The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
FRANK A. PUTZU, 1 DOCKET NUMBER
Appellant, DC-0752-13-5887-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 2, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Frank A. Putzu, Alexandria, Virginia, pro se.
Linda L. Tiller, John D. Norquist and Jeffrey A. Epstein, Esquire,
Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
affirmed the agency’s furlough action. Generally, we grant petitions such as this
one only when: the initial decision contains erroneous findings of material fact;
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation, NAVSEA v.
Department of the Navy, MSPB Docket No. DC-0752-14-0646-I-1.
2
A nonprecedential order is one that the Board has determined does not add
significantly 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 Parties may cite nonprecedential orders,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
the initial decision is based on an erroneous interpretation of statute or regulation
or the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review. Except as
expressly MODIFIED by this Final Order, which provides additional support for
the administrative judge’s finding that the appellant did not qualify for an
exception to the furlough, and clarifies that the burden is on the agency to prove
“cause” for the action, we AFFIRM the initial decision.
¶2 After a hearing, the administrative judge held that the agency proved that it
had to make significant spending cuts because of sequestration 3 and that the
furlough helped the agency avoid a deficit. NAVSEA v. Department of the Navy,
MSPB Docket No. DC-0752-14-0646-I-1, Consolidation Appeal File (CAF),
Tab 19, Initial Decision (ID) at 15-16. The administrative judge also found that
the furlough was a reasonable management solution to the financial issues facing
the agency and promoted the efficiency of the service. ID at 16. In this regard,
the administrative judge rejected the arguments that the agency could have taken
other measures to avoid the furlough, the budget cuts did not affect the ability of
the Department of the Navy (Navy) to protect national security, and funds could
not be reprogrammed, finding that these arguments were based on spending
3
The term “sequestration” refers to the cancellation of budgetary resources provided by
discretionary appropriations or direct spending law. See Salo v. Department of Defense,
122 M.S.P.R. 417, ¶ 2 (2015).
3
matters within the agency’s sound discretion. Id. The administrative judge also
held that the agency imposed the furloughs uniformly. Id.
¶3 The administrative judge held that, although the appellant asserted that he
should have been exempt from the furlough under an exemption for “Shipyard
Workers, Nuclear and Naval Reactors Staff,” see CAF, Tab 2; see also
Department of the Navy Administrative Record for FY 2013 Furlough Appeals,
Tab 12 at 105, 108-09, available at http://www.mspb.gov/furloughappeals/navy
2013.htm, because he serves as Counsel for the Office of Naval Reactors and was
therefore a member of the Naval Reactors staff, the appellant was actually an
employee of the Naval Sea Systems Command’s (NAVSEA’s) Office of General
Counsel (OGC), not the Office of Naval Reactors, which was one of his clients,
ID at 18-19. The administrative judge further concluded that the appellants did
not prove harmful error or a violation of their due process rights. ID at 19-20.
¶4 The appellant contends on review that the agency initially identified his
position as having met the criteria for an exception to the furlough, testimony and
his position description show that he qualified for the exception as “Naval
Reactors Staff,” the term “staff” does not only mean “employee,” and there is
nothing improper or unusual for a Navy employee to be on the staff of different
Navy organizations. Petition for Review (PFR) File, Tab 1 at 7, 10-11, 17. The
appellant asserts that “he is an employee of the Department of the Navy, a
member of OGC, paid from funds apportioned to NAVSEA (the same as Navy
employees assigned to NAVSEA 08), and works on the staff of Naval Reactors.”
Id. at 17. The agency asserts that the evidence shows that the appellant was not
an employee of the Office of Naval Reactors. PFR File, Tab 3 at 8.
