                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     FRANK A. PUTZU, 1                               DOCKET NUMBER
                   Appellant,                        DC-0752-13-5887-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 2, 2015
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 2

           Frank A. Putzu, Alexandria, Virginia, pro se.

           Linda L. Tiller, John D. Norquist and Jeffrey A. Epstein, Esquire,
             Washington, D.C., 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, NAVSEA v.
     Department of the Navy, MSPB Docket No. DC-0752-14-0646-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 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.          Except as
     expressly MODIFIED by this Final Order, which provides additional support for
     the administrative judge’s finding that the appellant did not qualify for an
     exception to the furlough, and clarifies that the burden is on the agency to prove
     “cause” for the action, we AFFIRM the initial decision.
¶2         After a hearing, the administrative judge held that the agency proved that it
     had to make significant spending cuts because of sequestration 3 and that the
     furlough helped the agency avoid a deficit. NAVSEA v. Department of the Navy,
     MSPB Docket No. DC-0752-14-0646-I-1, Consolidation Appeal File (CAF),
     Tab 19, Initial Decision (ID) at 15-16. The administrative judge also found that
     the furlough was a reasonable management solution to the financial issues facing
     the agency and promoted the efficiency of the service. ID at 16. In this regard,
     the administrative judge rejected the arguments that the agency could have taken
     other measures to avoid the furlough, the budget cuts did not affect the ability of
     the Department of the Navy (Navy) to protect national security, and funds could
     not be reprogrammed, finding that these arguments were based on spending

     3
      The term “sequestration” refers to the cancellation of budgetary resources provided by
     discretionary appropriations or direct spending law. See Salo v. Department of Defense,
     122 M.S.P.R. 417, ¶ 2 (2015).
                                                                                        3

     matters within the agency’s sound discretion. Id. The administrative judge also
     held that the agency imposed the furloughs uniformly. Id.
¶3        The administrative judge held that, although the appellant asserted that he
     should have been exempt from the furlough under an exemption for “Shipyard
     Workers, Nuclear and Naval Reactors Staff,” see CAF, Tab 2; see also
     Department of the Navy Administrative Record for FY 2013 Furlough Appeals,
     Tab 12 at 105, 108-09, available at http://www.mspb.gov/furloughappeals/navy
     2013.htm, because he serves as Counsel for the Office of Naval Reactors and was
     therefore a member of the Naval Reactors staff, the appellant was actually an
     employee of the Naval Sea Systems Command’s (NAVSEA’s) Office of General
     Counsel (OGC), not the Office of Naval Reactors, which was one of his clients,
     ID at 18-19. The administrative judge further concluded that the appellants did
     not prove harmful error or a violation of their due process rights. ID at 19-20.
¶4        The appellant contends on review that the agency initially identified his
     position as having met the criteria for an exception to the furlough, testimony and
     his position description show that he qualified for the exception as “Naval
     Reactors Staff,” the term “staff” does not only mean “employee,” and there is
     nothing improper or unusual for a Navy employee to be on the staff of different
     Navy organizations. Petition for Review (PFR) File, Tab 1 at 7, 10-11, 17. The
     appellant asserts that “he is an employee of the Department of the Navy, a
     member of OGC, paid from funds apportioned to NAVSEA (the same as Navy
     employees assigned to NAVSEA 08), and works on the staff of Naval Reactors.”
     Id. at 17. The agency asserts that the evidence shows that the appellant was not
     an employee of the Office of Naval Reactors. PFR File, Tab 3 at 8.
¶5        An agency may furlough an employee for 30 days or less “only for such
     cause as will promote the efficiency of the service.”        5 U.S.C. §§ 7512(5),
     7513(a). 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.            Dye v. Department of the
                                                                                         4

     Army, 121 M.S.P.R. 142, ¶ 9 (2014). The agency has the burden of proof on this
     issue.     Id., ¶¶ 9-10; see In re Tinker AFSC/DP v. Department of the Air
     Force, 121 M.S.P.R. 385, ¶¶ 14-15 (2014).           Here, the administrative judge
     correctly found that the agency met its burden of proof by preponderant
     evidence. 4
¶6            In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
     Department of Defense (DOD) Furlough Exceptions that included, for the Navy,
     1,657 individuals identified only as “Shipyard Workers, Nuclear and Naval
     Reactors Staff.” Department of the Navy Administrative Record for FY 2013
     Furlough Appeals, Tab 12 at 105, 108-09.
¶7            The appellant’s position description indicates that his position of “Counsel,
     Naval Reactors,” exists within the Navy’s OGC (first subdivision), Counsel,
     NAVSEA (second subdivision), Office of Counsel (third subdivision).            Initial
     Appeal File (IAF), Tab 2 at 12. The position description further notes that the
     position is “within the Office of Counsel, Naval Sea Systems Command,” and that
     the NAVSEA Office of Counsel is responsible for providing legal advice,
     services and representation, and giving necessary legal approvals, opinions, and
     interpretations to NAVSEA and its field activities, affiliated Program Executive
     Officers, Direct Reporting Program Managers, and the Director, Naval Reactors.
     Id. at 13.     In addition, the position description provides that the appellant’s
     position “is a Section Head within the NAVSEA Office of Counsel, and the
     primary legal subject matter expert and a senior advisor to the Director, Naval
     Reactors.” Id. at 14. The appellant testified that his performance appraisals, at
     least in part, as well as any disciplinary actions that would be taken against him,
     were to be acted upon by individuals within OGC, not Naval Reactors. Hearing
     Transcript (HT) at 111-13. He also testified that he considered Naval Reactors to

