The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT CARPENTER, 1 DOCKET NUMBER
Appellant, DC-0752-13-2215-I-1
v.
DEPARTMENT OF THE NAVY, DATE: May 11, 2015
Agency.
THIS ORDER IS NO NPRECEDENTIAL 2
Scott Carpenter, Kensington, Maryland, pro se.
James M. Metcalfe, Portsmouth, Virginia, for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
REMAND ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the furlough action and found that the appellant did not prove any of his
affirmative defenses. For the reasons discussed below, we GRANT the
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. NSSC II v.
Department of the Navy, DC-0752-14-0845-I-1.
2
A nonprecedential order is one that the Board has determined does not add
sign ificantly 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 Parties may cite nonprecedential orders,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 significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
appellant’s petition for review, VACATE the administrative judge’s
determination that the furlough promoted the efficiency of the service, AFFIRM
all other findings in the initial decision, and REMAND the case to the regional
office for further adjudication in accordance with this Remand Order.
BACKGROUND
¶2 The agency furloughed the appellant, an Engineer in the Naval Surface
Warfare Center (NSWC) Carderock Division, for 6 days. Initial Appeal File
(IAF), Tab 1 at 8-11 (notice of proposed furlough), 12-16 (notice of decision), 17
(Furlough Standard Form 50, showing that he would be furloughed on
discontinuous days between July 8, 2013, and September 27, 2013); see IAF,
Tab 5. The appellant filed a Board appeal, and he requested a hearing. See IAF,
Tabs 1-2.
¶3 The appellant was informed that his appeal was consolidated with the
appeals of similarly situated employees. NSSC II v. Department of the Navy,
MSPB Docket No. DC-0752-14-0845-I-1, Consolidated Appeal File (CAF),
Tab 1. The appellant filed a motion to compel discovery, which the
administrative judge granted in part and denied in part. See IAF, Tabs 6, 9. The
appellant filed a motion to certify an interlocutory appeal based on the
administrative judge’s order regarding the motion to compel, and the
administrative judge denied this motion. See IAF, Tabs 10, 12. A hearing was
held. See Hearing Transcript (HT).
¶4 The administrative judge issued an initial decision in which he found that:
(1) the agency established that it faced a lack of funds; (2) furloughs were a
reasonable management solution to this problem; and (3) the agency determined
which employees to furlough in a fair and even manner. CAF, Tab 15, Initial
Decision (ID) at 15-17. The administrative judge therefore concluded that the
agency proved the factual basis for the furloughs and that the furloughs promoted
the efficiency of the service. ID at 17. The administrative judge further found
3
that the appellants failed to establish any of their affirmative defenses, including,
as relevant here, that the furlough did not apply to Working Capital Fund (WCF)
employees. See ID at 17-20. Regarding the affirmative defenses raised only by
the appellant, the administrative judge determined that the appellant did not prove
that the furlough was not in accordance with law or that the agency committed
harmful procedural error. See ID at 20-23.
¶5 The appellant filed a petition for review, the agency filed a response, and
the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 5-6.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant challenges the basis for the furlough, arguing that
he was paid through WCFs that were exempt from sequester and that the agency
did not have cause to furlough him. PFR File, Tab 1 at 7-11. He further argues
that he was afforded “empty” process because the agency did not consider his
reply and no “legal review” was conducted. Id. at 11-13. He also asserts that he
was improperly denied discovery, and he explains that he sought information
related to whether the furlough was conducted in a fair and even manner. Id.
at 13-18.
Standard of review of a furlough appeal
¶7 A furlough is the placing of an employee in a temporary status without
duties and pay because of a lack of work or funds or other nondisciplinary
reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or
less, as here, are reviewable under the “efficiency of the service” standard found
in 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.
163, ¶ 5 (2013). An agency satisfies this standard in a furlough appeal by
showing that the furlough was a reasonable management solution to the financial
restrictions placed on it and that the agency applied in a fair and even manner its
determination as to which employees to furlough. Id., ¶ 8.
4
The appellant’s argument that he was paid from WCFs does not persuade us that a
different outcome is warranted.
¶8 Since the parties filed their petition for review submissions, the Board
addressed, in a precedential decision, an argument that WCFs were exempt from
sequester. See Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 13-18.
In pertinent part in Einboden, the Board stated that, even if WCFs were exempt
from a sequestration order, “such an interpretation would not end our inquiry into
whether there were financial restrictions placed on the agency and whether the
furlough was a reasonable management solution to these restrictions.” Id., ¶ 13
(citing Chandler, 120 M.S.P.R. 163, ¶ 8). After discussing the various
restrictions placed upon the agency, and noting that it was reasonable for the
Department of Defense to consider its budget situation holistically, rather than
isolating the situation of each individual Navy organization or component, the
Board concluded that the furlough action was a reasonable management solution
to those financial restrictions. Einboden, 122 M.S.P.R. 302, ¶¶ 14-18. The Board
therefore found that that the agency met its burden of proof. Id., ¶ 18.
