United States Court of Appeals 

for the Federal Circuit ______________________ 

VICTORIA CALHOUN,

Petitioner

v.

DEPARTMENT OF THE ARMY,

Respondent

______________________ 

2016-2220

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. PH-0752-13-5389-I-1.

______________________ 

Decided: January 12, 2017

______________________ 

VICTORIA CALHOUN, Severn, MD, pro se.

NATHANAEL YALE, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN 

C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON KIDDMILLER. 

______________________ 

Before NEWMAN, CHEN, and STOLL, Circuit Judges.

NEWMAN, Circuit Judge. 
2 CALHOUN v. ARMY

Victoria Calhoun appeals the decision of the Merit 

Systems Protection Board (“Board”) sustaining the action 

of the Department of the Army imposing a six day furlough in July and August of 2013 in response to sequestration legislation.1 We discern no reversible error in the 

Board’s decision.

BACKGROUND

The Budget Control Act of 2011 established spending 

limits for federal agencies and required automatic spending cuts (“sequestration”) if certain deficit reduction 

legislation was not enacted. Pub. L. No. 112-25, §§ 101-

103, 125 Stat. 240, 241-46 (2011). The American Taxpayer Relief Act of 2012, Pub. L. No. 112–240, § 901, 126 

Stat. 2313, 2370 (§ 901(e)), required the President to issue 

a sequestration order on March 1, 2013, near the middle 

of fiscal year 2013. 126 Stat. at 2370. On that date, 

President Obama issued a sequestration order requiring 

reductions in spending from most federal budget accounts 

for fiscal year 2013. 78 Fed.Reg. 14,633.

As a result, the 2013 budget of the Department of Defense (DOD) was cut by approximately 37 billion dollars, 

to be absorbed in the remaining six months of the fiscal 

year. The DOD took a number of steps to address the 

budgetary shortfall, including reprogramming funds, 

reducing facility maintenance, and eliminating some 

military training exercises. In a May 2013 memorandum, 

the Secretary of Defense explained that furloughs of 

civilian workers would be imposed to address the “historic 

shortfall in our budget” resulting from sequester. 

Ms. Calhoun is a non-excepted civilian Doctrine Defense Specialist employed by the United States Army 

 

1 Calhoun v. Dep’t of Army, No. PH-0752-13-5389-I1, 2016 WL 1566603 (M.S.P.B. Apr. 19, 2016) (Final 

Order).
CALHOUN v. ARMY 3

Cyber Command (ACC), within the Department of the 

Army. The Commander of the ACC, Lt. Gen. Rhett A. 

Hernandez, was designated as the deciding official for the 

furloughs of ACC employees. Lt. Gen. Hernandez delegated that authority to his Chief of Staff, Col. Scott E. 

Sanborn. On May 28, 2013, Ms. Calhoun was issued a 

Notice of Proposed Furlough, including notice of her 

opportunity to reply. Ms. Calhoun exercised her opportunity to reply via an oral presentation to James L. Hillborn, an official designated by Col. Sanborn to hear oral 

replies. Ms. Calhoun also submitted a written reply on 

June 5, 2013. Her replies included budget proposals she 

asserted would prevent furloughs.

On July 1, 2013, Ms. Calhoun received her Notice of 

Decision to Furlough. The Notice stated: “[y]our written 

and oral replies received in response to [the] notice have 

been reviewed and carefully considered. I have determined that the reasons for the proposed furlough, as 

stated in the notice of proposal, remain valid.” S.A. 89. 

In email responses to inquiries by Ms. Calhoun, Col. 

Sanborn stated on July 14, 2013 that “I read through the 

packet that you included,” and on July 30, 2013 that 

“[t]he furlough guidance we received is clear and unfortunately I cannot exempt you for the reasons you have 

highlighted . . . .” S.A. 92–95. Ms. Calhoun was ultimately furloughed for six nonconsecutive days in July and 

August 2013.

Ms. Calhoun filed a notice of appeal with the Board, 

alleging the furlough did not promote the efficiency of the 

service. Ms. Calhoun also alleged that the agency committed harmful error by failing to consider her budget 

proposals. She also stated that Lt. Gen. Hernandez 

improperly delegated his authority as deciding official to 

Col. Sanborn. The administrative judge (AJ) found Lt. 

Gen. Hernandez’s delegation to Col. Sanborn did not 

violate DOD policy. Calhoun v. Dep’t of the Army, No. 

PH-0752-13-5389-I-1, 2015 WL 4712185 (M.S.P.B. July 
4 CALHOUN v. ARMY

30, 2015). The AJ also found that Col. Sanborn appropriately considered Ms. Calhoun’s reply, and that evaluation 

of the merits of her budget proposals was beyond the 

scope of his review as deciding official. The AJ affirmed 

the furlough decisions as a reasonable management 

solution to the shortage of funds caused by sequestration 

and that the furloughs promoted the efficiency of the 

service. Id.

On appeal to the full Board, Ms. Calhoun renewed her 

argument that the agency erred in delegating the responsibilities of the deciding official to Col. Sanborn. Ms. 

Calhoun also asserted a due process violation because the 

deciding official did not receive a written summary of her 

oral reply prior to issuing the decision letter. The Board 

affirmed the AJ’s decision, holding that the delegation to 

Col. Sanborn did not violate DOD policy or introduce 

harmful procedural error. Final Order at ¶9. The Board 

also found no due process violation because Col. Sanborn 

received and considered Ms. Calhoun’s written reply and 

because the summary of her oral reply would not have 

altered the furlough decision. Final Order at ¶10.

Ms. Calhoun appeals.

DISCUSSION

We review the Board’s decision to ascertain whether it 

was (1) arbitrary, capricious, an abuse of discretion or 

otherwise not in accordance with law; (2) obtained without following the procedures required by law; or (3) unsupported by substantial evidence. 5 U.S.C. § 7703(c).

