UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

2015 MSPB 35

Docket Nos. DC-0752-14-0632-I-1

Defense Intelligence Agency, 1

Appellant,

v.

Department of Defense,

Agency.

April 30, 2015

Paul P. Holden, Jr., Clifton, Virginia, pro se.

Kenneth F. Miller, Nokesville, Virginia, pro se.

John A. Fraser, III, Washington, D.C., for the agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

OPINION AND ORDER

¶1 The appellants have filed petitions for review of the initial decision, which 

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

that the petitioners have not established a basis under 5 C.F.R. § 1201.115 for 

 

1 Our findings in this Opinion and Order apply only to Appellant Paul P. Holden, Jr., 

MSPB Docket No. DC-0752-13-6407-I-1, and Appellant Kenneth F. Miller, MSPB 

Docket No. DC-0752-13-6613-I-1, not to the other appellants who previously were part 

of the consolidation in this case but did not file a petition for review. See Dye v. 

Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).
2

granting their petitions for review. We therefore DENY the petitions for review 

and AFFIRM the initial decision.

BACKGROUND

¶2 On June 3, 2013, the agency informed the appellants, Assistant General 

Counsels in the Office of General Counsel (OGC) at the Defense Intelligence 

Agency (DIA), that it proposed to furlough them for no more than 11 workdays 

due to the “extraordinary and serious budgetary challenges facing the Department 

of Defense (DOD) for the remainder of Fiscal Year (FY) 2013, the most serious 

of which is the sequester that began on March 1, 2013,” i.e., across-the-board 

reductions to federal budgetary resources caused by the Budget Control Act of 

2011, as amended by the American Taxpayer Relief Act of 2012. Consolidated 

Appeal File (CAF), Tab 6 at 45-47; Holden v. Department of Defense, MSPB 

Docket No. DC-0752-13-6407-I-1, Initial Appeal File (Holden IAF), Tab 4 at 4, 

17; Miller v. Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1,

Initial Appeal File (Miller IAF), Tab 2 at 4, 20. The agency afforded the 

appellants an opportunity to respond orally and in writing to the proposal notice, 

to review the supporting material, and to furnish affidavits or supporting 

documentary evidence in their answers. CAF, Tab 6 at 46. 

¶3 In subsequent memoranda, the agency’s deciding official determined that 

the reasons for the proposed furlough remained valid, the procedures and 

conditions related to the furlough were determined to be the most equitable means 

of implementing the furlough, and the appellants would be required to be on a 

discontinuous furlough for no more than 11 workdays during the period from 

July 8, 2013, through September 30, 2013. Holden IAF, Tab 4 at 18; Miller IAF, 

Tab 2 at 21. The appellants ultimately served 6 workdays on furlough. Holden 

IAF, Tab 4 at 9; Miller IAF, Tab 2 at 15. 

¶4 The appellants filed individual appeals challenging the furlough actions, 

which the Board consolidated in this case with the related appeals of other DIA
3

employees. CAF, Tab 1 at 1, 15. Among other things, the appellants contested 

the manner in which the agency implemented an exception to the furlough related 

to employees funded through the National Intelligence Program (NIP). CAF, 

Tab 14 at 3-4. In planning the furlough, the agency recognized only limited 

exceptions, which included when furloughing would not reduce the DOD budget. 

CAF, Tab 6 at 50-53. One exception applied to employees who were funded with 

NIP funds. Id. at 48, 52. In contrast, any employees who were funded with 

Military Intelligence Program (MIP) funds would be subject to furlough. Id.

at 52. The agency explained that it exempted employees who were funded with 

NIP funds from the furlough because they were paid by the Office of the Director 

of National Intelligence and not with DOD funds. Id. at 21-22 (declaration of the 

Chief of the Employee Benefits and Services Division, DIA’s Office of Human 

Resources), 28-30 (declaration of DIA’s Chief Financial Officer). Conversely, 

employees who were funded with MIP funds remained subject to furlough 

because DOD, which was facing major budgetary shortfalls in its FY 2013 budget 

due to sequestration, was responsible for paying those employees. Id. at 28-29 

(declaration of DIA’s Chief Financial Officer), 35 (declaration of the Under 

Secretary of Defense (Comptroller)/Chief Financial Officer in DOD). 

Accordingly, while NIP-funded employees and MIP-funded employees may have 

been performing in the same or similar positions, the agency maintained that it

was the source of funding for their positions, rather than the duties of the 

positions themselves, that differentiated them for furlough purposes. Id. at 29-31 

(declaration of DIA’s Chief Financial Officer). The appellants argued, among 

other things, that the DIA billets were misaligned and did not correspond to 

actual duties, which resulted in disparate treatment and the wrong employees 

being furloughed. CAF, Tab 14 at 3-4.

