Einboden v. Navy , 802 F.3d 1321 ( 2015 )

United States Court of Appeals
for the Federal Circuit
______________________
GREGORY EINBODEN,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2015-3117
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-0959-I-1.
______________________
Decided: October 1, 2015
______________________
GREGORY EINBODEN, King George, VA, pro se.
AMANDA TANTUM, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
Before PROST, Chief Judge, DYK, and HUGHES, Circuit
Judges.
2 EINBODEN v. NAVY
DYK, Circuit Judge.
Gregory Einboden appeals a decision of the Merit Sys-
tems Protection Board (“the Board” or “MSPB”) denying
his petition for review and affirming the decision of the
Department of the Navy (“Navy”) to furlough him for six
days in July and August of 2013 pursuant to sequestra-
tion legislation. We find no reversible error in the Board’s
decision. Accordingly, we affirm.
BACKGROUND
This case arises as a result of sequestration legisla-
tion adopted by Congress. In August of 2011, Congress
passed the Balanced Budget and Emergency Deficit
Control Act of 2011 (“BBEDCA”), which called for auto-
matic across-the-board spending cuts if certain deficit
reduction legislation was not enacted by January 15,
2012. Congress failed to pass the necessary deficit reduc-
tion legislation, which triggered the required automatic
budget cuts starting March 1, 2013. Pursuant to the
BBEDCA, the Office of Management and Budget (“OMB”)
prepared a report for the Joint Committee Sequestration
for Fiscal Year 2013, which outlined OMB’s calculations
as to how the automatic budget cuts were to be made. See
2 U.S.C. § 901a. The reduction in spending authority for
the Department of Defense amounted to approximately
$37 billion and required the furlough of approximately
650,000 civilian employees.
Mr. Einboden is a civilian employee of the Navy, serv-
ing as counsel for the command group of the Naval Sur-
face Warfare Center Dahlgren Division (“Dahlgren”).
Dahlgren is a Navy working capital fund activity, which
means that it functions “entirely from the fees charged for
the services [provided] consistent with [its] statutory
authority.” U.S. GOV’T ACCOUNTABILITY OFF., GAO-05-
734SP, A GLOSSARY OF TERMS USED IN THE FEDERAL
EINBODEN v. NAVY 3
BUDGET PROCESS 101 (2005). When another government
agency asks Dahlgren for support, that agency transfers
money from its appropriation to the Dahlgren working
capital fund to compensate Dahlgren for its work on
behalf of the agency. See 10 U.S.C. § 2208 (authorizing
the creation of working capital funds). According to the
OMB report, sequestration is applied to the paying ac-
count and generally not to accounts like the Navy working
capital fund to the extent that its funds were received
from other agencies so that “the same dollars are not
sequestered twice.” 1 OFF. OF MGMT. AND BUDGET, OMB
REPORT TO THE CONGRESS ON THE JOINT COMMITTEE
SEQUESTRATION FOR FISCAL YEAR 2013 70 (2013).
On May 28, 2013, Mr. Einboden received a “Notice of
Proposed Furlough” advising him that the Navy intended
to furlough him for up to eleven days because of “the
extraordinary and serious budgetary challenges . . . , the
most serious of which is the sequester.” S.A. 158. On
June 3, Mr. Einboden responded to the notice, asserting
that Dahlgren was not subject to sequestration. The
Navy replied on June 24, finding that “the reasons for the
proposed furlough, as stated in the notice of the proposal,
remain valid.” S.A. 151. The furlough period for Mr.
Einboden, as for other civilian Navy employees, began on
July 8, 2015, though the furlough days were not consecu-
tive.
Because of other cost-cutting measures and repro-
gramming requests approved by Congress, the Depart-
ment of Defense was able to close the budget gaps more
easily than it had initially anticipated. On August 6, the
1 The Navy working capital fund had $24 million
from disaster funding, which was subject to sequestration
as a direct appropriation.
4 EINBODEN v. NAVY
Secretary of Defense announced that the furlough of
civilian defense employees would be reduced from 11 days
to six days. Though money saved by the six-day furlough
could have been transferred from the Navy working
capital fund to other activities with appropriate notice to
the congressional defense committees, see 10 U.S.C. §
2208(r)(1), no funds were transferred from Dahlgren’s
working capital fund as a result of the furloughs.
Mr. Einboden turned to the MSPB, asserting that the
Navy had improperly furloughed him. An administrative
judge (“AJ”) heard a consolidated appeal from all civilian
employees of Dahlgren. The AJ upheld the appeal from
the decision furloughing Mr. Einboden, finding (among
other things) that the furlough was a “reasonable man-
agement solution to the financial issues facing the agen-
cy” and that the notice of proposed furlough was not
procedurally deficient. S.A. 32, 47.
Mr. Einboden then petitioned the full Board for re-
view. The Board denied review and affirmed the decision
of the AJ upholding the furlough. The majority of the
Board noted that “although [Dahlgren] may have had
adequate funding to avoid a furlough . . . , it was reasona-
ble for DOD to consider its budget holistically, rather
than isolating the situation of each individual Navy.”
S.A. 9. Accordingly, “the agency was not required to show
that any of the funds saved from the appellant’s furlough
actually left [Dahlgren] to be used for other DOD pur-
pose.” S.A. 11. One member dissented on this point,
contending that “there must be at least some indication
that it was reasonably foreseeable that the savings from
the furlough would address the budgetary challenges.”
S.A. 15. Mr. Einboden now petitions for review of the
Board’s decision.
