Filed: Jul. 15, 2014
Latest Update: Mar. 02, 2020
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 51 Docket No. DA-0752-14-0157-I-1 1 In Re Tinker AFSC/DP, Appellants, v. Department of the Air Force, Agency. July 15, 2014 Krista O. Harke, Harrah, Oklahoma; Nicoli D. Frazier, Oklahoma City, Oklahoma; Lynda J. Arce, Newalla, Oklahoma; Angela Lin Woods, Oklahoma City, Oklahoma; LaNeal S. Barger, Midwest City, Oklahoma; Sarah E. Walker, Edmond, Oklahoma; and Amy B. Noble, Oklahoma City, Oklahoma, pro se. Telin W. Ozier, Esquire, T
Summary: UNITED STATES OF AMERICA MERIT SYSTEMS PROTECTION BOARD 2014 MSPB 51 Docket No. DA-0752-14-0157-I-1 1 In Re Tinker AFSC/DP, Appellants, v. Department of the Air Force, Agency. July 15, 2014 Krista O. Harke, Harrah, Oklahoma; Nicoli D. Frazier, Oklahoma City, Oklahoma; Lynda J. Arce, Newalla, Oklahoma; Angela Lin Woods, Oklahoma City, Oklahoma; LaNeal S. Barger, Midwest City, Oklahoma; Sarah E. Walker, Edmond, Oklahoma; and Amy B. Noble, Oklahoma City, Oklahoma, pro se. Telin W. Ozier, Esquire, Ti..
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UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
2014 MSPB 51
Docket No. DA-0752-14-0157-I-1 1
In Re Tinker AFSC/DP,
Appellants,
v.
Department of the Air Force,
Agency.
July 15, 2014
Krista O. Harke, Harrah, Oklahoma; Nicoli D. Frazier, Oklahoma City,
Oklahoma; Lynda J. Arce, Newalla, Oklahoma; Angela Lin Woods,
Oklahoma City, Oklahoma; LaNeal S. Barger, Midwest City, Oklahoma;
Sarah E. Walker, Edmond, Oklahoma; and Amy B. Noble, Oklahoma
City, Oklahoma, pro se.
Telin W. Ozier, Esquire, Tinker Air Force Base, Oklahoma, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
OPINION AND ORDER
¶1 This appeal is before the Board on interlocutory appeal from the May 14,
2014 order of the administrative judge staying the proceedings and certifying for
1
The appellants that are included in this consolidation are set forth in Appendix A to
this Opinion and Order.
2
Board review her rulings that: (1) the agency’s decision not to furlough so-called
“safe haven” employees who were evacuated due to a natural disaster should be
analyzed as part of the agency’s burden of proving that its furlough
determinations were made in a fair and even manner; and (2) neither 5 U.S.C.
§ 5523 , nor the Office of Personnel Management’s regulations implementing
that provision, precluded the inclusion of “safe haven” employees in the agency-
wide furlough. For the reasons set forth below, we AFFIRM the administrative
judge’s ruling that the agency has the burden of proving that it applied its
determination as to which employees to furlough in a fair and even manner. We
also FIND that whether a statute or regulation precluded the agency from
furloughing “safe haven” employees is not determinative as to whether the
agency treated its employees in a fair and even manner. Accordingly, we
VACATE the stay order and RETURN the appeal to the regional office for
adjudication consistent with this Opinion and Order.
BACKGROUND
¶2 The agency issued decision notices furloughing the appellants for no more
than 11 workdays from their Equal Employment Specialist, Human Resources
Specialist, Human Resources Assistant, and Lead Management Analyst positions
based on 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.” E.g., Harke
v. Department of the Air Force, MSPB Docket No. DA-0752-13-1340-I-1 (Harke
Appeal File), Tab 1 at 8-14; Frazier v. Department of the Air Force, MSPB
Docket No. DA-0752-13-1386-I-1 (Frazier Appeal File), Tab 1 at 8-15; Woods v.
Department of the Air Force, MSPB Docket No. DA-0752-13-1789-I-1, Tab 1 at
8-13; Walker v. Department of the Air Force, MSPB Docket No.
3
DA-0752-13-2113-I-1, Tab 1 at 7-13. 2 The agency noted that the Budget Control
Act of 2011, as amended by the American Taxpayer Relief Act of 2012, made
across-the-board reductions to budgetary resources for the federal government,
and that DoD “must and will protect wartime operations funding for our troops in
harm’s way.” E.g., Harke Appeal File, Tab 1 at 11; Frazier Appeal File, Tab 1 at
10.
