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Calhoun v. Department of Army

United States Court of Appeals, Federal Circuit

January 12, 2017


         Petition for review of the Merit Systems Protection Board in No. PH-0752-13-5389-I-1.

          Victoria Calhoun, Severn, MD, pro se.

          NATHANAEL Yale, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, for respondent. Also represented by BENJAMIN C. Mizer, Robert E. Kirschman, Jr., Allison Kidd-Miller.

          Before NEWMAN, Chen, and Stoll, Circuit Judges.

          Newman, Circuit Judge.

         Victoria Calhoun appeals the decision of the Merit Systems Protection Board ("Board") sustaining the action of the Department of the Army imposing a six day furlough in July and August of 2013 in response to sequestration legislation.[1] We discern no reversible error in the Board's decision.


         The Budget Control Act of 2011 established spending limits for federal agencies and required automatic spending cuts ("sequestration") if certain deficit reduction legislation was not enacted. Pub. L. No. 112-25, §§ 101-103, 125 Stat. 240, 241-46 (2011). The American Taxpayer Relief Act of 2012, Pub. L. No. 112-240, § 901, 126 Stat. 2313, 2370 (§ 901(e)), required the President to issue a sequestration order on March 1, 2013, near the middle of fiscal year 2013. 126 Stat, at 2370. On that date, President Obama issued a sequestration order requiring reductions in spending from most federal budget accounts for fiscal year 2013. 78 Fed.Reg. 14, 633.

         As a result, the 2013 budget of the Department of Defense (DOD) was cut by approximately 37 billion dollars, to be absorbed in the remaining six months of the fiscal year. The DOD took a number of steps to address the budgetary shortfall, including reprogramming funds, reducing facility maintenance, and eliminating some military training exercises. In a May 2013 memorandum, the Secretary of Defense explained that furloughs of civilian workers would be imposed to address the "historic shortfall in our budget" resulting from sequester.

         Ms. Calhoun is a non-excepted civilian Doctrine Defense Specialist employed by the United States Army Cyber Command (ACC), within the Department of the Army. The Commander of the ACC, Lt. Gen. Rhett A. Hernandez, was designated as the deciding official for the furloughs of ACC employees. Lt. Gen. Hernandez delegated that authority to his Chief of Staff, Col. Scott E. Sanborn. On May 28, 2013, Ms. Calhoun was issued a Notice of Proposed Furlough, including notice of her opportunity to reply. Ms. Calhoun exercised her opportunity to reply via an oral presentation to James L. Hill-born, an official designated by Col. Sanborn to hear oral replies. Ms. Calhoun also submitted a written reply on June 5, 2013. Her replies included budget proposals she asserted would prevent furloughs.

         On July 1, 2013, Ms. Calhoun received her Notice of Decision to Furlough. The Notice stated: "[y]our written and oral replies received in response to [the] notice have been reviewed and carefully considered. I have determined that the reasons for the proposed furlough, as stated in the notice of proposal, remain valid." S.A. 89. In email responses to inquiries by Ms. Calhoun, Col. Sanborn stated on July 14, 2013 that "I read through the packet that you included, " and on July 30, 2013 that "[t]he furlough guidance we received is clear and unfortunately I cannot exempt you for the reasons you have highlighted" S.A. 92-95. Ms. Calhoun was ultimately furloughed for six nonconsecutive days in July and August 2013.

         Ms. Calhoun filed a notice of appeal with the Board, alleging the furlough did not promote the efficiency of the service. Ms. Calhoun also alleged that the agency committed harmful error by failing to consider her budget proposals. She also stated that Lt. Gen. Hernandez improperly delegated his authority as deciding official to Col. Sanborn. The administrative judge (AJ) found Lt. Gen. Hernandez's delegation to Col. Sanborn did not violate DOD policy. Calhoun v. Dep't of the Army, No. PH-0752-13-5389-I-1, 2015 WL 4712185 (M.S.P.B. July 30, 2015). The AJ also found that Col. Sanborn appropriately considered Ms. Calhoun's reply, and that evaluation of the merits of her budget proposals was beyond the scope of his review as deciding official. The AJ affirmed the furlough decisions as a reasonable management solution to the shortage of funds caused by sequestration and that the furloughs promoted the efficiency of the service. Id.

         On appeal to the full Board, Ms. Calhoun renewed her argument that the agency erred in delegating the responsibilities of the deciding official to Col. Sanborn. Ms. Calhoun also asserted a due process violation because the deciding official did not receive a written summary of her oral reply prior to issuing the decision letter. The Board affirmed the AJ's decision, holding that the delegation to Col. Sanborn did not violate DOD policy or introduce harmful procedural error. Final Order at ¶9. The Board also found no due process violation because Col. Sanborn received ...

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