EINBODEN v. NAVY 5
We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9). This court’s authority to review a decision of
the Board is prescribed by statute. Specifically, we must
affirm unless the Board’s decision is “(1) arbitrary, capri-
cious, an abuse of discretion, or otherwise not in accord-
ance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C. § 7703(c).
DISCUSSION
Among the statutory protections with respect to ad-
verse employment actions for government employees is
section 7513 of title 5 of the United States Code, which
states that “[u]nder regulations prescribed by the Office of
Personnel Management, an agency may take an [adverse
action] against an employee only for such cause as will
promote the efficiency of the service.” 5 U.S.C. § 7513(a).
Further, an employee must be provided written notice
that must “stat[e] the specific reasons for the proposed
[adverse] action,” an opportunity “to answer” and provide
“documentary evidence in support of the answer”, and a
“written decision.” 5 U.S.C. § 7513(b). A furlough of less
than thirty days is an adverse action. 5 C.F.R.
§ 752.401(a)(5). The six-day furlough of Mr. Einboden
was thus an adverse action. The Navy was required to
establish that that the action “will promote the efficiency
of the service.” 5 U.S.C. § 7513(a).
Mr. Einboden contends that the Navy working capital
fund was not subject to sequestration pursuant to the
OMB report. Because Dahlgren’s funds were not seques-
tered, Dahlgren never was facing a budgetary shortfall,
and therefore the Navy cannot demonstrate that his
furlough promoted the efficiency of the service.
We reject Mr. Einboden’s contention that Dahlgren
could not have reasonably anticipated a shortage of
6 EINBODEN v. NAVY
funding at the time the decision to furlough was made
and that Dahlgren’s budget is unaffected by agency-wide
cuts. While working capital funds were treated as being
exempt from sequestration, 2 sequestration was applied to
agencies that would be paying working capital fund
entities (like Dahlgren). When agencies ordering services
from Dahlgren had their budgets sequestered, those
agencies could and would prioritize their spending, and
Dahlgren could have anticipated receiving less funding
from those agencies and thus suffering a funding short-
fall. The flexibility from the furlough of working capital
fund employees allowed the Navy to potentially “address
other higher-priority budgetary needs,” S.A. 11-12, by
transferring money from the working capital fund pursu-
ant to 10 U.S.C. § 2208(r)(1).
Mr. Einboden contends 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.” We reject
Mr. Einboden’s contention that the Navy be required to
show actual re-programming of the funds saved by his
furlough. It is not our role to second guess agency deci-
sions as to how to prioritize funding when faced with a
budget shortfall. See Berlin v. Dep’t of Labor, 772 F.3d
890, 894–95 (Fed. Cir. 2014). The Board interpreted the
statute’s requirement that the furlough “will promote the
efficiency of the service” as requiring that the decision be
a reasonable management solution to the financial re-
strictions placed on the agency and that the agency de-
termine which employees to furlough in a fair and even
2 We accept, without deciding, the position that the
Navy working capital fund was not subject to sequestra-
tion as the OMB report suggests.
EINBODEN v. NAVY 7
manner. S.A. 32. This interpretation is correct. It is
immaterial whether subsequent events ameliorated these
concerns. These management decisions are inherently
prospective. See Cross v. Dep’t of Transp., 127 F.3d 1443,
1447 (Fed. Cir. 1997).
We give wide berth to agency decisions as to what
type of adverse action is necessary to “promote the effi-
ciency of the service,” provided that the agency’s decision
bears some nexus to the reason for the adverse action.
See Doe v. Dep’t of Justice, 565 F.3d 1375, 1379 (Fed. Cir.
2009) (an agency meets the “efficiency of the service”
standard when it demonstrates the existence of a nexus
between the reason for adverse action and the work of an
agency); Webster v. Dep’t of Army, 911 F.2d 679, 685 (Fed.
Cir. 1990) (when deciding what penalty for misconduct
promotes the efficiency of the service “deference is given
to the agency’s judgment . . . unless . . . it amounts to an
abuse of discretion” (alterations, citations, and internal
quotation marks omitted)). We have also accepted the
very standard utilized by the Board here under similar
circumstances. See Berlin, 772 F.3d at 894–95. The
Navy’s decision has not been shown to be unreasonable.
We also reject Mr. Einboden’s argument that the Na-
vy implemented the furloughs unfairly because he was
treated differently than other civilian employees. Mr.
Einboden makes no claim that he was treated differently
than other employees in the Navy, but instead alleges
that he was treated differently than other civilians in the
Air Force—contrary to the requirement that the furlough
be implemented in a “fair and even manner.” See Chan-
dler v. Dep’t of the Treasury, 120 M.S.P.R. 163, ¶8 (2013).
When the DOD made the decision to perform furloughs in
response to the budget shortfall, it mandated a furlough
of all civilian employees except certain categories—
leaving it to the various sub-agencies to make decisions as
8 EINBODEN v. NAVY
to which employees were exempt from sequestration. The
specific decision to furlough Mr. Einboden was made by
the Navy. The Navy was not obligated to implement the
DOD directive in the same way as the Air Force, assum-
ing the Navy’s decision was consistent with DOD guid-
ance (and here there is no contention that it is not).
Management decisions as to which individual employees
to furlough in the face of budget shortfalls are within the
sound discretion of agency officials, see, e.g., Berlin, 772
F.3d at 896, and the Navy did not act arbitrarily nor
capriciously in making a different decision than the Air
Force in implementing the DOD guidance.
Finally, we find Mr. Einboden’s contentions alleging
procedural deficiencies in the notice to furlough to be
without merit.
AFFIRMED
COSTS
No costs.