¶3 On appeal to the Board, the appellants alleged, among other things, that the
agency did not treat similar employees with fairness and equity because the
agency exempted attorneys from the furlough, but not employees such as Human
Resources Specialists, and exempted Oklahoma tornado victims whose homes
were deemed uninhabitable, but not those employees whose homes received
extensive storm damage but were still deemed “livable,” even though financial
hardship was not supposed be a consideration in effecting the furloughs. See,
e.g., Harke Appeal File, Tab 1 at 6, 8; Frazier Appeal File, Tab 1 at 6.
¶4 The agency asserted in response that the appellants were ultimately
furloughed for 6 workdays, see, e.g., Harke Appeal File, Tab 3 at 18; Frazier
Appeal File, Tab 3 at 18, and that five agency attorneys were exempted because
an ethical conflict would exist for the attorneys if they could appeal the same
furlough they would have to defend before the Board, Harke Appeal File, Tab 3
at 5. The agency also asserted that, under 5 U.S.C. §§ 5522 -23, the Secretary of
the Air Force exercised “continuation of salary” in the form of evacuation
payments to offset direct added expenses incurred by employees who were
ordered to evacuate and were prevented from performing their duties because of
2
Under the Balanced Budget and Emergency Deficit Control Act, as amended, see
2 U.S.C. § 901a(5)(A), Congress required the Office of Management and Budget to
calculate and the President to order a “sequestration” on March 1, 2013, for FY 2013,
that would reduce each spending account within certain security and nonsecurity
categories by a uniform percentage to achieve certain reduction goals. See Chandler v.
Department of the Treasury, 120 M.S.P.R. 163, ¶ 4 (2013).
4
an imminent danger to their lives as a result of a severe weather condition or
emergency situation, such as the tornadoes that affected an area of Oklahoma that
included Tinker Air Force Base on May 19, May 20, and May 31, 2013. Frazier
Appeal File, Tab 2 at 17.
¶5 The administrative judge consolidated the appeals, MSPB Docket No.
DA-0752-14-0157-I-1, Consolidated Appeal File (CAF), Tab 2 at 1-2, and found
that the appellants did not request a hearing, id., Tab 3 at 1. In a summary of the
close of record conference, the administrative judge identified the following
issues in the case, namely whether: (1) the agency had a legitimate reason for the
furlough; (2) the furlough promoted the efficiency of the service; (3) the agency
applied the furlough in a fair and even manner; and (4) the agency committed
harmful error in deciding to furlough the appellants. CAF, Tab 7 at 1. The
administrative judge noted that the agency bore the burden of proving that there
was a factual basis for the furlough, that the furlough promoted the efficiency of
the service, and that the agency applied the furlough to the appellants in a fair
and even manner. Id. at 2. The administrative judge informed the parties that an
agency may establish that a furlough promotes the efficiency of the service by
showing 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,” which means that the agency
applied the adverse action furlough uniformly and consistently. Id.
¶6 The administrative judge further notified the parties that the appellants had
the burden of proving by preponderant evidence that the agency committed
harmful error in deciding to furlough them. Id. In this regard, the administrative
judge noted that the appellants had alleged that the agency committed harmful
error by not treating similarly-situated employees the same when it exempted
some agency employees from the furlough based on the May 2013 tornadoes that
struck the Moore, Oklahoma area. Id. at 2-3. The administrative judge indicated
that, although 5 C.F.R. § 752.404 (b)(2) provides that a proposal notice must state
5
the basis for selecting a particular employee for furlough when some but not all
employees in a given competitive level are being furloughed, the proposal notices
in these cases did not indicate that any employees would be exempt from the
furlough based on the impact of the May 2013 tornadoes. Id. at 3. Thus, the
administrative judge ordered the parties to provide, among other things,
information regarding whether any employees were exempt from the furlough
based on the impact of the May 2013 tornadoes and, if so, evidence regarding
whether any of the exempt employees were in the same competitive level as the
appellants, as well as a detailed explanation of the basis for determining which
employees were not subject to furlough. Id. at 3-4.
