UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

ROBERT CORMACK,

1

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

PH-0752-13-2764-I-1

DATE: August 20, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Robert Cormack, Esquire, Lakehurst, New Jersey, pro se.

Anthony M. Dowdle, Patuxent River, Maryland, for the agency.

David S. Castro and Ellen McArthur, Lakehurst, New Jersey, 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 his furlough for 6 days. Generally, we grant petitions such as this one 

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

HR 3 v. Department of the Navy, MSPB Docket No. PH-0752-14-0364-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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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 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 and AFFIRM 

the initial decision, which is now the Board’s final decision. 5 C.F.R. 

§ 1201.113(b). 

¶2 The agency issued a decision notice furloughing the appellant for no more 

than 11 workdays (later reduced to 6 days) from his GS-13 Electrical Engineer 

position. Initial Appeal File, Tab 1 at 7-9. The furlough was based on serious 

budgetary challenges facing the Department of Defense (DOD), including the 

sequester that began on March 1, 2013. The appellant filed an appeal, which the 

administrative judge consolidated with the appeals of similarly situated 

employees. MSPB Docket No. PH-0752-14-0364-I-1, Consolidated Appeal File 

(CAF), Tab 2. After holding the requested hearing, the administrative judge 

affirmed the furlough actions. CAF, Tab 19, Initial Decision (ID) at 2, 12.

¶3 In his petition for review, the appellant argues that his employer is the 

Naval Air Systems Command (NAVAIR), not the Department of the Navy (Navy 

or the agency) or the DOD, and that NAVAIR had sufficient funds to avoid a 

furlough. Petition for Review (PFR) File, Tab 1 at 5-6. In Yee v. Department of 

the Navy, 121 M.S.P.R. 686, ¶ 14 (2014), the Board found that, although the Navy 

is separately organized under the Secretary of the Navy, it operates under the 
3

authority, direction, and control of the Secretary of Defense so that even though 

the Navy had adequate funds to avoid a furlough, the DOD was entitled to 

consider its budget situation holistically. Similarly, components of the Navy, 

including NAVAIR, are subordinate to the Secretary of the Navy and thereby are 

necessarily subordinate to the Secretary of Defense. Thus, the administrative 

judge properly found that the agency established that the DOD faced a lack of 

funds and that the furlough actions, including those in the Navy and in NAVAIR 

in particular, were a reasonable management solution to the problem. ID 

at 10-11; Yee, 121 M.S.P.R. 686, ¶ 14.

¶4 The appellant further asserts that any cost savings achieved by furloughing 

NAVAIR employees could not be legally transferred to components needing 

additional funds, so the furlough of NAVAIR employees did not meet the 

efficiency of the service standard. PFR File, Tab 1 at 6-7. Below, the appellant 

identified a statement in the agency’s Master Agency Narrative that discussed the 

agency’s efforts to reallocate funds through the mechanism of reprogramming 

and, in particular, the agency’s statement that it had used “almost all” of its 

transfer authority for that fiscal year. See Department of the Navy Administrative 

Record for FY 2013 Furlough Appeals, Master Agency Narrative, Tab 1a at 13, 

available at http://www.mspb.gov/furloughappeals/navy2013.htm. The 

appellant’s argument amounts to an attempt to focus the Board’s inquiry on 

whether the agency has shown that the furlough promoted the efficiency of 

NAVAIR. Under Yee, however, the focus is properly on the efficiency of the 

service as a whole, and not on the efficiency of isolated components of the DOD. 

See Yee, 121 M.S.P.R. 686, ¶ 14.

¶5 Accordingly, we affirm the initial decision.
4

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 

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 
5

provided by any attorney nor warrants that any attorney will accept representation 

in a given case.

FOR THE BOARD:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board