Glenn A. Southern v. Department of the Navy
Background
- Appellant Glenn A. Southern, a GS-0340-15 Program Manager at Naval Sea Systems Command (Naval Reactors), was proposed for up to 88 hours of furlough in summer 2013 and ultimately furloughed for 48 hours.
- The agency issued furloughs under a Department of the Navy/DoD structure that exempted certain categories (shipyard workers, nuclear shipyard workers, and Naval Reactors staff) but limited Naval Reactors Headquarters exceptions to 106 employees.
- Southern appealed to the MSPB; the initial consolidated decision upheld furloughs on the written record, the Board remanded for a hearing because Southern had not received his requested hearing, and a remand initial decision again upheld the furlough.
- Southern argued (1) he should have been excepted under a May 14, 2013 DoD directive that he read as providing sufficient exception slots, (2) he was an emergency responder and thus should have been excepted, (3) the agency committed due process and harmful procedural errors (including failing to disclose the 106-exception limit), and (4) the agency failed to supplement the record properly after remand.
- The administrative judge and Board found the agency met its burden to show the furlough promoted efficiency, that Southern did not meet the criteria for an exception, and that any procedural/due process errors were not harmful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether furlough was for cause promoting efficiency | Southern: DoD May 14 directive exempted enough employees (shipyard + Naval Reactors) so he should have been excepted | Navy: Directive did not aggregate exceptions to cover all Naval Reactors; only 106 exceptions applied to Naval Reactors HQ and Southern did not qualify | Held: Agency proved by preponderance that furlough was for cause and Southern did not meet exception criteria |
| Whether agency applied furlough fairly and reasonably | Southern: Limit of 106 exceptions was politically driven and arbitrary; he was emergency responder | Navy: Agency had broad discretion; deciding official used judgment to select most vital employees; some emergency responders were intentionally furloughed | Held: Furlough was a reasonable management solution and applied fairly; agency discretion upheld |
| Whether agency violated due process (Loudermill/Stone) | Southern: Agency failed to disclose legal definition of "Naval Reactors Staff" and the excess aggregate exemption numbers, and limited exceptions without notice | Navy: Clarifying communications only confirmed existing record; default was furlough and exceptions were discretionary; no new material info was introduced | Held: No due process violation; clarifications were not new material information and nondisclosure of 106 limit was immaterial |
| Whether procedural error was harmful under 5 U.S.C. § 7701(c)(2)(A) | Southern: Agency failed to base decision solely on proposal and response and did not supplement record properly after remand | Navy: Any record supplementation failures were the agency’s risk; Southern did not show how notice of the 106 limit would have changed outcome | Held: Even if procedural error occurred, it was not shown to be harmful; appellant failed to establish prejudice |
Key Cases Cited
- Hilderbrand v. Department of Justice, 22 M.S.P.R. 233 (general proposition that agency bears burden to prove cause in adverse actions)
- Dye v. Department of the Army, 121 M.S.P.R. 142 (definition of "cause" in furlough appeals and exception criteria analysis)
- Chandler v. Department of the Treasury, 120 M.S.P.R. 163 (agency discretion in structuring furloughs; fairness measured by treating similar employees similarly)
- Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532 (minimum due process requires notice and opportunity to respond)
- Stone v. Federal Deposit Insurance Corp., 179 F.3d 1368 (deciding official may not consider new material information undisclosed to employee)
- Blank v. Department of the Army, 247 F.3d 1225 (ex parte clarification that confirms record does not violate due process)
- Parker v. Defense Logistics Agency, 1 M.S.P.R. 505 (standard for harmful procedural error requires showing of prejudice)
- Stephen v. Department of the Air Force, 47 M.S.P.R. 672 (harmful error requires showing the error likely changed outcome)
- Pinat v. Office of Personnel Management, 931 F.2d 1544 (Federal Circuit enforces filing deadlines for appeals)