¶7 In its response to the summary of the close of record conference, the
agency asserted that there was no harmful error because “safe haven” employees
who received evacuation payments, including continuation of salary, until they
returned to permanent housing in the evacuation area were “excluded” from the
furlough by operation of law before the agency issued its furlough proposal
notice, and thus did not need to fall under any of the stated exemptions for those
subject to the furlough. CAF, Tab 8 at 5-9; see, e.g., id. at 16-21. Alternatively,
the agency asserted that, even if there was an error in the application of its
procedures, the appellants did not show that the error likely caused the agency to
reach a conclusion different from the one it would have reached in the absence or
cure of the error. CAF, Tab 8 at 10; see 5 C.F.R. § 1201.56 (c)(3). The agency
asserted that it applied the “safe haven” procedures in a uniform and consistent
manner because “any employee whose home was rendered ‘uninhabitable’ could
apply for and take advantage of the Safe Haven program.” CAF, Tab 8 at 13.
The agency asserted that because it was statutorily prohibited from reducing the
pay of an employee under the protection of the “safe haven” program, and
because keeping such “safe haven” employees in the pool of employees subject to
the furlough would reduce their pay, removing those employees from the pool of
employees subject to the furlough was a reasonable decision. Id.
6
¶8 The administrative judge thereafter issued an “Order and Certification of
Interlocutory Appeal” finding that a question had arisen as to whether the
agency’s “safe haven” decision should be analyzed as part of the agency’s burden
of proving that it treated employees in a fair and even manner or whether the
“safe haven” decision should be considered under a harmful error analysis with
the appellants having the burden of proof. CAF, Tab 9 at 5. The administrative
judge found that the Board had jurisdiction to review the agency’s decision to
“exempt ‘safe haven’ employees from the agency-wide furlough” and that the
agency’s “safe haven” decision should be analyzed as part of the agency’s burden
of proving that its furlough determinations were made in a fair and even manner.
Id. at 5-6. The administrative judge further held that “neither 5 U.S.C. § 5523
nor the Office of Personnel Management’s regulations implementing that
provision, precluded the inclusion of the ‘safe haven’ employees in the
agency-wide furlough.” Id. at 6. In this regard, the administrative judge noted
that, under 5 C.F.R. § 550.407 , evacuation payments were to terminate when the
employee resumed his or her duties at the duty station from which he or she was
evacuated, and it appeared that the employees covered under the “safe haven”
program had returned to work at their duty stations and their inclusion in the
“safe haven” program was based on the loss of their homes. Id. at 6 n.8.
¶9 The administrative judge held that the question of whether “safe haven”
employees were properly excluded from the furlough was appropriate for
certification of an interlocutory appeal because the allocation of the burden of
proof concerning the agency’s “safe haven” decision was an important question
of law about which there was substantial ground for difference of opinion and an
immediate ruling would materially advance the completion of more than 1,200
Tinker Air Force Base furlough appeals pending in the regional office. Id. at 6-7.
¶10 The agency thereafter filed a motion requesting certification of the
administrative judge’s rulings that the Board had jurisdiction to review the
agency’s decision to exclude “safe haven” employees from the furlough and that
7
the agency was not required to exclude the “safe haven” employees from the
furlough, which it viewed as distinct issues from the certified question regarding
allocation of the burden of proof. CAF, Tab 10 at 4-8; see CAF, Tab 11 at 4-5.
ANALYSIS
The administrative judge properly certified her ruling for interlocutory appeal.
¶11 An interlocutory appeal is an appeal to the Board of a ruling made by a
judge during a proceeding. 5 C.F.R. § 1201.91 . Upon motion from either party,
or by an administrative judge’s own motion, an administrative judge may certify
an interlocutory appeal to the Board. Id. The Board’s regulations provide for
certification of a ruling for review when “(a) [t]he ruling involves an important
question of law or policy about which there is substantial ground for difference of
opinion; and (b) [a]n immediate ruling will materially advance the completion of
the proceeding, or the denial of an immediate ruling will cause undue harm to a
party or the public.” 5 C.F.R. § 1201.92 .
¶12 The criteria for certifying an interlocutory appeal are met in this case. The
issue of which party bears the burden of proof concerning the agency’s “safe
haven” decision is an important question of law about which there is substantial
ground for difference of opinion and an immediate ruling on that question will
materially advance the completion of this proceeding. Therefore, the
administrative judge properly certified her ruling for interlocutory appeal. See
Shenwick v. Department of State, 92 M.S.P.R. 289 , ¶¶ 7, 19 (2002) (addressing
an administrative judge’s burden-of-proof ruling following a certification of the
issue for interlocutory appeal); Link v. Department of the Treasury, 56 M.S.P.R.