¶9 The Board’s decision in Einboden controls our analysis of the WCF
argument raised by the appellant on review. Even if the appellant’s WCF were
exempt from a sequestration order, the Board would still need to consider whether
the furlough was a reasonable management solution to the financial restrictions
placed upon the agency. The appellant has not persuaded us that the
administrative judge erred in this regard, see ID at 15-17, and we affirm his
conclusion herein.
The appellant has not proven his affirmative defenses.
¶10 Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
agency error is harmful only where the record shows that the procedural error was
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. Stephen v. Department of
the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
5
¶11 As a factual matter, the record does not support the appellant’s assertion
that the agency did not consider his response to the notice of proposed furlough.
To the contrary, the deciding official testified that he reviewed “all the
responses” and he consulted with the agency’s attorney if he had questions
regarding individual responses. See HT at 62, 66-69. That the notice of decision
may not have addressed the appellant’s specific arguments in his response does
not mean that the arguments were not considered or that the agency committed
harmful procedural error. See, e.g., Salo v. Department of Defense, 2015 MSPB
14, ¶¶ 8-9 (noting that Mr. Salo did not identify any regulatory, statutory, or
judicially imposed requirement that the agency must specifically address all
arguments raised in a response to a proposal notice, and concluding that the
appellant has not shown that any alleged 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). 3
3
Even if we considered the appellant’s assertion that he was denied due process
because he was not given any specific notice of the furlough and his response was not
meaningful because the notice of decision was a form letter, see PFR File, Tab 1
at 12-13 & n.9, this argument does not warrant a d ifferent outcome. The appellant
correctly notes that the “core” of due process is “the right to notice and a meaningful
opportunity to be heard.” Id. at 12 n.9 (citing Lachance v. Erickson, 522 U.S. 262, 266
(1998)). Based on our review of the record, we conclude that he received all of the
process to which he was entitled. For instance, the notice of proposed furlough gives
him ample notice of the reasons for the furlough. See IAF, Tab 1 at 8-11. Although we
could not find the appellant’s response to the notice of proposed furlough in the record,
it appears undisputed that the appellant submitted a written response. The record
reflects that the appellant had a meaningful opportunity to be heard because he admits
on review that he “raised legal questions” in h is response, PFR File, Tab 1 at 12, and, as
noted above, the deciding official testified that he considered all responses and
consulted with an attorney when necessary. Cf. Hodges v. U.S. Postal Service,
118 M.S.P.R. 591, ¶ 6 (2012) (An employee cannot be said to have had a meaningfu l
opportunity to present his side of the story and to invoke the discretion of the deciding
official if the deciding official did not read the employee’s written response to the
proposal notice before issuing his decision).
6
The administrative judge abused his discretion by not granting in part the motion
to compel regarding interrogatories 12 and 15 and the corresponding requests for
production of documents.
¶12 Discovery is the process by which a party may obtain relevant information
from another person or a party that the other person or party has not otherwise
provided. Chandler, 120 M.S.P.R. 163, ¶ 10; see 5 C.F.R. § 1201.72(a).
Relevant information includes information that appears reasonably calculated to
lead to the discovery of admissible evidence. Chandler, 120 M.S.P.R. 163, ¶ 10.
What constitutes relevant information in discovery is to be liberally interpreted,
and uncertainty should be resolved in favor of the movant absent any undue delay
or hardship caused by such request. Id. Discoverable information is not without
boundaries, however, and the requesting party must ultimately show that the
information sought is relevant or is likely to lead to relevant evidence. Id.; see
5 C.F.R. § 1201.72(b). An administrative judge has broad discretion in ruling on
discovery matters, and, absent a showing of an abuse of discretion, the Board will
not find reversible error in such rulings. Vaughn v. Department of the
Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
¶13 The administrative judge denied many of the appellant’s interrogatories and
corresponding requests for production of documents. See IAF, Tab 9. We are
limiting the scope of our review to the interrogatories and corresponding requests
for production of documents raised by the appellant on review, namely
interrogatories 1-9, 12-13, and 15-18. See PFR File, Tab 1. For the following
reasons, we affirm the administrative judge’s decision to deny the motion to
compel regarding interrogatories 1-9, 13, and 16-18 and the corresponding
request for production of documents, but we grant the motion to compel in part
regarding interrogatories 12 and 15 and the corresponding request for production
of documents.
7
Interrogatories 1-9
¶14 Interrogatories 1-9 requested information regarding the financial stability of
NSWC Carderock and the Navy WCF as a whole, including information such as
cash balance, carry-over balance, value of funded orders, total dollar amount of
active obligations, total number and amount of orders de-obligated or withdrawn
due to the sequester. See IAF, Tab 6 at 10. The administrative judge denied the
motion to compel regarding these interrogatories because the information relating
to the budget and funding was not relevant under Chandler. IAF, Tab 9 at 1. The
appellant asserts on review that interrogatories 1-9 relate to whether there was
“cause” for the furlough of NSWC Carderock employees. PFR File, Tab 1
at 14-15 (citing Dye v. Department of the Army, 121 M.S.P.R. 142 (2014)). We
discern no error with the administrative judge’s analysis because the efficiency of
the service determination does not encompass agency spending decisions per se.
