Scott Carpenter v. Department of the Navy ( 2015 )


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  •                           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    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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
    .
    

Document Info

Filed Date: 5/11/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021