By statute, an agency may furlough an employee “because of lack of work or funds or other nondisciplinary 

reasons.” 5 U.S.C. § 7511(a)(5). Furloughs of thirty days 

or less are deemed adverse employment actions, 5 C.F.R. 

§ 752.401(a)(5), and may only be taken “for such cause as 

will promote the efficiency of the service.” 5 U.S.C. § 

7513(a). An agency satisfies the “efficiency of the service” 
CALHOUN v. ARMY 5

standard by demonstrating that the furlough was “a 

reasonable management solution to the financial restrictions placed on the agency and that the agency determine[d] which employees to furlough in a fair and even 

manner.” Einboden v. Dep’t of Navy, 802 F.3d 1321, 1325 

(Fed. Cir. 2015). An employee faced with an adverse 

action must be provided written notice that must “stat[e] 

the specific reasons for the proposed [adverse] action,” an 

opportunity to answer and to provide “documentary 

evidence in support of the answer”, and a “written decision.” 5 U.S.C. § 7513(b).

The Board found that Ms. Calhoun was furloughed in 

response to sequester legislation and that the furlough 

was a “reasonable management solution” to the financial 

restrictions faced by the agency. Although Ms. Calhoun 

states that the “procedural and legislative changes to fix 

the budgetary IT systems” she proposed would have 

averted furloughs, “[i]t is not our role to second guess 

agency decisions.” Einboden, 802 F.3d at 1325; see also 

Chandler v. Dep’t of the Treasury, No. AT-0752-13-0583-I1, 2013 WL 5273920, at *4 (M.S.P.B. Sept. 18, 2013)

(“Such matters belong to the judgment of agency managers, who are in the best position to decide what allocation 

of funding will best allow the agency to accomplish its 

mission.”). The agency’s decision has not been shown to 

be unreasonable and the Board did not err in applying the 

“efficiency of the service” standard to exclude the secondguessing of agency management and spending decisions.

Ms. Calhoun also states that the Board erred in finding that the deciding official, Col. Sanborn, reviewed the 

presentation accompanying her written reply prior to 

issuing the Notice of Decision. The Board determined, 

based on Col. Sanborn’s sworn declaration, that Col. 

Sanborn did review Ms. Calhoun’s proposal. Substantial 

evidence supports the Board’s finding, for there was no 

contrary information. 
6 CALHOUN v. ARMY

Ms. Calhoun also states that the Army improperly 

delegated authority to Col. Sanborn in violation of internal DOD furlough policies. She states that the policies 

prohibited “further delegations” and that Col. Sanborn 

was not at the identified minimum rank. The policy 

memorandum Ms. Calhoun identifies states:

Relative to the review and decision on individual 

employee requests for exception, per guidance issued via the Principal Deputy Assistant Secretary 

of Defense, Readiness and Force Management, 

memorandum, dated March 13, 2013, activities 

should designate the Deciding Official. The designated Deciding Official will be no lower than a 

local Installation Commander, senior civilian or 

equivalent who would be in the best position to 

determine the fair and equitable application of the 

furlough. Deciding Official responsibilities may 

not be further delegated.

S.A. 37. The Board found that the memorandum contemplated that Deciding Official authority could be delegated 

several times, but to an official “no lower than a local 

Installation Commander, senior civilian or equivalent.” 

We discern no error in the Board’s interpretation. Substantial evidence also supports the Board’s determination 

that Col. Sanborn was no lower than a “local Installation 

Commander.” 

Ms. Calhoun states that she was deprived of a “meaningful reply” because Col. Sanborn lacked the authority to 

review and act on her budget proposals.2 The Board 

found that Col. Sanborn’s authority as a deciding official 

 

2 The record reflects that Ms. Calhoun’s proposals 

were ultimately considered on the merits by the ACC on 

August 27, 2013. The ACC recommended no action on the 

proposal. S.A. 111.
CALHOUN v. ARMY 7

was limited to determining whether Ms. Calhoun was

within one of the DOD prescribed categories of exempted 

employees and whether a reduction in her furlough hours 

was necessary to the agency’s mission. While a deciding 

official must possess authority to take or recommend 

action, due process does not require “unfettered discretion 

to take any action he or she believes is appropriate” or 

require “consider[ation of] alternatives that are prohibited, impracticable, or outside of management’s purview.” 

Rodgers v. Dep’t of the Navy, 2015 M.S.P.B. 45 ¶6 (2015). 

Here the authority of the deciding official was commensurate with the nature of the furlough decisions.

Ms. Calhoun states that her Board panel was improperly constituted because it was composed of only two 

members, and that this contravened 5 C.F.R. § 1200.3(d) 

and 5 U.S.C. § 1201. Contrary to Ms. Calhoun’s assertion, 

the regulations contemplate that a Board may be composed of two members. See 5 C.F.R. 1200.3(e) (“This 

section applies only when at least two Board members are 

in office.”). Two-member Board panels may issue final 

decisions when both members are in agreement. 5 C.F.R. 

§ 1200.3(b)–(d). No procedural error or due process violation has been shown in the implementation and review of 

the furlough.

Ms. Calhoun makes several other arguments on appeal, including that the implementation of the furloughs 

violated the non-delegation doctrine and separation of 

powers principles; that the furloughs amount to a bill of 

attainder; that the oral reply official was not properly 

designated; and that her written reply was a protected 

whistleblowing disclosure. No merit accompanies any of 

these arguments.

CONCLUSION

We discern no reversible error in the Board’s rulings 

that the furlough of Ms. Calhoun was in accordance with 
8 CALHOUN v. ARMY

law and implemented without procedural error or due 

process violation.

AFFIRMED

No costs.