¶5 In an initial decision based on the written record, the administrative judge 

affirmed the furlough actions. CAF, Tab 19, Initial Decision (ID) at 1. She 

found that the agency’s furlough was a reasonable management solution to the 
4

shortage of funds caused by sequestration and that the agency established that its 

furlough actions were taken for the efficiency of the service. ID at 1-5, 8. In so 

finding, the administrative judge rejected the appellants’ arguments that the 

agency did not conduct the furlough in a fair and even manner because it 

exempted NIP-funded employees from the furlough while it did not exempt 

employees, like the appellants, who were MIP-funded. ID at 4-5; Holden IAF, 

Tab 5 at 5-11; Miller IAF, Tab 4 at 4-8. The administrative judge also found 

unpersuasive the appellants’ arguments that their billets were misaligned under 

the MIP. ID at 4-5; Holden IAF, Tab 5 at 5-7; Miller IAF, Tab 4 at 4-8. She 

further found that Appellant Miller failed to prove his claims that the agency 

violated his due process rights and committed harmful procedural error when it 

took the furlough action. ID at 5-8; Miller IAF, Tab 1 at 4. 

¶6 The appellants have filed separate petitions for review of the initial 

decision. Holden v. Department of Defense, MSPB Docket No. DC-0752-13-

6407-I-1, Petition for Review File (Holden PFR File), Tab 1; Miller v. 

Department of Defense, MSPB Docket No. DC-0752-13-6613-I-1, Petition for 

Review File (Miller PFR File), Tab 1. On review, the appellants primarily 

challenge the administrative judge’s findings concerning the equity of the 

furlough as it applied to their group in OGC, which included both NIP-funded 

and MIP-funded attorneys. Holden PFR File, Tab 1 at 5-8; Miller PFR File, 

Tab 1 at 4-6. The agency has filed responses in opposition to the petitions for 

review. Holden PFR File, Tab 2; Miller PFR File, Tab 2.

ANALYSIS

¶7 The Board has found that an agency meets its burden of proving that a 

furlough promotes the efficiency of the service 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 
5

Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). A “fair and even manner” means that 

the agency applied the adverse action furlough uniformly and consistently. Id. 

This does not mean that the agency is required to apply the furlough in such a 

way as to satisfy the Board’s sense of equity. Id. Rather, it means that the 

agency is required to treat similar employees similarly and to justify any 

deviations with legitimate management reasons. Id. 

¶8 The appellants argue that the agency failed to apply its determination as to 

which employees to furlough in a “fair and even manner.” Holden PFR File, 

Tab 1 at 6; Miller PFR File, Tab 1 at 4. Specifically, the appellants argue that 

they were unfairly subjected to the furlough because their positions were 

misaligned in MIP-funded billets.

2

 Holden PFR File, Tab 1 at 6; Miller PFR File, 

Tab 1 at 5. Appellant Miller claims that certain employees in NIP-funded billets 

in his group in OGC were performing MIP functions while other employees in

MIP-funded billets, like the appellants, were performing NIP functions. Miller 

PFR File, Tab 1 at 5. Appellant Miller also argues that the agency unfairly 

implemented the furlough because it realigned two of the five attorneys in his 

group in OGC from MIP-funded billets to NIP-funded billets to exempt them 

from the furlough. See id. at 5-6. He further argues that, because the agency 

knew his billet was also misaligned in an MIP-funded billet, it similarly should 

have moved him to an NIP-funded billet to avoid the furlough. Id.

¶9 The administrative judge found unpersuasive the appellants’ misalignment 

arguments. ID at 4-5. In so finding, she determined that the two attorneys who 

 

2 Neither appellant disputes that the furlough was, in general, a reasonable management 

solution to the financial restrictions placed on the agency. Nor do the appellants claim 

that they should not have been subjected to the furlough because they occupied 

positions with NIP billets or otherwise met the agency’s criteria for an exception. Cf.

Dye, 121 M.S.P.R. 142, ¶ 10. Rather, their issue is with the agency’s failure to realign 

the billets, which they contend would have resulted in their being realigned to an NIP 

billet and thus they would have been exempted from the furlough. E.g., Holden PFR 

File, Tab 1 at 6; Miller PFR File, Tab 1 at 4-5.
6

the agency realigned prior to the furlough were in temporary billets at the time 

and had to be moved out of those billets prior to the furlough’s implementation. 

ID at 5. She also determined that Appellant Miller and the two other attorneys in 

their group who were in MIP-funded billets were not occupying temporary billets 

at the time and could not be realigned for that reason. ID at 5. As set forth 

below, we find that the record evidence supports the administrative judge’s 

findings. 

