UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

TRACY A. ALLRED, 1

Appellant,

v.

DEPARTMENT OF THE ARMY,

Agency.

DOCKET NUMBER

DC-0752-13-3062-I-1

DATE: June 11, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Tracy A. Allred, APO, APO/FPO Europe, pro se.

Bradley E. Eayrs, Fort Belvoir, Virginia, 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 

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

Command I v. Department of the Army, MSPB Docket No. DC-0752-14-0162-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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 

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 address the appellant’s claim of harmful procedural error 

and to supplement the administrative judge’s due process analysis regarding the 

deciding official’s decisional independence. Except as expressly modified by this 

Final Order, we AFFIRM the initial decision. 

BACKGROUND

¶2 The appellant filed a Board appeal, challenging the agency’s decision to 

furlough her for 6 days, and she requested a hearing. Initial Appeal File (IAF), 

Tab 1; see IAF, Tab 5 at 6-9 (agency time cards), 10-11 (furlough Standard Form 

50), 12-14 (notice of decision to furlough), 19-21 (notice of proposed furlough). 

The appellant was informed that her appeal was consolidated with the appeals of 

similarly situated employees. Medical Command I v. Department of the Army,

MSPB Docket No. DC-0752-14-0162-I-1, Consolidated Appeal File (CAF), Tab 

1. The appellant alleged that the agency’s action constituted harmful procedural 

error and a violation of due process. See, e.g., IAF, Tabs 4, 6, 10. The appellant 

subsequently waived her right to a hearing. See IAF, Tab 9. 

¶3 The administrative judge issued an initial decision in which she affirmed 

the furlough actions. CAF, Tab 14, Initial Decision (ID). The administrative 
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judge found that the Department of Defense (DOD) faced a lack of funds and that 

the furloughs were a reasonable management solution to this problem. See ID at 

4-5. She further found that the furloughs promoted the efficiency of the service 

and that the agency determined which attorneys to furlough in a fair and even 

manner. See ID at 5. The administrative judge acknowledged the appellants’ 

assertions that the deciding official did not have authority to furlough them 

because the authority was retained at a higher level and that the deciding official 

did not have the authority to reach a decision different than the action stated in 

the proposal notice. See ID at 3. The administrative judge analyzed these 

assertions as a violation of due process, and she concluded that: (1) the 

appellants received meaningful due process; (2) the delegated deciding official 

had authority to furlough the appellants; (3) guidance from the Secretary of 

Defense “did not impinge on the ability of the deciding official in this case to 

exercise independent judgment regarding the sustaining of the proposed adverse 

action”; and (4) the fact that the deciding official did not except the appellants 

from the furlough does not mean that he did not have the authority to do so. ID at 

5-7. 

¶4 The appellant has filed a petition for review. Petition for Review (PFR) 

File, Tab 1. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 On review, the appellant contends that the administrative judge: 

(1) wrongly concluded that the deciding official, a Brigadier General, had the 

authority to furlough her because the delegation to him had been withdrawn and 

not re-delegated in a signed writing; (2) mischaracterized her due process 

argument and failed to address her assertion that the Brigadier General lacked the 

requisite independence, neutrality, and impartiality required of a deciding 

official; (3) ignored the parties’ stipulation that a shortage of funds did not cause 

her furlough; and (4) wrongly concluded that the funding levels of the Europe
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Regional Medical Command (ERMC), the appellant’s organization, were not 

relevant to the furlough decision. PFR File, Tab 1 at 4-7. 

¶6 Regarding the appellant’s assertion that the deciding official did not have 

the authority to furlough her, the appellant raised this assertion as a claim of 

harmful procedural error below, see CAF, Tab 5, but the administrative judge did 

not discuss it as such in the initial decision. We therefore modify the initial 

decision to analyze this issue as a claim of harmful procedural error, but we 

conclude that the appellant did not prove this affirmative defense. 

¶7 The relevant facts are largely undisputed. The Assistant Secretary of the 

Army delegated deciding official authority to a Lieutenant General who then 

delegated deciding official authority to the Brigadier General. See Department of 

the Army Administrative Record for FY 2013 Furlough Appeals (Army File), Tab 

9, available at http://www.mspb.gov/furloughappeals/army2013.htm; CAF, Tab 

3, Subtab 4j; see also CAF, Tab 13 at 11 (declaration). Subsequently, on June 5, 

2013, the Lieutenant General issued a memorandum in which she attempted to 

exempt eleven attorneys, including the appellant, from the furlough. See IAF, 

Tab 10 at 9. 3

 In this memorandum, the Lieutenant General stated that she was 

“retaining [her] authority as the Deciding Official for these specific personnel,” 

and she explained that she was “exempting these employees in [her] role as 

Deciding Official . . . under authority given [to her] by the Secretary of the 

Army.” Id. The Lieutenant General subsequently stated, in a declaration made 

under penalty of perjury, that she was informed that, even as the deciding official, 

she was not authorized to exempt these attorneys until after providing notice and 

considering their responses. See CAF, Tab 13 at 11-12. The Lieutenant General 

therefore directed her Chief of Staff to rescind the June 5, 2013 memorandum. 

