The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
SCOTT CARPENTER, DOCKET NUMBER
Appellant, DC-0752-13-2215-B-1
v.
DEPARTMENT OF THE NAVY, DATE: April 4, 2016
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Scott Carpenter, Kensington, Maryland, 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 remand initial decision,
which affirmed the furlough because it promoted the efficiency of the service.
Generally, we grant petitions such as this one only when: the initial decision
contains erroneous findings of material fact; the initial decision is based on an
erroneous interpretation of statute or regulation or the erroneous application of
1
A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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, 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 to supplement the administrative
judge’s conclusion that the agency applied the furlough in a fair and even manner,
we AFFIRM the remand initial decision.
BACKGROUND
¶2 The appellant, an ND-04 mechanical engineer at the agency’s Naval Surface
Warfare Center, Carderock Division, filed a Board appeal challenging the
agency’s decision to furlough him. Carpenter v. Department of the Navy, MSPB
Docket No. DC-0752-13-2215-I-1, Initial Appeal File (IAF), Tab 1. His appeal
was consolidated with the appeals of other similarly situated individuals who
were furloughed. NSSC II v. Department of the Navy, MSPB Docket
No. DC-0752-14-0845-I-1, Consolidation Appeal File (CAF), Tabs 1, 11. After
holding a hearing, CAF, Tab 12, Hearing Compact Diskette (HCD), the
administrative judge issued an initial decision in which he upheld the furlough
because it promoted the efficiency of the service, CAF, Tab 15, Initial Decision.
¶3 The appellant filed a petition for review. Carpenter v. Department of the
Navy, MSPB Docket No. DC-0752-13-2215-I-1, Petition for Review File, Tab 1.
The Board found that the administrative judge should have granted the appellant’s
discovery requests related to overtime given to similarly situated individuals,
vacated the administrative judge’s determination that the furloughs promoted the
3
efficiency of the service, and remanded the appeal for further adjudication.
Carpenter v. Department of the Navy, MSPB Docket No. DC-0752-13-2215-I-1,
Remand Order (May 11, 2015).
¶4 On remand, the administrative judge granted in part the appellant’s motion
to compel in accordance with the Board’s remand order. Remand File (RF),
Tab 3. In the remand initial decision, the administrative judge noted that he had
already determined that the agency was facing a lack of funds and that the
furlough constituted a reasonable management solution to the financial
restrictions placed on it. RF, Tab 19, Remand Initial Decision (RID) at 4, 6. The
administrative judge further found that overtime was not strictly prohibited, the
agency’s policy allowed it to be used judiciously, and the record did not establish
that the agency used it to offset the effects of the furlough on any individuals.
RID at 5-6. He therefore concluded that the furlough was applied in a fair and
even manner and that the furlough promoted the efficiency of the service. RID
at 6-7.
¶5 The appellant has filed a petition for review, the agency has filed a
response, and the appellant has filed a reply. Remand Petition for Review
(RPFR) File, Tabs 1, 4-5. The appellant also has filed a motion to accept his
petition for review filing as timely. RPFR file, Tab 3.
DISCUSSION OF ARGUMENTS ON REVIEW
¶6 On review, the appellant challenges the administrative judge’s discovery
rulings and analysis regarding Interrogatories 12 and 15 and his conclusion that
the furlough promoted the efficiency of the service. RPFR File, Tab 1 at 4-11.
The appellant also appears to assert that the administrative judge violated his due
process rights and was biased against him. Id. at 5, 9. We have considered these
arguments, but we conclude that a different outcome is not warranted. 2
2
In light of our disposition, we need not address the timeliness of the petition
for review.
4
The administrative judge’s discovery rulings did not constitute an abuse
of discretion.
¶7 The Board will not reverse an administrative judge’s rulings on discovery
matters absent an abuse of discretion. Wagner v. Environmental Protection
Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d 1236 (Fed. Cir. 1993)
(Table). The abuse of discretion standard is “a very high standard” and allows for
“great deference.” Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15
(2010) (citing Lipscomb v. Department of Defense, 69 M.S.P.R. 484, 487 (1996)).
We find no abuse of discretion in the administrative judge’s discovery rulings
regarding Interrogatories 12 and 15.
¶8 Regarding Interrogatory 12, the administrative judge below ordered the
agency to provide the number of “similarly situated” Navy civilians who worked
in excess of 64 hours per pay period during any pay period in which they were
furloughed and the total number of hours worked in excess of 64 hours per pay
period for those workers subject to furlough. RF, Tab 3 (italics in original). The
agency first provided information for all of the individuals in Code 80, the
appellant’s code section at the West Bethesda location. 3 RF, Tab 6 at 9, Tab 8
at 2. The agency subsequently agreed 4 to provide the appellant with the overtime
and compensatory hours records for all “ND” scientists and engineers employed
3
The deciding official testified that a “code” is “an organizational element” such as a
“group or team working in the same department.” HCD.
4
On review, the appellant challenges the administrative judge’s statement in the remand
initial decision that the parties agreed that the agency would turn over this information.