¶10 In a declaration submitted below, DIA’s Chief Financial Officer stated that 

the decision to align a billet to either the NIP or the MIP was made through 

negotiations between the offices of the Under Secretary of Defense for 

Intelligence and the Director of National Intelligence and that the decision 

typically was not made at the individual billet level. CAF, Tab 6 at 30. She 

indicated that the decision ultimately was submitted to the United States 

Congress and the President for their approval in an annual DOD appropriations 

bill. Id. A Management Analyst for DIA averred that the group of billets that 

included Appellant Miller’s and Appellant Holden’s billets was aligned to the 

MIP on August 3, 2008, well in advance of the FY 2013 furlough. Miller IAF, 

Tab 2 at 13-14 (declaration of DIA Management Analyst, J.C.). She also 

described that, during the planning of the furlough, there were discussions about 

whether the functions performed by the appellants would be better aligned to the 

NIP. Id. at 13. As a result of these discussions, DIA asked the Under Secretary 

of Defense for Intelligence to exempt from the furlough the appellants and the 

other attorney in the office who occupied an MIP-funded billet but he denied the 

request, stating that no furlough exemptions would be approved at that time to 

avoid unfair treatment. Id.

¶11 We find unavailing the appellants’ arguments concerning the misalignment

of their billets. In planning the furlough, the Secretary of Defense specifically 

directed the agency to furlough its employees who were funded with MIP funds. 

CAF, Tab 6 at 52. The record shows that the appellants’ billets at the time of the 
7

furlough were aligned to the MIP pursuant to an agreement, made years earlier, 

between the Under Secretary of Defense for Intelligence and the Director of 

National Intelligence. Id. at 13-14. Even if DIA believed that the appellants’ 

billets were misaligned to the MIP at the time of the furlough, there is no 

evidence in the record to suggest that any alleged misalignment of the attorneys’ 

billets in OGC was meant to target the appellants for personal reasons. See, e.g., 

In re Tinker AFSC/DP v. Department of the Air Force, 121 M.S.P.R. 385, ¶ 17

(2014) (stating that the efficiency of the service determination encompasses 

whether the agency used a furlough to target employees for personal reasons or 

attempted to exempt certain employees from the furlough without legitimate 

management reasons). Rather, the record reveals that the agency uniformly and 

consistently applied the furlough to its attorneys in OGC pursuant to its orders at 

the time. CAF, Tab 6 at 48-53; see Chandler, 120 M.S.P.R. 163, ¶ 8. Further, 

the appellants have not established that the agency was obligated to realign the 

billets as they propose under any applicable law or other authority. 3

 

¶12 Concerning Appellant Miller’s argument regarding the two attorneys whose 

billets were realigned prior to the furlough, DIA’s General Counsel indicated 

that, in preparing for the furlough, the agency learned that those employees were 

in temporary billets. Miller IAF, Tab 7 at 16 (declaration of DIA’s General 

Counsel). He stated that the Office of the Chief Financial Officer had directed, 

pursuant to a longstanding order from the Director of DOD, that all employees in 

temporary billets be moved into permanent billets in advance of the furlough. Id. 

To comply with the Director’s order, the two attorneys in temporary billets were 

realigned to two open permanent billets in the NIP. Id.; see Miller IAF, Tab 2

 

3 There has been no showing, for instance, that the agency failed to follow any 

applicable procedures in this regard, and thus the appellants’ arguments fail to the 

extent they could be construed as an attempt to show harmful error under 5 U.S.C. 

§ 7701(c)(2). See 5 C.F.R. § 1201.56(b)(1), (c)(3).
8

at 13 (declaration of DIA Management Analyst, J.C.). DIA’s General Counsel 

further explained that, because Appellant Miller occupied a permanent billet at 

the time, the agency had no basis to reassign him into another billet. Miller IAF, 

Tab 7 at 16. Therefore, we find that the agency has shown that it implemented 

the furlough in a fair and even manner. Specifically, it has shown that its 

decision to exempt the two attorneys in Appellant Miller’s group was based on a 

legitimate management reason, i.e., that their positions were NIP-funded, and that 

their realignment prior to the furlough was not based on personal reasons but on 

the fact that they were occupying temporary billets and needed to be realigned to 

permanent billets before the implementation of the furlough. See, e.g., In re 

Tinker AFSC/DP, 121 M.S.P.R. 385, ¶ 17. Accordingly, we find that Appellant 

Miller has set forth no basis to disturb the administrative judge’s findings in this 

regard.

¶13 Appellant Miller also challenges the administrative judge’s finding that he 

failed to prove that the agency committed harmful error by violating DOD

Instruction 1442.02.4

 Miller PFR File, Tab 1 at 6-8. 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 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). 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. Id.