See id. The Lieutenant General stated in her declaration that after she rescinded 

 3 Because the appellant’s petition for review only discusses the June 5, 2013 

memorandum, we do not discuss the Lieutenant General’s earlier attempt to exempt 

these attorneys. See, e.g., CAF, Tab 13 at 11. 
5

the June 5, 2013 memorandum, she “decided to allow [the] commanders that [she] 

had designated as deciding officials to take whatever actions they felt appropriate 

in deciding whether to exempt these attorneys from the furlough” and that she 

“took no further actions regarding the possible exemption of [the] attorneys.” Id.

at 12. On July 1, 2013, the Brigadier General informed the appellant that she 

would be furloughed. See IAF, Tab 5 at 12-14. There is no evidence in the 

record that the Lieutenant General subsequently played any role in the agency’s 

decision to furlough the appellant.

¶8 The record reflects that “[a]ny designation as a Deciding Official and 

re-delegation of the requisite authorities will take effect only when it is in writing 

and signed by the designating official.” Army File, Tab 9 at 65. The parties 

stipulated that the Lieutenant General’s June 5, 2013 memorandum was never 

rescinded in writing. See IAF, Tab 10 at 11. We understand the appellant’s claim 

of error to be that the Lieutenant General failed to re-delegate in writing deciding 

official authority to the Brigadier General after she issued the June 5, 2013 

memorandum and before he issued the decision on the appellant’s furlough. See, 

e.g., id. at 6. Based on our review of the record, the appellant has not persuaded 

us that any such error occurred. 

¶9 Only if the delegated deciding official authority to the Brigadier General 

had been withdrawn would there be a need for a written re-delegation of this 

authority. There is no evidence, however, that the Lieutenant General intended 

the June 5, 2013 memorandum to constitute withdrawal of any deciding official 

authority that she previously had delegated to the Brigadier General. The 

memorandum itself does not state that any delegated deciding official authority 

was being withdrawn. See id. at 9. Moreover, the Lieutenant General stated in 

her declaration that “[i]t was not [her] intent to withdraw any authority that [she] 

had delegated to any of [her] subordinate commanders” in the June 5, 2013 

memorandum, and she explained that if she wanted to withdraw that authority, 

she “would have specifically stated that [she] was withdrawing the authority from 
6

the individual commanders.” CAF, Tab 13 at 12. She further declared that 

“[e]ach commander who was designated as a deciding official . . . continued to be 

authorized to act as a deciding official throughout the administrative furlough 

process.” Id. The appellant offers no persuasive evidence to challenge the 

Lieutenant General’s statements in this regard, and we conclude that the June 5, 

2013 memorandum did not constitute a withdrawal of the deciding official 

authority that had been delegated to the Brigadier General. In the absence of any 

withdrawal of the delegated deciding official authority to the Brigadier General, 

there was no need for a written re-delegation of this authority, and, thus, there 

was no error.

¶10 Even if we assumed for the purposes of our analysis that the June 5, 2013 

memorandum constituted a withdrawal of the deciding official authority that had 

been delegated to the Brigadier General, and that the re-delegation of such 

authority was never made in writing, contrary to agency procedures, the appellant 

must still prove that the agency’s error was harmful. An agency error is harmful 

only where the record shows that the procedural 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. Stephen v. Department of the Air 

Force, 47 M.S.P.R. 672, 681, 685 (1991). 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. Pumphrey v. Department 

of Defense, 122 M.S.P.R. 186, ¶ 10 (2015). 

¶11 Although the nature of the harm asserted by the appellant is unclear, she

appears to content on review that she would have been exempted from the 

furlough were it not for the agency’s error in failing to re-delegate in writing 

deciding official authority to the Brigadier General. See PFR File, Tab 1 at 5 

(arguing that “the only person with authority to furlough [the] Appellant was [the 

Lieutenant General], and she exercised that authority to exempt [the] Appellant 
7

from the furlough”). The appellant has not proven that she was harmed by this 

alleged agency error. 

¶12 The appellant’s apparent contention that she would have been exempted 

absent the agency’s error is at best speculative, and the Board has held that such 

speculation does not constitute harm. See, e.g., Defense Intelligence Agency v. 