¶5 An agency may furlough an employee for 30 days or less “only for such
cause as will promote the efficiency of the service.” 5 U.S.C. §§ 7512(5),
7513(a). 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. Dye v. Department of the
4
Army, 121 M.S.P.R. 142, ¶ 9 (2014). The agency has the burden of proof on this
issue. Id., ¶¶ 9-10; see In re Tinker AFSC/DP v. Department of the Air
Force, 121 M.S.P.R. 385, ¶¶ 14-15 (2014). Here, the administrative judge
correctly found that the agency met its burden of proof by preponderant
evidence. 4
¶6 In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
Department of Defense (DOD) Furlough Exceptions that included, for the Navy,
1,657 individuals identified only as “Shipyard Workers, Nuclear and Naval
Reactors Staff.” Department of the Navy Administrative Record for FY 2013
Furlough Appeals, Tab 12 at 105, 108-09.
¶7 The appellant’s position description indicates that his position of “Counsel,
Naval Reactors,” exists within the Navy’s OGC (first subdivision), Counsel,
NAVSEA (second subdivision), Office of Counsel (third subdivision). Initial
Appeal File (IAF), Tab 2 at 12. The position description further notes that the
position is “within the Office of Counsel, Naval Sea Systems Command,” and that
the NAVSEA Office of Counsel is responsible for providing legal advice,
services and representation, and giving necessary legal approvals, opinions, and
interpretations to NAVSEA and its field activities, affiliated Program Executive
Officers, Direct Reporting Program Managers, and the Director, Naval Reactors.
Id. at 13. In addition, the position description provides that the appellant’s
position “is a Section Head within the NAVSEA Office of Counsel, and the
primary legal subject matter expert and a senior advisor to the Director, Naval
Reactors.” Id. at 14. The appellant testified that his performance appraisals, at
least in part, as well as any disciplinary actions that would be taken against him,
were to be acted upon by individuals within OGC, not Naval Reactors. Hearing
Transcript (HT) at 111-13. He also testified that he considered Naval Reactors to
4
Preponderant evidence is the degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested
fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
5
be his client in his capacity as an attorney. HT at 113-14. The fact that the
appellant’s position officially exists within OGC, not within Naval Reactors, and
provides legal advice, services, and representation to Naval Reactors, as well as
the involvement of OGC in matters affecting the appellant’s employment, all
support the administrative judge’s determination that the appellant’s position falls
within the staff of OGC, rather than “Naval Reactors Staff.”
¶8 In addition, the deciding official, who was the Executive Director of
NAVSEA, testified in a separate Board appeal that he interpreted the phrase
“Naval Reactors Staff” in the May 14, 2013 Secretary of Defense memorandum as
referring to the “C08 Headquarters department, of which I was not the deciding
official for those employees,” which referred to Naval Reactors. IAF, Tab 10
at 9, 12-13 (transcript pages 7-8, 21-22). He testified in the instant appeal that an
employee is either “bureaucratically coded” in Naval Reactors or not so coded.
HT at 53. He also testified that the appellant’s position was “a NAVSEA position
with counsel being assigned by NAVSEA to” Naval Reactors, and that the
appellant’s position was an “OOL code,” while employees in Naval Reactors had
an “08 code.” HT at 62-63. OOL is NAVSEA’s legal department, which is not a
part of 08, which in turn refers to Naval Nuclear Propulsion. HT at 78-79. The
deciding official testified that, because the appellant was not a NAVSEA 08
employee, the Deputy Director, Naval Reactors, did not have the authority to
advocate for an exemption for the appellant from the furlough. HT at 188-90.
¶9 The Deputy Director, Naval Reactors, testified that, when Naval Reactors
had initially recommended that the appellant be excepted from the furlough, it
was arguing for NAVSEA “on their behalf,” and that he believed he had the
authority to take that position on behalf of NAVSEA. IAF, Tab 15 at 13
(transcript page 31). He also indicated, however, that there was no guidance
provided to him specifically indicating that he could seek a waiver or attempt to
seek a waiver for the appellant. Id. at 28 (transcript page 91).
6
¶10 Further, in a June 19, 2013 email from NAVSEA to the Deputy Director,
Naval Reactors, in response to his request for an opinion regarding the term
“Naval Reactors Staff,” NAVSEA indicated that the term referred to the
106 positions at headquarters that were identified in an attached exemption
request for Naval Reactor employees. IAF, Tab 15 at 50. The email provides:
The Furlough exemption request was submitted by NR [Naval
Reactors] on 6 March 2013 and endorsed by the VCNO [Vice Chief,
Naval Operations] on 21 March. The request was for 1,657 NR
employees; 1,551 at the four shipyards, and 106 at NR headquarters.