 

4 On review, Appellant Miller does not challenge the administrative judge’s finding that 

he failed to prove that the agency violated his due process rights, and we discern no 

basis to disturb that finding. ID at 7-8.
9

¶14 DOD Instruction 1442.02 provides, among other things, that the proposing 

and deciding officials in an adverse action against a civilian attorney, such as 

Appellant Miller, shall be in the attorney’s supervisory chain. Miller IAF, Tab 7 

at 42 (DOD Instruction 1442.02, Enclosure 4, Paragraph 6d). Here, there is no 

dispute that the proposing and deciding officials were not in Appellant Miller’s 

supervisory chain. The administrative judge found no violation of the 

Instruction, however, because she found that the Instruction was inapplicable 

under the circumstances. ID at 5-6. She further found that, even if the agency 

was required to follow the Instruction, any error in its application was not 

harmful. ID at 6-7. Assuming arguendo that the agency committed procedural 

error in violation of DOD Instruction 1442.02, we agree with the administrative 

judge’s finding that Appellant Miller failed to prove that the error was harmful. 

ID at 6-7. 

¶15 According to Appellant Miller, his supervisory chain consisted of three 

civilian attorneys, including DIA’s General Counsel. Miller IAF, Tab 4 at 9. In 

his declaration submitted below, the General Counsel stated that he would have 

complied with the Secretary of Defense’s written order directing the furlough of 

civilian personnel in MIP-funded billets, like Appellant Miller, had he been the 

deciding official in the matter. Miller IAF, Tab 7 at 15. On review, Appellant 

Miller claims that the General Counsel’s conclusion is based on a 

misunderstanding of the NIP and MIP realignment situation. Miller PFR File, 

Tab 1 at 7-8. He claims that all three attorneys in his supervisory chain 

“consistently expressed strong support for [his] position, and as such, had they 

been aware of [the Under Secretary of Defense for Intelligence’s] willingness to 

realign certain NIP and MIP billets, they may well have worked to exempt [me] 

from the furlough.” Id. Appellant Miller’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 does not meet his burden of proving 

that the agency’s failure to assign the appropriate proposing and deciding 
10

officials under the circumstances was likely to have caused the agency to reach a 

different decision on the proposed furlough action. See Pumphrey, 122 M.S.P.R. 

186, ¶ 11 (finding that an appellant’s speculation is insufficient to establish 

harm). Accordingly, we find no basis to disturb the administrative judge’s 

finding that Appellant Miller failed to prove harmful procedural error. ID at 6-7.

¶16 Appellant Holden claims on review that the administrative judge abused 

her discretion when she failed to consider his prehearing submission and closing 

brief. Holden PFR File, Tab 1 at 4-5. It is well settled that administrative judges 

have broad discretion to regulate the proceedings before them, including the 

authority to rule on discovery motions and to impose sanctions as necessary to 

serve the ends of justice. See Guzman v. Department of Veterans 

Affairs, 114 M.S.P.R. 566, ¶ 12 (2010); see also 5 C.F.R. § 1201.43(a), (c). Here, 

the record shows that the administrative judge granted the agency’s motion to 

strike Appellant Holden’s prehearing submission as untimely filed, CAF, Tab 14 

at 1 n.1, and its motion to strike Appellant Holden’s closing brief because it 

included arguments already stricken from the record and because it raised new 

arguments not identified in the administrative judge’s previous order, CAF, Tab 

17 at 2. We find no abuse of discretion under the circumstances, as Appellant 

Holden failed to comply with the administrative judge’s explicit instructions. 

CAF, Tabs 9, 14, 17; see Ryan v. Department of the Air Force, 117 M.S.P.R. 362, 

¶ 5 (2012) (the Board ordinarily will not reverse an administrative judge’s rulings

regulating the proceedings absent an abuse of discretion); see also Guzman, 114

M.S.P.R. 566, ¶ 12 (the Board will not disturb an administrative judge’s 

determination to impose a sanction, unless it is shown that the administrative 

judge abused her discretion or that her erroneous ruling adversely affected a 

party’s substantive rights). In any event, as the administrative judge stated in the 

initial decision, the arguments raised by Appellant Holden in his prehearing 

submission and closing brief were the same arguments that Appellant Miller 

timely raised and which she found unpersuasive in the initial decision. ID at 8 
11

n.1. Because we affirm her findings on review, we find that Appellant Holden 

has not shown that any alleged abuse of discretion prejudiced his substantive 

rights. See Panter v. Department of the Air Force, 22 M.S.P.R. 281, 282 (1984) 

(an adjudicatory error that is not prejudicial to a party’s substantive rights 

provides no basis for the reversal of an initial decision).

¶17 Accordingly, we affirm the furlough actions. 

ORDER

¶18 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 
12

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 an appeal to 

the United States 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.

FOR THE BOARD:

______________________________

William D. Spencer

Clerk of the Board

Washington, D.C.