for review of the Merit Systems Protection Board in No.
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.
NEWMAN, Chen, and Stoll, Circuit Judges.
Newman, Circuit Judge.
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. We discern no reversible error in 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.
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
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.
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.
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.
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