UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
STEVEN RICHARD TURNER, 1 DOCKET NUMBER
Appellant, DC-0752-13-3401-I-1
v.
DEPARTMENT OF THE NAVY, DATE: May 20, 2015
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL 2
Steven Richard Turner, Alexandria, Virginia, 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 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. NSSC I v.
Department of the Navy, MSPB Docket No. DC-0752-14-0844-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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
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 and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
BACKGROUND
¶2 The appellant filed a Board appeal, challenging the agency’s decision to
furlough him for 6 days. Initial Appeal File (IAF), Tab 1 at 7-9 (notice of
proposed furlough), 10-14 (decision letter), 15 (furlough Standard Form 50); see
IAF, Tab 2. The appellant was informed that his appeal was consolidated with
the appeals of similarly situated employees. See NSSC I v. Department of the
Navy, MSPB Docket No. DC-0752-14-0844-I-1, Consolidated Appeal File (CAF),
Tab 1. On September 1, 2014, the appellant filed a motion to compel, which the
administrative judge denied because the record closed on August 29, 2014. See
IAF, Tabs 3-4. The administrative judge issued an initial decision, finding that
the furloughs promoted the efficiency of the service and concluding that the
appellants did not prove any of their affirmative defenses, including their
assertion that working capital fund (WCF) employees were exempt from
sequestration. CAF, Tab 9, Initial Decision (ID). The appellant has filed a
3
petition for review, the agency has filed a response, and the appellant has filed a
reply. Petition for Review (PFR) File, Tabs 1, 3-4.
DISCUSSION OF ARGUMENTS ON REVIEW
¶3 On review, the appellant challenges the administrative judge’s conclusion
regarding WCF employees. PFR File, Tab 1 at 4-8. He also contends that the
administrative judge abused his discretion when he denied the motion to compel,
and he appears to assert that he was confused about the timelines for filing such a
motion. See id. at 8-12. For the following reasons, the appellant has not
persuaded us that a different outcome is warranted.
¶4 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 its determination as to which
employees to furlough in a fair and even manner. Id., ¶ 8.
¶5 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, ¶¶ 7, 9,
13-18 (2015). In pertinent part, the Board stated in Einboden that, even if WCFs
were exempt from a sequestration order, “such an interpretation would not end
[the Board’s] 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 financial restrictions placed upon the agency, and noting
that it was reasonable for the Department of Defense to consider its budget
4
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 the agency met its burden of proof. Id., ¶ 18.
¶6 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 was
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. 3 The administrative judge’s findings that the agency
faced a lack of funds, that furloughs were a reasonable management solution to
this problem, and that the agency determined which employees to furlough in a
fair and even manner, see ID at 21-22, are supported by the record. We therefore
affirm his conclusions that the agency proved the factual basis for the furlough
and that the furlough promoted the efficiency of the service. See ID at 22.
¶7 Regarding the appellant’s assertion that the administrative judge improperly
denied his motion to compel, 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). The abuse of discretion standard is “a
very high standard” and it allows for “great deference.” Lipscomb v. Department
of Defense, 69 M.S.P.R. 484, 487 (1996).
¶8 We conclude that the administrative judge did not abuse his discretion when
he denied the appellant’s September 1, 2014 motion to compel because the record
closed on August 29, 2014. In the summary of telephonic status conference, the
3
In light of the Board’s decision in Einboden, we need not discuss the appellant’s
assertions that the administrative judge erroneously interpreted 2 U.S.C. § 905(g)(1)(A)
and that the administrative judge erred when he concluded that the Balanced Budget and
Emergency Deficit Control Act of 1985 d id not shield the WCF in question from
sequestration. See PFR File, Tab 1 at 5-6.
5
administrative judge advised the parties that “they must submit all evidence and
argument in this case on or before August 29, 2014,” and that responses will be
due “on or before September 5, 2014.” CAF, Tab 7 (emphasis in original). The
administrative judge further explained that, at that time, he would close the
record, and he would not allow for any more pleadings or submissions absent just
cause. Id.
¶9 The order closing the record also discussed these deadlines:
[T]he record in this appeal will close on August 29, 2014. All
evidence and argument must be filed by that date. Evidence and
related argument filed after that date will not be accepted unless the
party submitting the evidence shows that it is new and material
evidence that was not available before the record closed.
Notwithstanding the close of the record, however, pursuant
to 5 C.F.R. § 1201.58(c), a party must be allowed to respond to new
evidence or argument submitted by the other party just before the
close of the record. Any rebuttal must be received on or before
September 5, 2014.
CAF, Tab 8 (emphasis in original). Notably, the appellant did not object to either
of these orders or the timelines set forth therein.
¶10 Based on our review of these orders, the appellant had ample notice that the
record in the appeal closed on August 29, 2014, except for rebuttal evidence or
argument. His motion to compel can in no way be construed as rebuttal evidence
or argument. To the extent that the appellant was confused about the deadlines,
or he believed that he needed additional time to file a motion to compel, he could
have sought clarification from the administrative judge and/or filed a motion to
keep the record open. He did not take any such action, and we do not find that
the administrative judge abused his discretion in this regard. 4
4
It does not appear that the administrative judge ru led on the appellant’s motion to
reconsider regarding the denial of the motion to compel. See IAF, Tab 5. We DENY
that motion.
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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:
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 court
appeal, 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
7
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.