See Chandler, 120 M.S.P.R. 163, ¶ 9 (explaining that such matters belong to the
judgment of the agency managers who are in the best position to decide what
allocation of funding will best allow the agency to accomplish its mission).
Moreover, the Board, in Dye, 121 M.S.P.R. 142, ¶ 9, explained that the concept of
“cause” in the context of a furlough appeal encompasses whether the appellant
met the criteria established by the agency for being subject to, and not excepted
from, the furlough. Other than the WCF issue discussed above, see supra ¶¶ 8-9,
the appellant has not persuaded us that the requested information is reasonably
calculated to lead to the discovery of admissible evidence in this regard. We
therefore affirm the administrative judge’s decision in this regard.
Interrogatories 17-18
¶15 Interrogatories 17-18 sought “all bases, legal or otherwise” for the deciding
official’s response to the appellant’s response to the notice of proposed furlough
and “all bases legal or otherwise” for the Undersecretary of Defense’s declaration
that the furlough was not illegal pursuant to 10 U.S.C. § 129, respectively. IAF,
Tab 6 at 11. Noting that the agency indicated that it already provided this
8
information to the appellant, the administrative judge denied the motion to
compel, and she informed the appellant that he could file a motion to compel any
relevant non-privileged information that has not been provided to him. IAF,
Tab 9 at 2. The appellant did not file a subsequent motion to compel, and, on
review, he essentially reiterates the reasons for these interrogatories. See PFR
File, Tab 1 at 17-18. The appellant has not identified any relevant,
non-privileged information that the agency did not provide, and we cannot
conclude that the information sought in interrogatories 17-18 is reasonably
calculated to lead to the discovery of admissible evidence. Here, too, we affirm
the administrative judge’s decision in this regard.
Interrogatories 12-16
¶16 Interrogatory 12 sought information regarding the number of Navy civilians
who worked overtime during the pay periods that the employees were subject to
the furlough, and interrogatory 13 sought the same information as interrogatory
12 “for the Department of Defense as a whole.” IAF, Tab 6 at 10. Interrogatory
15 sought “information” regarding the process for determining the number of
total furlough hours for each employee and interrogatory 16 sought “information”
regarding the decision to apply the furlough to the entire Department of Defense.
Id. at 10-11. The administrative judge found that information sought in
interrogatories 12-13 and 15-16 concerned civilians stationed outside of his duty
station and chain of command, and thus these individuals were not similarly
situated to the appellant. IAF, Tab 9 at 1-2 (citing Weathers v. Department of the
Navy, 121 M.S.P.R. 417, ¶ 8 (2014)). On review, the appellant contends that
interrogatories 12-13 were relevant to ascertain whether the furlough was applied
fairly and evenly and interrogatories 15-16 “directly relate[] to the cause of
action” against him. PFR File, Tab 1 at 15-17.
¶17 The Board has broadly pronounced that information regarding overtime
given to employees is relevant to whether the agency applied the furlough
uniformly and consistently. See Chandler, 120 M.S.P.R. 163, ¶ 14. The Board
9
has also stated that employees who work in different competitive areas and for
different organizational units are generally not considered to be similarly situated
for purposes of determining whether the agency proved that it applied its
determination as to which employees to furlough in a fair and even manner. See
Weathers, 121 M.S.P.R. 417, ¶¶ 8-9. A competitive area is generally defined
solely in terms of the agency’s organizational units and geographical location,
and the minimum competitive area is a subdivision of the agency under separate
administration within the local commuting area. Id., ¶ 8 (citing 5 C.F.R.
§ 351.402(b)).
¶18 Given our precedent in Chandler and Weathers, we conclude that the
administrative judge abused his discretion when he denied in its entirety the
appellant’s motion to compel regarding interrogatories 12 and 15 and the
corresponding request for documents. Regarding interrogatory 12, the
administrative judge should have granted in part the motion to compel to allow
the appellant to obtain information regarding similarly situated agency employees
who worked overtime, as this information may be relevant to whether the agency
applied the furlough fairly and evenly. Regarding interrogatory 15, the Board
noted in Chandler that the length of the furlough imposed on similarly situated
people is relevant to the determination of whether the furlough was conducted in
a uniform and consistent manner. See Chandler, 120 M.S.P.R. 163, ¶ 20. The
administrative judge also should have granted the motion to compel in part and
limited interrogatory 15 to similarly situated employees.
¶19 We affirm the administrative judge’s decision to deny the motion to compel
regarding interrogatories 13 and 16, which apply to the Department of Defense as
a whole and not to any individuals similarly situated to the appellant. See
Weathers, 120 M.S.P.R. 617, ¶ 8.
¶20 In light of our disposition regarding interrogatories 12 and 15 and the
corresponding requests for production of documents, we vacate the administrative
judge’s finding that the furlough promoted the efficiency of the service and
10
REMAND for further proceedings because these discovery requests sought
relevant information under 5 C.F.R. § 1201.72(a). 4
ORDER
For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
4
To the extent that the appellant asserts on review that the administrative judge
improperly denied his motion to certify an interlocutory appeal, we are not persuaded
that this argument warrants a different outcome. See 5 C.F.R. § 1201.92.