UNITED STATES OF AME RICA MERIT SYSTEMS PROTEC TION BOARD

THADDEUS L. WALLACE, 1 Appellant,

v. DEPARTMENT OF THE AI R FORCE, Agency. DOCKET NUMBER AT

- 0752

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- 4278

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- 1

DATE: June 4, 2015



### THIS FINAL ORDER IS NONPRECEDENTIAL 2
Joshua Klinger , Esquire, Denver, Colorado, for the appellant. Anthony Coggin , Esquire, Eglin Air Force Base , Florida, 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 agency’s furlough decision . Generally, we grant petitions such as this one only when: the initial decision contains erroneous findings of material

1 Pursuant to 5 C.F.R. § 1201.36 (a), this appeal was part of a consolidation. Eglin Air Force Base, Group 2 v. Department of the Air Forc e , MSPB Docket No. AT

- 0752

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- 0303

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2 A nonprecedential order is one that the Board has determined does not add significantly to the body of MSPB case law. Parties may cite nonprecedential orders, but such orders have no precedential value; the Board and administrative judges are not required to follow or distinguish them in any future decisions.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 signific antly contributing to the Board’ s case law. See 5 C.F.R. § 1201.117 (c).2
fact; the initial decision is based on an erroneous interpretation of statute or regulat ion 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 erro r 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 pe tition for review and AFFIRM the initial decision, which is now the Board’s final decision. 5 C.F.R. § 1201.113 (b).

BACKGROUND ¶2 On or about May 28, 2013, the agency proposed to furlough the appellant,

a n Electronics Technician , for no more than 11 workdays due to “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 1 March 13.” Initial Appeal File (IAF), Tab 1 at 10

. The notice identified a website where the material support ing the p roposed furlough could be view ed and stated that in the alternative the appellant could contact his local civilian personnel section to review the material

. Id. at 11. The notice also stated

“ [ t ] o arrange for an oral reply or review the supporting material s, please contact the individuals listed below” and included a phone number and email address of a contact person

. Id. The notice stated that the app ellant would be allowed up to 4 hours of official time to review the supporting material , seek assistance, prepare a reply, secure affidavits and statements, consider appropr iate courses of action, and make a response

. Id. The appellant provided both a written and an oral repl y3
to the notice of proposed furlough. IAF, Tab 4 at 25

- 26, Tab 6 at 6

- 8

. B y written notice dated June 24 , 2013 , the agency’s deciding official informed the appellant that he would be furloughed as outlined in the notice of proposed furlough

. IAF, Tab 1 at 12

- 13. The record includes evidence reflecting the appellant’ s furlough

on 6 discontinuous days between July 8, 2013, and September 30, 2013. IAF, Tab 4 at 4, 8, Tab 5 at 8

- 15. ¶3 The appellant filed a Board appeal challenging the agency’s action, IAF, Tab 1, and the administrative judge consolidated his appeal with the appeals of similarly situated employees, Elg in Air Force Base, Group 2 v. Department of the Air Force , MSPB Docket No. AT

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- 1, Consolidated Appeal File (CAF), Tab 1. After holding a hearing, the administrative judge issued an initial decision affirming the agency’s furlough actions. C AF, Tab 10, Initial Decision (ID). The administrative judge found , among other things, that the furlough was implemented in accordance with due process requirements and that the appellant had not proven that the agency committed a harmful procedural error . ID at 8

- 12. ¶4 The appellant has filed a petition for review. Petition for Review (PFR) File, Tab 1. The agency has filed a response in opposition to the appellant’s petition. PFR File, Tab 3. The appellant has filed a reply to the agency’s response. PFR File, Tab 4.

DISCUSSION OF ARGUME NTS ON REVIEW ¶5 The appellant raises a single issue on review: whether the agency denied him due process by not providing him with access to the material supporting the proposed f urlough. PFR File, Tab 1 at 6

- 10

. 3 Th e administrative judge considered these same arguments below , finding that the appellant failed to prov e that the agency denied him due process . ID at 8

- 11. Specifically, the

3 The appellant does not challenge, and we discern no reason to disturb, the administrative judge’s findings that the agency’s furlough was a reasonable management solution to the shortage of funds caused by sequestration, promoted the efficiency of the service , and was applied in a fair and even mann er. ID at 5

- 7, 14

- 17.4
administrative judge found that the record did not support the appellant ’ s claim that he was denied access to the relied upon materials because he was given adequate instruction on how to access them. ID at 9 & n.7. The administrative judge further analyzed this claim to determine if the appel lant proved that the agency commi tted harmful procedural error. ID at 11

- 12. The administrative judge found that , because the agency made the supporting information available online , the appellant failed to prove that the agency committed harmful error by
not also providing him with a c opy of the material . ID at 12. In his petition for review, the appellant argues that the administ rative judge erred in analyzing the due process claim. PFR File, Tab 1 at 9

- 10. T he appellant also argues that the

a dministrative judge erred by applying t he harmful error analysis to his claim that the ag ency failed to provide him the material it relied on in making its fu rlough decision

. Id. at 6. The appellant was provided with the required due process. ¶6 Prior notice and an opportunity to respon d are the fundament al due process requirements before a tenured public employee is furloughed

. Ronso v. Department of the Navy , 122 M.S.P.R. 391 , ¶ 13 (2015) (discussing due proc ess in the context of a furlough appeal). T he appellant argues that the administrative judge erred by not analyzing his due process claim independently from the issue of harmful procedural error . PFR File, Tab 1 at 6. The administrative judge considered the appellant’s due process claim and found that the agency satisfied the requirements of due process by provi ding him with advance written notice of the proposed furlough , access to the material supporting the agency’s proposed furl ough , and an opportunity to provide both wr itten and oral responses