RPFR File, Tab 1 at 5-6; RID at 3. Rather, it appears from the Order and Summary of
Telephonic Status Conference that only the agency agreed to provide this information.
RF, Tab 8 at 2. Because we find no abuse of discretion in the administrative judge’s
discovery rulings, any error or misstatement in this regard does not prejudice the
appellant and does not warrant reversal of the remand initial decision. See Panter v.
Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
5
at West Bethesda or the Washington Navy Yard. RF, Tab 8 at 2. 5 It appears that
the administrative judge found that the agency’s production of information was
responsive to Interrogatory 12. Id.; RID at 3. On review, the appellant asserts
that the agency’s response was deficient because “similarly situated” means “all
furloughed employees.” RPFR File, Tab 1 at 6 (emphasis in original).
¶9 In evaluating whether individuals are similarly situated, it is appropriate to
apply reduction-in-force competitive level principles. Weathers v. Department of
the Navy, 121 M.S.P.R. 417, ¶ 8 (2014). Generally, a competitive area must be
defined solely in terms of the agency’s organizational unit(s) and geographical
location. Id. The minimum competitive area is a subdivision of the agency under
separate administration within the local commuting area. Id.; see 5 C.F.R.
§ 351.402(b).
¶10 The appellant’s broad reading of “similarly situated” is inconsistent with
this precedent. Rather, we find that the agency’s production of information
related to hours (overtime and otherwise) worked by scientists and engineers in
the appellant’s code section and pay band at the West Bethesda and Washington
Navy Yard locations satisfies its obligation to produce information regarding
similarly situated employees as requested in Interrogatory 12. We therefore find
no abuse of discretion.
¶11 Regarding Interrogatory 15, the administrative judge ordered the agency to
provide information regarding the process for determining the number of total
furlough hours for each employee who was “similarly situated” to the appellant.
RF, Tab 3 (italics in original). In response, the agency stated that it “followed the
direction provided from the Secretary of Defense . . . and the Department of the
Navy . . . and furloughed people accordingly.” RF, Tab 6 at 10. The agency also
directed the appellant to several submissions in its electronic administrative
5
The agency clarified that it would not provide information for any ND scientists and
engineers who worked for other commands but were located at West Bethesda or the
Washington Navy Yard. RF, Tab 9 at 4-5.
6
record. Id.; see Department of the Navy Administrative Record for FY 2013
Furlough Appeals, available at http://www.mspb.gov/furloughappeals/navy2013.
htm (Navy Administrative Record), Tabs 3, 6, 8, 12. We agree with the
administrative judge that the agency’s response complied with Interrogatory 15
because the cited documents explain in general terms the method by which the
agency decided to furlough employees and the amount of hours that employees
would be furloughed. RF, Tab 8 at 3. The appellant’s explanation on review that
he was seeking a formula that the agency used to calculate the number of furlough
hours for each agency working capital fund employee, RPFR File, Tab 1 at 10-11
(internal citations omitted), appears to be seeking information about how the
agency structured the furlough. Such information is beyond the scope of the
Board’s review. See Chandler v. Department of the Treasury, 120 M.S.P.R. 163,
¶¶ 35-36 (2013) (stating that there are many ways in which agency management
could structure the furlough but it is not the Board’s place to select from among
them). We similarly find no abuse of discretion in the administrative judge’s
conclusion that the agency complied with Interrogatory 15.
The furlough promoted the efficiency of the service.
¶12 An agency meets its burden of proving that a furlough promotes the
efficiency of the service by showing, in general, that the furlough was a
reasonable management solution to the financial restrictions placed on it and that
the agency applied its determination as to which employees to furlough in a fair
and even manner. In re Tinker AFSC/DP v. Department of the
Air Force, 121 M.S.P.R. 385, ¶ 14 (2014); Chandler, 120 M.S.P.R. 163, ¶ 8. In
our Remand Order, we affirmed the administrative judge’s conclusion that the
furloughs were a reasonable solution to the financial restrictions placed on the
agency. RF, Tab 1 at 4 (discussing Einboden v. Department of the
Navy, 122 M.S.P.R. 302, ¶ 15, aff’d, 802 F.3d 1321 (Fed. Cir. 2015)). 6 The only
6
Accordingly, we need not address the appellant’s argument to the contrary in his reply
brief. RPFR File, Tab 5 at 8.
7
issue before us is whether the agency determined which employees to furlough in
a fair and even manner.
¶13 To resolve this issue, we have considered the appellant’s arguments
regarding the agency’s approval of overtime during the furlough period. RPFR
File, Tab 1 at 6-9; see Chandler, 120 M.S.P.R. 163, ¶ 14 (stating that an agency’s
decision to award certain employees overtime pay may be relevant to whether the
agency applied the furlough uniformly and consistently). We modify the remand
initial decision to supplement the administrative judge’s analysis, but we agree
with his conclusion that the agency applied the furlough in a fair and
even manner.