254 , 256 (1993) (same).
¶13 To the extent that the issues raised by the agency in its motion were not
included in the certification for interlocutory appeal issued by the administrative
judge, we GRANT the agency’s motion and consider these additional issues in
8
deciding this interlocutory appeal. See MacLean v. Department of Homeland
Security, 112 M.S.P.R. 4 , ¶ 6 (2009).
The agency’s “safe haven” decision should be analyzed as part of the agency’s
burden of proving that it treated employees in a fair and even manner.
¶14 Under 5 U.S.C. §§ 7512 (5) and 7513(a), an agency may furlough an
employee for 30 days or less “only for such cause as will promote the efficiency
of the service.” 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, 120 M.S.P.R. 163 , ¶ 8. A “fair and even
manner” means that the agency applied the adverse action furlough uniformly and
consistently just as it is required to apply in a reduction in force (RIF). 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.
¶15 The administrative judge properly ruled that the burden of proof is on the
agency to show that it applied its determination as to which employees to
furlough, including its determination not to furlough “safe haven” employees, in
a fair and even manner. Under 5 U.S.C. § 7701 (c)(1)(B) and 5 C.F.R.
§ 1201.56 (a)(1)(ii), the decision of the agency shall be sustained only if the
decision is supported by a preponderance of the evidence. As the Board held in
Chandler, 120 M.S.P.R. 163 , ¶ 8, the agency is always responsible for proving
that an adverse action promotes the efficiency of the service. Although the
agency correctly contends that the Board does not have the authority to determine
when the agency may implement and terminate “safe haven” procedures, see
CAF, Tab 10 at 7, the Board can review whether the agency applied its
determination as to which employees to furlough in a fair and even manner, see
9
Chandler, 120 M.S.P.R. 163 , ¶ 8, and the agency’s determination not to furlough
certain employees because of the “safe haven” program falls within that
authority.
¶16 If the Board were to analyze this issue as one involving a claim of harmful
error, the burden of proof would be on the appellants. See 5 C.F.R.
§ 1201.56 (a)(2)(iii), (b)(1), (c)(3). Harmful error is error by the agency in the
application of its procedures 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. 5 C.F.R. § 1201.56 (c)(3). Some of the appellants have alleged that the
agency did not treat similar employees with fairness and equity because the
agency exempted tornado victims whose homes were deemed uninhabitable but
not those employees whose homes received extensive storm damage but were still
deemed “livable,” even though financial hardship was not supposed to be a
consideration in effecting the furloughs and the permanent duty station was
intact. See, e.g., Harke Appeal File, Tab 1 at 6, 8; Frazier Appeal File, Tab 1
at 6; Arce v. Department of the Air Force, MSPB Docket No. DA-0752-13-1740-
I-1, Tab 4 at 4. We find that this assertion constitutes an allegation that the
agency did not meet its burden of proving that its action promoted the efficiency
of the service, rather than a claim of harmful error. The appellants have not
argued, for example, that in the absence or cure of the agency’s allegedly
erroneous decision not to furlough the “safe haven” employees, the agency likely
would have reached a different conclusion regarding their furloughs. Moreover,
the appellants have not alleged that any error by the agency concerning 5 C.F.R.
§ 752.404 (b)(2) likely 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). Thus, we find that it would be inappropriate in this case to
address these issues in terms of whether the agency committed harmful error in
deciding not to furlough the “safe haven” employees.
10
¶17 As set forth above, the primary issue in this case is whether the agency
applied the adverse action furlough uniformly and consistently, and thereby
treated similar employees similarly and justified any deviation with legitimate
management reasons. Chandler, 120 M.S.P.R. 163 , ¶ 8. Thus, 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. Id., ¶ 9. Here, even
assuming that the appellants and the “safe haven” employees are held to be
similarly situated in terms of RIF principles, see id., ¶ 8, the agency has alleged
that its legitimate management reason for the difference in treatment was that the
individuals who were not furloughed applied for and were granted evacuation
payments, and that the agency could not, as a result, reduce the pay of these “safe
haven” employees by means of a furlough.
¶18 Under 5 U.S.C. §§ 5523 (a) and 5522(a)(2), the head of each agency may
provide for the payment of monetary amounts to each employee whose departure
is authorized or ordered from any place where there is imminent danger to the life
of the employee or the lives of the dependents or immediate family of the
employee. Evacuation payments of pay, allowances, and differentials may
therefore be made to an employee during an evacuation. 5 C.F.R. § 550.403 (b).