. ID at 9

. We find no error in the administrative judge’s analysis of the due process claim

. ¶7 The appellant alleges that the agency’s website containing the supporting materials was difficult t o navigate , but the agency also stated in the notice of proposed furlough that he could access the material by contacting his local civilian personnel section. IAF, Tab 1 at 11. T he Chief of Employee Relations in5
the civilian personnel section was not aw are of any employee contacting the section in order to review the material . CAF, Tab 7 at 8. The appellant testified that he did not contact the civilian personnel section to access the material. Hearing Compact Disc ( HCD ). Rather, the appellant inform ed the designated reply official t hat he could not find a link on the website provided for “supporting material .” IAF, Tab 8 at 7; see IAF, Tab 4 at 21. The next day, that official told him t hat the supporting material could be found under the link “Administrative Record.” IAF, Tab 8 at 16

. The appellant admitted during the hearing that when he used the “Administrative Record” link he was able to access the material

. HCD. The appellant replied orally to the proposed furlou gh on June 17, 2013. IAF, Tab 4 at 25

- 26 , Tab 5 at 4 . The appellant did not review the material prior to his oral r eply. HCD. The agency may have been able to make the material easier to a ccess, but its failure to do so does not rise to the leve l of a due process violation. The material relied on in proposing the furlough was available on the website. A copy of the materials also was available in the civilian personnel section for review. Based on the foregoing, we find no basis to dist urb the administrative judge’s finding that the agency provided the appellant with due process. The agency did not commit harmful procedural error in processing the appellant’s furlough. ¶8 A notice of proposed furlough must inform the employee of his or her right to review the material that is relied on to support the reasons for the furlough

. Salo v. Department of Defense , 122 M.S.P.R. 417 , ¶ 9 (2015) ; 5 C.F.R. § 752.404 (b). Although we have found no constitutional violation, we must still consider whether the agency committed harmful procedural error by failing to follow the regulatory procedures set fo rth at 5 C.F.R. § 752.404 (b)

. See Stone v. Federal Deposit Insurance Corporation , 179 F.3d 1368 , 1378 (Fed. Cir. 1999) (stating that in addition to the protections afforded by the Constitution, public employees also are entitled to whatever other procedural protections are afforded6
them by statute, regulation , or agency procedure) ; Pumphrey v. Department of Defense , 122 M.S.P.R. 186 , ¶ 9 (2015). The appellant was told that he could access the material supporting the agency’s furlough decision on the website “http://myPers.af.mil.” IAF, Tab 1 at 11. The record includes a printout of this website that contains multiple links both related and unrelated to the furlough. IAF, Tab 9, Hearing Exhibit 1. The appellant testified that he had difficul ty navigating the website. HCD. He further testified that he clicked on various links looking for the material and some of the links would not load immediately

. He also testified that the proposal notice referenced “supporting material” but there was no link on the website specifically labeled “supporting material” on the website. He testified , moreover, that he called the phone number provided in the proposal notice for questions about accessing the supporting material, but the phone number was incorrect. ¶9 We agree with the administrative judge’s finding that the appellant failed to prove that the agency committed harmful procedural error. Harmful error is a procedural error by the agency 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. See 5 C.F.R. § 1201.56 (c)(3); see also Salter v. Department of the Treasury , 92 M.S.P.R. 355 , ¶ 7 (2002). To show harmful error, an appellant must prove that any procedural error substantially prejudiced his rights by possibly affecting the agency’s decision. Salter , 92 M.S.P.R. 355 , ¶ 7. ¶10 Making suppor ting material available on a website can satisfy the agency’s obligation under 5 C.F.R. § 752.404 (b)

. See Salo , 122 M.S.P.R. 417 , ¶ 9 (finding the agency satisfied its obligation under 5 C.F.R. § 752.404 (b) to make the material relied on to support the reasons for a furlough available for review when the proposal notice advised the employee how to view the material at an agency website); see also Pumphre y , 122 M.S.P.R. 186 , ¶ 7 n.2 (when the notice of proposed furlough informed the employee how to view the supporting material on

an agency website or a t a designated Furlough Reading Room, th e appellant’s7
vague statement that he was not given predecisional access to the material relied upon in the notice of proposed furlough did not support a finding of harmful procedural error). ¶11 The appellant has not shown how receiving a printed copy of th e material supporting the proposed furlough would have changed the content of his replies and caused the agency to reach a different conclusion

. The appellant had not reviewed the material prior to the hearing and , when asked by the administrative judge, could not testify as to what in the material he would have addressed in his responses to the proposed furlough that may have changed the outcome. HCD

. Again on review the appellant has made general arguments about the agency’s obligation to make the material available for review but has not shown how he actually was harmed by the procedures the agency u s ed in implementing the furlough. See Pumphrey , 122 M.S.P.R. 186 , ¶¶ 10

- 11 ( to show harmful error , an appellant must provide proof of actual harm resulting from an agency’s procedures)

. Therefore, we agree with the administrative judge’s find ing that the appellant failed to prove that the agency committed a harmful error.

NOTICE TO THE APPELL ANT 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 deadline8
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/appeal s/uscode.htm

. Additional inform ation is available at the court’ s website, www.cafc.uscourts.gov . Of parti cular relevance is the court’s “ Guide for Pro Se Petitioners and Appellants,” whic h 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 acce pt representation in a given case.

FOR THE BOARD:

Washington, D.C. ______________________________ William D. Spencer Clerk of the Board