¶14 The Board has held that an agency’s use of overtime payments to relieve
certain employees but not others of the financial consequences of the furlough
may be sufficient to show that the furlough did not meet the efficiency of the
service standard. Chandler, 120 M.S.P.R. 163, ¶ 14. The efficiency of the
service standard encompasses issues relating to the uniform and consistent
application of the furlough, including whether the agency used a furlough to
target employees for personal reasons or attempted to exempt certain employees
from the furlough without legitimate management reasons. Id., ¶ 9. The agency
must treat similar employees similarly and must justify any deviations with
legitimate management reasons. Id., ¶ 8.
¶15 The record reflects that the agency had a policy regarding overtime. RF,
Tab 18, Exhibit 1. The policy stated, in pertinent part, that “[o]vertime or
compensatory time shall be used judiciously, and only for the highest priority
tasks” and “overtime may not be used to compensate for lost productivity due to
[the] furlough.” Id. The Board has held that an agency’s decision to adopt a
policy under which it permitted the use of overtime to meet mission-critical needs
is a spending matter within the agency’s sound discretion. Kelly v. Department of
the Army, 121 M.S.P.R. 408, ¶ 13 (2014).
8
¶16 The appellant makes the following arguments on review: (1) the agency
did not follow this policy, as evidenced by the fact that “ten employees were
relieved by exactly the number of furlough hours they were assigned”; (2) the
agency failed to prove that it did not use overtime hours to relieve these ten
employees from the financial impacts of the furlough; and (3) the volume of
overtime hours worked by employees at Carderock Division “casts considerable
doubt” that the furlough promoted the efficiency of the service. RPFR File, Tab 1
at 6-8. We are not persuaded by these arguments.
¶17 The fact that ten similarly situated employees may have received the same
number of overtime hours as furlough hours does not—standing alone—warrant
the conclusion that overtime was given to alleviate the financial consequences of
the furlough or that the agency failed to follow its overtime policy. Rather, in
addition to the ten employees mentioned above, many other ND scientists and
engineers in code 80, including the appellant, 7 worked overtime hours during the
furlough period. RF, Tab 7 at 6-37, Tab 17 at 8-114. This evidence does not
support the appellant’s assertion that the agency’s use of overtime was improper. 8
See Department of Labor v. Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (stating that in
determining whether the agency structured a furlough in a fair and even manner,
the Board will not scrutinize an agency’s decision in such a way that second
7
The appellant worked 31 hours of overtime during the furlough period. RF, Tab 17
at 17.
8
We have considered the appellant’s assertion that the administrative judge violated his
due process rights by first finding that the other employees were similarly situated to
him but then concluding in the remand initial decision that he did not prove that the ten
employees were similarly situated. RPFR File, Tab 1 at 9; RID at 6. We modify the
remand initial decision to clarify that the burden is on the agency to prove that the
furlough promotes the efficiency of the service. See Chandler, 120 M.S.P.R. 163, ¶ 8.
We also assume for the purposes of our analysis that these ten individuals were
similarly situated to the appellant. However, for the reasons discussed herein, the
evidence as a whole supports the conclusion that the agency applied the furlough in a
fair and even manner.
9
guesses the agency’s assessment of its mission requirements and priorities), aff’d
sub nom. Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir. 2014).
¶18 In fact, there is no evidence that the agency’s approval of overtime was at
all connected to the furlough. The deciding official testified that he complied
with the guidance provided to him, including a May 21, 2013 Memorandum
which stated that Budget Scheduling Office Commanders “may not adjust
employee work schedules to replace lost productivity or lost compensation as a
result of the furlough.” HCD; Navy Administrative Record, Tab 8. 9 The
deciding official testified without contradiction that he determined which
employees to furlough based on whether the individual employee occupied a
position that had been excepted from the furlough. HCD; CAF, Tab 6 at 34-36.
The appellant has not identified on review any individual who was improperly
excepted from the furlough, nor does he assert that he should have been excepted
from the furlough.
¶19 Based on our review of the record, we conclude that the agency applied the
furlough fairly and evenly. See Rodgers v. Department of the Navy, 122 M.S.P.R.
559, ¶ 16 (2015) (affirming the administrative judge’s conclusion that the agency
fairly and evenly applied the furlough in the appellant’s situation because, among
other things, there was no indication in the record that the appellant or other Navy
Munitions Command employees were targeted for personal reasons or that the
agency exempted any employees without a legitimate management reason). We
also affirm the administrative judge’s conclusion that the furlough promoted the
efficiency of the service.
9
The May 21, 2013 Memorandum also referenced a February 21, 2013 Memorandum
which stated that major commands “may not use contract funding or premium pay (e.g.,
compensatory time or overtime) to offset lost time under the furlough.” Navy
Administrative Record, Tabs 8, 25.
10
The appellant did not prove administrative judge bias.
¶20 In making a claim of bias or prejudice against an administrative judge, a
party must overcome the presumption of honesty and integrity that accompanies
administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
382, 386 (1980). An administrative judge’s conduct during the course of a Board
proceeding warrants a new adjudication only if the administrative judge’s
comments or actions evidence “a deep-seated favoritism or antagonism that would
make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
555 (1994)). The appellant has not made such a showing.
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
The remand 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 review of this final decision by the U.S. Court of
Appeals for the Federal Circuit. 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
11
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 an appeal to
the U.S. 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.