Such payments shall be based on the rate of pay to which the employee was
entitled immediately before the issuance of the order of evacuation. 5 C.F.R.
§ 550.404 (a). An order to evacuate means an oral or written order to evacuate
from an assigned area. 5 C.F.R. § 550.402 . Evacuation payments shall cover the
period of time during which the order to evacuate remains in effect, unless
terminated earlier, but shall not exceed 180 days. 5 C.F.R. § 550.404 (b)(2).
Evacuated employees at safe havens may be assigned to perform any work
considered necessary or required to be performed during the evacuation without
regard to the grades or titles of the employees. 5 C.F.R. § 550.406 (a). A “safe
haven” is a designated area to which an employee or dependent will be or has
11
been evacuated. 5 C.F.R. § 550.402 . Not later than 180 days after the effective
date of the order to evacuate or when the emergency or evacuation situation is
terminated, whichever is earlier, an employee must be returned to his or her
regular duty station or appropriate action must be taken to reassign him or her to
another duty station. 5 C.F.R. § 550.406 (c). Evacuation payments terminate
when “the agency determines that,” among other things, the employee resumes
duties at the duty station from which he or she was evacuated or “[t]he agency
determines that payments are no longer warranted.” 5 C.F.R. § 550.407 .
¶19 Here, the Office of the Assistant Secretary of the Air Force issued the
evacuation orders in question. CAF, Tab 8 at 16-33. The evacuation orders
indicated that they would remain in effect until November 14, 2013, or until
revoked by the Office of the Assistant Secretary of the Air Force, whichever
occurred first. E.g., id. at 16. Allowances from the order were to be terminated
“upon return to permanent housing in the evacuation area or acceptance of
alternate permanent housing outside the mandatory area or in accordance with”
joint federal travel regulations. Id. The agency defined “permanent housing” as
a residence (from which the employee regularly commutes to and from the duty
location) that the employee and the dependents who resided with them at the time
of the evacuation intend to occupy permanently beyond expiration of the
evacuation order. Id. at 40. The agency asserted that the “permanent housing”
standard was developed and used by the Department of the Air Force in a prior
“safe haven” situation involving floods at Minot Air Force Base in North Dakota
in 2011, and was based on a management determination that the use of
“permanent housing” protected employees from having to pay two housing
payments (mortgage and rent) without “safe haven” allowances to offset those
expenditures. Id. at 6, 35. Once allowances for “safe haven” were terminated for
any one particular employee, such as an employee who returned to permanent
housing in the evacuation area, the employee would receive a furlough notice
from the agency depending on whether there was sufficient time left in the fiscal
12
year to accomplish a meaningful furlough, with the number of furlough days
pro-rated based on the number of weeks remaining in the furlough period. Id. at
40. The agency furloughed 64 of the 172 employees who qualified for “safe
haven” and signed up for the entitlements after those 64 employees found
permanent housing and returned to duties before August 13, 2013. Id. at 94.
¶20 In addition, the Secretary of the Air Force received a memorandum from
the Department of the Air Force’s Office of the General Counsel (OGC) opining
that “the use of the statutory provision in question, 5 U.S.C. § 5523 , once
exercised by the Secretary of the Air Force (or his designee), prohibits the Air
Force from reducing the affected employees’ rate of pay by furloughing the
affected employees during the period such employees fall within the Safe Haven
protections.” CAF, Tab 8 at 46. The OGC appears to have based this opinion on,
among other things, language from section 5523 suggesting that payments shall
be based on the same rate of pay to which the employee was entitled immediately
before the issuance of the order of evacuation, and a determination that
employees invoking protections under “safe haven” provisions are deemed by
statute to have performed work (even if they have not) and must be paid at the
same rate of pay for the entire work period as if they were at work. CAF, Tab 8
at 47.
¶21 In an adverse action furlough, as in a RIF and in a directed reassignment,
the Board’s general review is to assure that such actions are used for legitimate
reasons; therefore, the Board’s focus is on the legitimacy of the reasons for the
furlough, RIF, or reassignment. See Shenwick, 92 M.S.P.R. 289 , ¶ 11; Ketterer v.
