 546 (1985); see also

Gilbert v. Homar, 520 U.S. 924, 930 (1997) (recognizing that due process rights 

may vary depending on the circumstances). Here, the agency proposed 

furloughing the appellant, but first provided him with 7 days to respond orally 

and/or in writing. IAF, Tab 10 at 7-8. Accordingly, the agency provided the 

appellant with the required constitutional right to minimum due process and a 

 

4 The appellant does not dispute this distinction in the two furloughs. See PFR File, 

Tab 1 at 14-15 (containing the appellant’s argument that he should have been deemed 

essential during both furloughs because they were both “based on fiscal issues” and he 

is essential for patient care).
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meaningful opportunity to respond.5 See generally Kinsey v. Department of the 

Navy, 59 M.S.P.R. 226, 229 (1993) (where an agency has provided an employee 

with an opportunity to make a written reply to a notice of proposed adverse 

action, its failure to afford him an opportunity to make an oral reply does not 

violate his right to minimum due process). 

¶14 Even though we find no due process violation, we still must determine 

whether the agency committed a procedural error. See Stone v. Federal Deposit 

Insurance Corporation, 179 F.3d 1368, 1377-78 (Fed. Cir. 1999) (observing that, 

in addition to the right to due process, “[p]ublic employees are . . . entitled to 

whatever other procedural protections are afforded to them by statute, regulation, 

or agency procedure”). Therefore, we must examine whether the agency 

committed a harmful error by virtue of the deciding official delegating the 

authority to receive oral replies to the proposed furlough. See Ward v. U.S. 

Postal Service, 634 F.3d 1274, 1281 (Fed. Cir. 2011) (holding that procedural 

 

5 The appellant disputes the administrative judge’s finding that he did not submit an 

oral or written reply to the proposed furlough. PFR File, Tab 1 at 7, 17; see ID at 6. 

According to the appellant, he submitted an oral reply to his immediate supervisor. 

PFR File, Tab 1 at 7, 17. However, other than his own testimony, the appellant 

presented no evidence of this reply, such as testimony from his supervisor. Moreover, 

to the extent that he orally disputed the proposed furlough to his supervisor, this was 

not the appropriate avenue for submitting a reply, as the appellant implicitly 

acknowledges. Compare IAF, Tab 10 at 8 (furlough proposal directing the appellant to 

contact a specific Human Resources representative to arrange for an oral reply if he 

wished to submit one), with PFR File, Tab 1 at 7 (indicating that he “did not reply via 

[Human Resources]” because he did not trust that his statement would be reported “in 

an accurate and factual manner”). Accordingly, we see no meaningful distinction 

between the appellant’s testimony that he “orally replied” to his immediate supervisor 

and the administrative judge’s finding. See generally Flores v. Department of Defense, 

121 M.S.P.R. 287, ¶ 11 (2014) (finding that in the absence of any indication that the 

appellant made a reasonable effort to assert his right to respond, or that the agency 

denied him his right to respond through action, negligence, or design, the appellant was 

not denied due process); Ray v. Department of the Army, 97 M.S.P.R. 101, ¶¶ 7, 22 

(2004) (finding no due process violation where the appellant asked to respond to a 

proposed removal after the agency’s deadline for doing so and the agency refused), 

aff’d, 176 F. App’x 110 (Fed. Cir. 2006). 
9

errors are subject to a harmful error analysis). An appellant bears the burden of 

proving, by preponderant evidence, that the agency committed harmful error in 

reaching its decision. 5 C.F.R. § 1201.56(a)(2)(iii), (b)(1), (c)(2). A harmful 

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. 5 C.F.R. § 1201.56(c)(3). 

¶15 In asserting harmful error, the appellant relies on the May 14, 2013 

memorandum from the Secretary of Defense that detailed which employees could 

be excepted from the furloughs. See IAF, Tab 11 at 4-14. The memorandum

indicated that the designated official for determining who would be excepted 

from the furloughs would be no lower than a local Installation Commander and 

that these responsibilities could not be delegated further. Id. at 8. 

¶16 Despite the aforementioned memorandum, the record reveals that the 

deciding official’s delegation of the duty to receive oral replies was consistent 

with agency policy. See Department of the Navy’s Administrative Record for FY 

2013 Furlough Appeals, Part 1 at 36, available at http://www.mspb.gov/furlough

appeals/navy2013.htm. The policy pertaining to furloughs, dated 10 days after 

the memorandum cited by the appellant, explicitly provided that “[a]n individual 

other than the [d]eciding [o]fficial may be delegated as the [r]eply [o]fficial” for 

oral replies. Id. Moreover, even if the agency had erred in delegating the duty of 

receiving oral replies, the appellant failed to present any argument or evidence as 

to how the error was harmful. See Pumphrey v. Department of 

Defense, 122 M.S.P.R. 186, ¶ 10 (2015) (the Board may not assume that an 

employee has been harmed by a procedural error in the adverse action process; 

the appellant bears the burden of proving harm). Accordingly, the administrative 

judge properly found that the appellant failed to show that the agency committed 

either a due process violation or a harmful error.
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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 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:

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.
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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 

prepayment of fees, costs, or other security. See 42 U.S.C. § 2000e-5(f) 

and 29 U.S.C. § 794a.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.