Carpenter v. Navy , 671 F. App'x 777 ( 2016 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SCOTT CARPENTER,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2016-2180
______________________
Appeal from the Merit Systems Protection Board in
No. DC-0752-13-2215-B-1.
______________________
Decided: December 7, 2016
______________________
SCOTT CARPENTER, Kensington, MD, pro se.
MICHAEL D. SNYDER, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.
AUSTIN.
______________________
Before HUGHES, SCHALL, and STOLL, Circuit Judges.
2 CARPENTER v. NAVY
PER CURIAM.
Scott Carpenter appeals the final decision of the Merit
Systems Protection Board affirming the Department of
the Navy’s decision to furlough him for six days. Because
the Board did not abuse its discretion in limiting
Mr. Carpenter’s interrogatory requests and because
substantial evidence supports the Board’s affirmance of
the furlough, we affirm.
I
Mr. Carpenter is a mechanical engineer at the Naval
Surface Warfare Center (NSWC), Carderock Division in
West Bethesda, Maryland. In response to the Balanced
Budget and Emergency Deficit Control Act of 2011, the
Navy furloughed Mr. Carpenter for six days. His appeal
was consolidated with the appeals of other employees at
NSWC Carderock.
Mr. Carpenter moved to compel responses to Inter-
rogatories 12 and 15. Interrogatory 12 requested “the
number of 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.”
Interrogatory 15 requested “information regarding the
process for determining the number of total furlough
hours for each employee.”
The Administrative Judge denied his motion to com-
pel, and Mr. Carpenter petitioned the Board for review.
The Board granted his motion but limited the scope of
Interrogatories 12 and 15 to only “similarly situated Navy
civilians.” J.A. 109–10. On remand, in response to Inter-
rogatory 12, the Agency provided records describing
overtime and compensatory hours for all NSWC Card-
erock ND scientists and engineers working at West Be-
thesda or the Washington Navy Yard. In response to
Interrogatory 15, the Agency provided documents “ex-
CARPENTER v. NAVY 3
plain[ing] in general terms the method by which the
agency decided to furlough employees and the amount of
hours that employees would be furloughed.” J.A. 345.
The Administrative Judge concluded that the Agency
complied with Mr. Carpenter’s discovery requests and had
met its burden of proving that the furlough promoted the
efficiency of the service. The Board affirmed.
Mr. Carpenter appeals the Board’s rulings on the scope of
discovery and the affirmance of the furlough. We have
jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
II
We review the Board’s decision to determine if it is:
“(1) arbitrary, capricious, an abuse of discretion, other-
wise not in accordance with law; (2) obtained without
procedures required by law, rule, or regulation having
been followed; or (3) unsupported by substantial evi-
dence.” 5 U.S.C. § 7703(c). For procedural matters such
as discovery, we will not overturn the Board “unless an
abuse of discretion is clear and is harmful.” Curtin v.
Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir.
1988).
The agency bears the burden of proving that a fur-
lough “will promote the efficiency of the service.” 5 U.S.C.
§ 7513(a). This means that the agency’s decision must “be
a reasonable management solution to the financial re-
strictions placed on the agency” and that the agency must
“determine which employees to furlough in a fair and
even manner.” Einboden v. Dep’t of Navy, 802 F.3d 1321,
1325 (Fed. Cir. 2015).
Accordingly, an agency must “treat similar employees
similarly.” Chandler v. Dep’t of Treasury, 2013 M.S.P.B.
163 ¶ 8 (2013). Whether an employee is similarly situat-
ed is based on reduction-in-force competitive level princi-
ples, id., which are “defined solely in terms of the agency’s
organizational unit(s) and geographical location.”
4 CARPENTER v. NAVY
5 C.F.R. § 351.402(b). Although Mr. Carpenter argues
that discovery regarding “similarly situated” employees
should include all furloughed employees in the Depart-
ment of Defense, the Board acted within its discretion by
limiting the Agency’s obligation to produce documents
under Interrogatory 12 to NSWC Carderock employees
working in similar occupations and geography.
The Board also acted within its discretion in accepting
the Agency’s response to Interrogatory 15. Mr. Carpenter
sought additional detailed information about how the
agency structured the furlough, which the Board conclud-
ed was beyond the scope of its review. We agree.
A furlough of less than thirty days is an adverse ac-
tion. 5 C.F.R. § 752.401(a)(5). “We give wide berth to
agency decisions as to what type of adverse action is
necessary to ‘promote the efficiency of the service,’ provid-
ed that the agency’s decision bears some nexus to the
reason for the adverse action.” Einboden, 802 F.3d at
1325–26. In Einboden, when faced with this exact ques-
tion, we determined that a Navy furlough responding to
the Balanced Budget and Emergency Deficit Control Act
of 2011 promoted the efficiency of the service because it
bore a nexus to an undisputed funding shortage. Id. at
1326. Further, this court may not “second guess agency
decisions as to how to prioritize funding when faced with
a budget shortfall.” Id. at 1325. Despite Mr. Carpenter’s
insistence that Einboden is incorrect, it binds this panel.
See, e.g., Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563
(Fed. Cir. 1991) (“[W]e note that decisions of a three-judge
panel of this court cannot overturn prior precedential
decisions.”). Because of the deference granted to agency
funding decisions, the Board did not abuse its discretion
in limiting the scope of Interrogatory 15.
For the same reason, we also find substantial evi-
dence supports the Board’s affirmance of the furlough.
Mr. Carpenter argues that the Agency must prove that
CARPENTER v. NAVY 5
the funding cuts directly impacted the particular funds
from which he was paid. We rejected this argument in
Einboden, where the petitioner argued “that the Navy
failed to show that his unpaid salary was used to meet a
budgetary shortfall and thus failed to demonstrate that
the furlough would ‘promote the efficiency of the service.’”
802 F.3d at 1325. Here, the agency satisfied the Ein-
boden standard by providing substantial evidence that the
furlough bore a nexus to an undisputed funding shortage.
Further, the Board found the Agency’s approval of over-
time was not connected to the furlough, and that the
agency structured the furlough in a fair and even manner.
Substantial evidence also supports this finding. Thus, the
Board did not commit reversible error in affirming the
furlough.
AFFIRMED
No costs.