The request regarding the HQ employees consisted of 103 Nuclear
Engineers, 1 Logistics Management Specialist, 1 Health Physicist,
and 1 Operations Manager. On 14 May 2013, SECDEF issued a
memorandum directing DoD activities to prepare for furlough. The
memorandum contains an attachment specifying the final
dispositions on furlough exemptions. The only language in the
attachment relative to this issue is the exemption of 1,657 “Shipyard
Workers, Nuclear and Naval Reactors Staff.” Presumably these are
the same 1,657 employees listed in the Navy’s March furlough
exemption request. Shipyard Workers refers to the 1,551 NR
Shipyard employees; Naval Reactors Staff refers to the 106
exempted employees at NR HQ.
I conferred with . . . [the] Assistant General Counsel for M&RA
[Manpower & Reserve Affairs]. He concurs that Naval Reactor Staff
refers to the 106 employees identified in the exemption request.
Id. All of this evidence further supports the administrative judge’s finding that
the appellant did not fall within the exception for “Naval Reactors Staff.”
¶11 Even assuming, however, that the Counsel, Naval Reactors position was a
part of “Naval Reactors Staff” for purposes of the furlough exception, the record
reflects that Naval Reactors determined, before the issuance of the Secretary of
Defense’s May 14, 2013 memorandum and the start of the furloughs, that the
appellant’s position would not be included among the 106 exceptions from Naval
Reactors headquarters. As suggested by the email quoted above, before the
issuance of the May 14, 2013 memorandum from the Secretary of Defense setting
forth the exceptions from the furlough, Naval Reactors requested on March 21,
2013, from the Office of the Secretary of Defense and had approved by DOD only
7
106 exceptions from the furlough for Naval Reactors Headquarters employees,
including 102 Nuclear Engineers, 1 Information Technology Specialist, 1 Health
Physicist, 1 Logistics Management Specialist, and 1 Operations Manager; this did
not include the position of Counsel, Naval Reactors, which was eliminated from
the request because the position was not critical to responding to a nuclear
emergency. CAF, Tab 8 at 20-31, 40-46. The Deputy Director, Naval Reactors,
testified in a deposition that, after Naval Reactors made a recommendation for
exemptions from the furlough that included the appellant, “we got some feedback
from someone in leadership that came back and requested that the number be
reduced [from 121] again [to] those folks only responsible for life and safety
requirements and work on a recallable basis.” IAF, Tab 15 at 13, 17 (transcript
pages 31, 46-47). He testified that the “waiver exception folks never worked to
our criteria,” but instead “had their own set of criteria which was very specific to
life and safety issues,” and that “I don’t think anyone within the secretariat ever
agreed with our three criteria as being something on which to base the waiver.”
Id. at 17 (transcript pages 47, 49). He further testified that he, along with several
other individuals, edited the list of 121 employees down to 106, eliminating the
appellant’s position based on guidance received indicating that Naval Reactors
should assume it could recall individuals from the furlough if necessary and
except from the furlough only those positions involved in “immediate health or
life and safety,” which did not include the appellant’s position. Id. at 27
(transcript pages 87-88). He further testified that no one specifically told him to
take the appellant off the list of exempt employees, but by position, “it didn’t fit
in the last set of criteria we had handed to us.” Id. at 29 (transcript page 97).
¶12 Based on the initial decision and the analysis set forth above, we find that
the administrative judge correctly determined that the agency proved by
preponderant evidence that the appellant was subject to, and not excepted from,
the furlough. See Dye, 121 M.S.P.R. 142, ¶ 9.