Department of Agriculture, 2 M.S.P.R. 294 , 298 (1980) (finding directed
reassignments to be analogous to RIFs, which are equally susceptible to misuse to
effect any employee’s separation, and noting that agencies must prove that the
RIF regulations were properly invoked due to appropriate management
considerations). In determining the legitimacy of the reasons for a decision not
to furlough certain employees when the agency asserts that it was precluded from
13
doing so by law, rule, or regulation, the Board need not determine, after the fact,
whether a decision not to furlough certain employees was actually permissible
under applicable law, rule, and regulation. Cf. Cooke v. U.S. Postal Service,
67 M.S.P.R. 401 , 406-07 (the Board’s review of a directed reassignment centers
on the legitimacy of the reasons for the reassignment, not on whether the action
was reversed on technical, procedural, or other grounds), aff’d, 73 F.3d 380 (Fed.
Cir. 1995) (Table); Garrison v. Department of Justice, 67 M.S.P.R. 154 , 162 (an
agency manager is not required, in making a decision affecting the employment
of one of his employees, to consider facts as he believes that an adjudicator might
after the fact imagine them to be; rather, an agency manager is entitled to rely on
his professional experience to consider facts as he reasonably believes them to be
at the time he makes his decision), aff’d,
72 F.3d 1566 (Fed. Cir. 1995). Rather,
in deciding whether the agency’s decision was based on legitimate management
reasons or, conversely, based on reasons “personal” to an employee or a group of
employees, the question is whether the agency reasonably and genuinely believed
that it was precluded from furloughing that group of employees. Thus, in Cross
v. Department of Transportation,
127 F.3d 1443 , 1446 (Fed. Cir. 1997), the
appellants asserted that the RIF could not have been conducted for a proper
purpose because the legislation abolishing the Interstate Commerce Commission
(ICC) had not yet been enacted at the time the RIFs were initiated, and so there
could not have been a lack of funding at the agency until the appropriations bill
“sunsetting” the ICC had passed. The court rejected that argument, holding that
“[w]here agency officials reasonably and genuinely believe that the agency’s
abolition is inevitable and its funding is to be terminated, initiation of a RIF is
proper.”
Id. at 1447. The court noted that conducting a RIF because of an
anticipated shortage of funds does not require that the shortage exist at the time
of the RIF and that agency officials who are aware of imminent legislation
progressing through Congress need not wait until the legislation is enacted before
taking appropriate action.
Id. The court held that a significant delay by agency
14
officials could have risked leaving insufficient time to accomplish an orderly
sunset of the agency and an orderly transfer of those functions being preserved
and that initiating an agency-wide RIF before enactment of the actual legislation
was prudent given the short time frame within which the agency had to deal with
the problem. Id. The court held that whether the agency officials honestly and
reasonably anticipated a budgetary shortfall is a question of fact that depends, in
part, on whether the legitimate management reason proffered by the agency
officials was credible. Id. at 1447-48.
¶22 Similarly, we find that the issue in this case is whether the agency officials
who made the decision not to furlough the “safe haven” employees reasonably
and genuinely believed that they were precluded from doing so by law, rule, or
regulation. The appellants may attempt to cast doubt on the existence of a
reasonable and genuine belief, and thus a legitimate management reason, in this
regard. See Richard v. Department of Defense, 66 M.S.P.R. 146 , 159 (1995),
modified on other grounds by Buckler v. Federal Retirement Thrift Investment
Board, 73 M.S.P.R. 476 , 496-97 (1997). Nevertheless, as set forth above, in
order to prove that the furloughs in this case met the statutory efficiency of the
service standard, the burden is on the agency to prove by preponderant evidence
that the relevant agency officials reasonably and genuinely believed that they
were precluded from furloughing the “safe haven” employees.
15
ORDER
¶23 Accordingly, we VACATE the stay order and RETURN the appeal to the
regional office for adjudication consistent with this Opinion and Order.
FOR THE BOARD:
______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
16
APPENDIX A
IN RE TINKER AFSC/DP
DA-0752-14-0157-I-1
Amy B. Noble DA-0752-13-2564-I-1
Angela Lin Woods DA-0752-13-1789-I-1
Krista O. Harke DA-0752-13-1340-I-1
LaNeal S. Barger DA-0752-13-1794-I-1
Lynda J. Arce DA-0752-13-1740-I-1
Nicoli D. Frazier DA-0752-13-1386-I-1
Sarah E. Walker DA-0752-13-2113-I-1