Department of Defense, 2015 MSPB 35, ¶¶ 13-15 (concluding that, even if the 

agency’s instruction required that the proposing and deciding officials be in the 

appellant’s supervisory chain, the appellant’s speculation that the attorneys in his 

supervisory chain “may well have worked to exempt” him from the furlough had 

they been made aware of certain information did not meet his burden of proving 

that the agency’s failure to assign the appropriate proposing and deciding 

officials was likely to have caused the agency to reach a different decision on the 

proposed furlough action); Pumphrey, 122 M.S.P.R. 186, ¶¶ 9-11 (even if the 

agency should have granted the appellant’s requests for official time and an 

extension of time to reply to the proposal notice, the appellant’s speculation was 

insufficient to meet his burden of proving harm).

¶13 Regarding the appellant’s assertion that the Brigadier General did not have 

the requisite decisional independence, we modify the initial decision to 

supplement the administrative judge’s due process analysis, but we conclude that 

the appellant did not prove that the agency violated her due process rights.

¶14 The Board considered and rejected a similar argument regarding decisional 

independence in Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶¶ 4, 6, 9 

(2014), which was issued after the initial decision in this matter was issued. In 

Kelly, the Board noted that the deciding official provided a declaration made 

under penalty of perjury, which: (1) explained that he carefully reviewed each 

individual’s submission, the agency’s documents relied upon in issuing the 

proposal notice, any supporting documents submitted by the appellants, and the 

reply official’s recommendation; (2) stated that he “made an individual 

determination if the proposed action stated any basis for an exemption and issued 
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a decision specifying the basis for [his] determination”; and (3) asserted that he 

had “authority to individually exempt an employee if they [sic] met an 

exemption.” Id., ¶ 9. Based on this evidence, the Board concluded that the 

agency’s procedures satisfied the requirements of due process. Id.

¶15 The record in this matter contains a similar declaration from the Brigadier 

General, which stated, in relevant part:

I considered any and all submissions made to me in response to the 

proposed notice of furlough. I had the full authority to implement, 

mitigate, or rescind the furlough for each. I never felt any pressure 

from my higher headquarters . . . or leaders to furlough employees. 

I exercised sole authority over the decisions to furlough. 

. . . 

I believed that I had full latitude to take action and that the matter 

was directed to the Regional Medical Center . . . level for 

consideration and action. Had I thought it was appropriate, I had the 

option to implement, mitigate, rescind[, ]and later recall personnel 

from furlough. . . .[T]he ERMC Command Judge Advocate[] did seek 

exemptions on his subordinate’s behalf; however, I did not agree 

with his recommendation, which was within my authority as the 

Deciding Official.

CAF, Tab 9 at 19-20. Based on this evidence, we find that the agency’s 

procedures satisfied due process, see Kelly, 121 M.S.P.R. 408, ¶ 9, and the 

appellant has not proven her assertion of a due process violation. 

¶16 Finally, we understand the appellant’s arguments regarding ERMC funding 

to challenge the administrative judge’s conclusion that the agency had a lack of 

funds and that the furloughs met the efficiency of the service. See, e.g., PFR File, 

Tab 1 at 6 (“If no lack of funding was foreseen [at ERMC] this necessarily is also 

evidence that higher units and commands, to include the [DOD], also did not have 

a lack of funds necessitating the appellant’s furlough.”). The appellant correctly 

asserts on review that the administrative judge did not mention in the initial 

decision that the parties stipulated that the ERMC “did not experience or foresee 

a deficit or lack of funds necessitating” the appellant’s furlough. PFR File, Tab 1 

at 6; see ID; see also IAF, Tab 10 at 11 (stipulation). However, an administrative 
9

judge’s failure to mention all of the evidence of record does not mean that she did 

not consider it in reaching her 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). 

¶17 Even if we consider the parties’ stipulation and the appellant’s arguments 

regarding ERMC funding on review, a different outcome is not warranted. In Yee 

v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014), the Board held that, 

even though the appellants alleged that there was adequate funding in the Navy to 

avoid the furloughs, it was reasonable for DOD to consider its budget situation 

holistically, rather than isolating each individual military department’s situation 

in making furlough decisions. Similarly, here, even if the ERMC had adequate 

funding to avoid the appellant’s furlough, it was reasonable for DOD to consider 

its budget situation holistically, rather than isolating the situation of each 

individual Army organization or component. See id.; see also Einboden v. 

Department of the Navy, 122 M.S.P.R. 302, ¶ 15 (2015). The appellant has not 

provided any evidence that the administrative judge erred when she concluded

that DOD faced a lack of funds or that the appellant’s furlough was a reasonable 

management solution to this problem. We therefore affirm the administrative 

judge’s finding that the furloughs promoted the efficiency of the service. 

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 

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
10

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 appeal to 

the Court of Appeals for the Federal Circuit, you may visit our website 

at http://www.mspb.gov/probono for information regarding pro bono 

representation for Merit Systems Protection Board appellants before the Federal 

Circuit. 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. 
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FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board