The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
ANDREW ALDERFER, 1 DOCKET NUMBER
Appellant, PH-0752-13-2495-I-1
v.
DEPARTMENT OF THE NAVY, DATE: September 30, 2015
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 2
Andrew Alderfer, Folcroft, Pennsylvania, pro se.
James M. Metcalfe, Esquire, Portsmouth, Virginia, 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 his furlough for 6 days. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
1
Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation.
NAVSSESNEROKSHGR v. Department of the Navy, MSPB Docket No. PH-0752-14-
0372-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 administrative
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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 The agency issued a decision notice furloughing the appellant for no more
than 11 workdays (later reduced to 6 days) from his Administrative/Technical
Specialist position. MSPB Docket No. PH-0752-13-2495-I-1, Initial Appeal File
(IAF), Tab 1 at 7-14, Tab 3 at 4. The furlough was based on serious budgetary
challenges facing the Department of Defense (DOD), including the sequester that
began on March 1, 2013. The appellant filed an appeal which the administrative
judge consolidated with the appeals of similarly situated employees. MSPB
Docket No. PH-0752-14-0372-I-1, Consolidated Appeal File (CAF), Tab 1 at 1-2.
After holding the requested hearing, the administrative judge affirmed the
furlough actions. CAF, Tab 9, Initial Decision (ID) at 1-15.
¶3 On review, the appellant asserts that the administrative judge erred by
denying his motion to compel discovery because the information sought would
have led to evidence showing that there was in fact no budget shortfall and that
the agency achieved no savings from the furlough. Petition for Review (PFR)
File, Tab 1 at 4. The administrative judge issued a Furlough Procedures Order on
February 12, 2014, in which she informed the appellant that, if he wished to
3
engage in discovery, he must file his initial discovery requests with the agency
within 40 calendar days of the date of the order. CAF, Tab 1 at 4. The order
further informed the appellant that “you must not submit your discovery requests
and responses to the Board” unless he was filing a motion to compel. Id. at 4-5.
The agency asserted below, and the appellant does not contest, that he never filed
any discovery requests, either within the 40-day deadline or otherwise. See IAF,
Tab 7 at 3. It appears that, instead of timely submitting discovery requests to the
agency, the appellant submitted his discovery requests out of time to the
administrative judge and attempted to characterize them as a motion to compel.
IAF, Tab 6 at 3. Because the appellant never filed any discovery requests in the
first place, there was nothing to which the administrative judge could compel the
agency to respond and no basis for granting any motion to compel. Moreover, the
Board has found under similar circumstances that a motion to compel information
relating to cost savings in a furlough would be denied because the matter of cost
savings was outside the scope of the Board’s review. Salo v. Department of
Defense, 122 M.S.P.R. 417, ¶ 10 (2015); Chandler v. Department of the Treasury,
120 M.S.P.R. 163, ¶ 9 (2013). We find, therefore, that the administrative judge
did not abuse her discretion by denying the appellant’s motion to compel.
¶4 The appellant further claims on review that the agency granted some
employees overtime to perform duties that he deems not mission-critical work and
that the agency did not provide any evidence concerning the number of hours or
funds spent on overtime for other employees who were not furloughed. 3 PFR
File, Tab 1 at 4. He asserts that the agency continued to hire new employees
during the furlough period. Id. The agency is not required to prove that the
furlough actually resulted in a cost savings; it is enough for the agency to show
3
The appellant’s opinion, and for that matter the Board’s opinion, as to whether the
duties in question were mission-critical are not relevant. The Board will not
second-guess an agency’s assessment of its mission requirements and priorities.
Rodgers v. Department of the Navy, 122 M.S.P.R. 559, ¶ 16 (2015).
4
that the furlough action was a reasonable management solution at the time the
action was taken. Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶ 18
(2015). The Board has found that the hiring of new employees and the payment
of overtime to perform mission-critical work during a furlough are issues that are
solely spending matters within the agency’s sound discretion. Chandler,
120 M.S.P.R. 163, ¶ 14; see Kelly v. Department of the Army, 121 M.S.P.R. 408,
¶ 10 (2014). We agree with the administrative judge that the agency established
that the Department of Defense faced a lack of funds and that the furlough actions
were a reasonable management solution to the problem. ID at 14-15; see Yee v.
Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014).
¶5 Finally, the appellant asserts that Federal “employees were used as
leverage” in a national partisan-political dispute over government funding, which
he claims constitutes a prohibited personnel practice. PFR File, Tab 1 at 4.
However, he has not alleged that the agency made its decisions as to how to best
deal with the sequester, once the sequester was imposed on it, based on
partisan-political considerations. Furthermore, he has not alleged that he was
singled out for partisan-political reasons or that a class of similarly situated
employees that included him was singled out for partisan-political reasons. Given
that the appellant does not allege facts that, if proven, could constitute a
prohibited personnel practice, we find, as did the administrative judge below, that
his prohibited personnel practice claim is without merit. See ID at 14.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
5
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.
If you are interested in securing pro bono representation for your 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
6
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.