8
¶13 The appellant also asserts that the administrative judge improperly denied
his motion to compel the production of evidence, including his request to take the
depositions of the Vice Chief, Naval Operations, and the Assistant Secretary of
the Navy for Manpower and Reserve Affairs, that he claims would have shown
why the agency determined that he did not meet the “Naval Reactors Staff”
exception, and improperly prohibited him from submitting evidence from the
DOD official who handled that exception, as well as evidence showing that a
March 21, 2013 memorandum setting forth the exception criteria represented “the
binding position of the agency.” PFR File, Tab 1 at 11-14.
¶14 An administrative judge has wide discretion to exclude evidence and
witnesses when it has not been shown that such evidence and testimony would be
relevant, material, and nonrepetitious. Fox v. Department of the
Army, 120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R. § 1201.41(b)(10). The Board
will not reverse an administrative judge’s rulings on discovery matters, including
a motion to compel, absent an abuse of discretion. Fox, 120 M.S.P.R. 529, ¶ 42.
In an order denying the appellant’s motion to compel discovery, the
administrative judge found that “whether the appellant should have been included
on a list of excepted Naval Reactors employees is not relevant to this proceeding
because the appellant was not a Naval Reactors employee.” IAF, Tab 13 at 2. As
set forth above, the appellant has shown no error in that determination. Thus, the
appellant has shown no abuse of discretion in the denial of discovery.
¶15 The appellant contends that the deciding official failed to consider
documentation he attached to his reply to the proposal notice suggesting that he
met the exception to the furlough for “Naval Reactors Staff,” and that the
administrative judge improperly placed the burden of proving that there was
“cause” for the action on him, rather than on the agency. PFR File, Tab 1
at 19-23. Given our finding that the appellant did not constitute “Naval Reactors
Staff,” the deciding official correctly concluded that the documentation in
question was not relevant to his determination to furlough the appellant. See HT
9
at 42-43 (testimony of the deciding official that, when he received a written reply
that cited documents, “if I thought they were relevant, I would have probably
asked for them, but where it was very clear or there wasn’t a case to be made –
really, what I was looking for in the replies was if it fit into one of the categorical
exceptions. That is really the latitude I had as the deciding official.” “If it was
relevant to that, I would have asked for it. If it wasn’t, I was going to make a
final decision and move on.”). Moreover, the administrative judge did not
improperly place the burden of proving “cause” on the appellant. Although the
administrative judge’s analysis of this issue does fall under a subheading that
references affirmative defenses and includes a discussion of the appellants’
harmful error and due process claims, the administrative judge cited and applied
the correct standard in this case, i.e., that the agency bears the burden of proving
the factual basis for the furlough and that the furlough promoted the efficiency of
the service. ID at 14-17, 18-19, 21. In any event, to the extent that the initial
decision may be unclear on this issue, we find, as set forth above, that the agency
has met its burden of proof in this regard.
¶16 Finally, the appellant asserts that the agency provided on appeal to the
Board documentation in support of its action, such as a document entitled
“Department of the Navy Administrative Furlough Guidance for Proposing and
Deciding Officials,” that it did not make available to him when it proposed his
furlough. PFR File, Tab 1 at 4 n.1, 25-27. An agency’s proposal notice must
state the specific reasons for the proposed action and inform the employee of his
or her right to review the material relied on to support the reasons for the action
given in the notice. 5 C.F.R. § 752.404(b)(1). Here, the agency’s proposal notice
informed the appellant that supporting material for the action could be found at a
specified agency website. IAF, Tab 5 at 19. The appellant has not alleged that
the deciding official relied upon the above document in taking the furlough
action. Even assuming, however, that the appellant established a procedural error
by the agency in this regard, he has not shown that any error likely caused the
10
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).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You have the right to
request the United States Court of Appeals for the Federal Circuit to review this
final decision. You must submit your request to the court at the following
address:
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff.
Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
has held that normally it does not have the authority to waive this statutory
deadline and that filings that do not comply with the deadline must be dismissed.
See Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
11
If you are interested in securing pro bono representation for an appeal to the
United States Court of Appeals for the Federal Circuit, you may visit our website
at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
provided by any attorney nor warrants that any attorney will accept representation
in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.