     4
       Preponderant evidence is the degree of relevant evidence that a reasonable person,
     considering the record as a whole, would accept as sufficient to find that a contested
     fact is more likely to be true than untrue. 5 C.F.R. § 1201.56(c)(2).
                                                                                        5

     be his client in his capacity as an attorney. HT at 113-14. The fact that the
     appellant’s position officially exists within OGC, not within Naval Reactors, and
     provides legal advice, services, and representation to Naval Reactors, as well as
     the involvement of OGC in matters affecting the appellant’s employment, all
     support the administrative judge’s determination that the appellant’s position falls
     within the staff of OGC, rather than “Naval Reactors Staff.”
¶8         In addition, the deciding official, who was the Executive Director of
     NAVSEA, testified in a separate Board appeal that he interpreted the phrase
     “Naval Reactors Staff” in the May 14, 2013 Secretary of Defense memorandum as
     referring to the “C08 Headquarters department, of which I was not the deciding
     official for those employees,” which referred to Naval Reactors. IAF, Tab 10
     at 9, 12-13 (transcript pages 7-8, 21-22). He testified in the instant appeal that an
     employee is either “bureaucratically coded” in Naval Reactors or not so coded.
     HT at 53. He also testified that the appellant’s position was “a NAVSEA position
     with counsel being assigned by NAVSEA to” Naval Reactors, and that the
     appellant’s position was an “OOL code,” while employees in Naval Reactors had
     an “08 code.” HT at 62-63. OOL is NAVSEA’s legal department, which is not a
     part of 08, which in turn refers to Naval Nuclear Propulsion. HT at 78-79. The
     deciding official testified that, because the appellant was not a NAVSEA 08
     employee, the Deputy Director, Naval Reactors, did not have the authority to
     advocate for an exemption for the appellant from the furlough. HT at 188-90.
¶9         The Deputy Director, Naval Reactors, testified that, when Naval Reactors
     had initially recommended that the appellant be excepted from the furlough, it
     was arguing for NAVSEA “on their behalf,” and that he believed he had the
     authority to take that position on behalf of NAVSEA.           IAF, Tab 15 at 13
     (transcript page 31). He also indicated, however, that there was no guidance
     provided to him specifically indicating that he could seek a waiver or attempt to
     seek a waiver for the appellant. Id. at 28 (transcript page 91).
                                                                                     6

¶10        Further, in a June 19, 2013 email from NAVSEA to the Deputy Director,
      Naval Reactors, in response to his request for an opinion regarding the term
      “Naval Reactors Staff,” NAVSEA indicated that the term referred to the
      106 positions at headquarters that were identified in an attached exemption
      request for Naval Reactor employees. IAF, Tab 15 at 50. The email provides:
            The Furlough exemption request was submitted by NR [Naval
            Reactors] on 6 March 2013 and endorsed by the VCNO [Vice Chief,
            Naval Operations] on 21 March. The request was for 1,657 NR
            employees; 1,551 at the four shipyards, and 106 at NR headquarters.
            The request regarding the HQ employees consisted of 103 Nuclear
            Engineers, 1 Logistics Management Specialist, 1 Health Physicist,
            and 1 Operations Manager. On 14 May 2013, SECDEF issued a
            memorandum directing DoD activities to prepare for furlough. The
            memorandum contains an attachment specifying the final
            dispositions on furlough exemptions. The only language in the
            attachment relative to this issue is the exemption of 1,657 “Shipyard
            Workers, Nuclear and Naval Reactors Staff.” Presumably these are
            the same 1,657 employees listed in the Navy’s March furlough
            exemption request. Shipyard Workers refers to the 1,551 NR
            Shipyard employees; Naval Reactors Staff refers to the 106
            exempted employees at NR HQ.
            I conferred with . . . [the] Assistant General Counsel for M&RA
            [Manpower & Reserve Affairs]. He concurs that Naval Reactor Staff
            refers to the 106 employees identified in the exemption request.
      Id. All of this evidence further supports the administrative judge’s finding that
      the appellant did not fall within the exception for “Naval Reactors Staff.”
¶11        Even assuming, however, that the Counsel, Naval Reactors position was a
      part of “Naval Reactors Staff” for purposes of the furlough exception, the record
      reflects that Naval Reactors determined, before the issuance of the Secretary of
      Defense’s May 14, 2013 memorandum and the start of the furloughs, that the
      appellant’s position would not be included among the 106 exceptions from Naval
      Reactors headquarters.    As suggested by the email quoted above, before the
      issuance of the May 14, 2013 memorandum from the Secretary of Defense setting
      forth the exceptions from the furlough, Naval Reactors requested on March 21,
      2013, from the Office of the Secretary of Defense and had approved by DOD only
                                                                                          7

      106 exceptions from the furlough for Naval Reactors Headquarters employees,
      including 102 Nuclear Engineers, 1 Information Technology Specialist, 1 Health
      Physicist, 1 Logistics Management Specialist, and 1 Operations Manager; this did
      not include the position of Counsel, Naval Reactors, which was eliminated from
      the request because the position was not critical to responding to a nuclear
      emergency. CAF, Tab 8 at 20-31, 40-46. The Deputy Director, Naval Reactors,
      testified in a deposition that, after Naval Reactors made a recommendation for
      exemptions from the furlough that included the appellant, “we got some feedback
      from someone in leadership that came back and requested that the number be
      reduced [from 121] again [to] those folks only responsible for life and safety
      requirements and work on a recallable basis.” IAF, Tab 15 at 13, 17 (transcript
      pages 31, 46-47). He testified that the “waiver exception folks never worked to
      our criteria,” but instead “had their own set of criteria which was very specific to
      life and safety issues,” and that “I don’t think anyone within the secretariat ever
      agreed with our three criteria as being something on which to base the waiver.”
      Id. at 17 (transcript pages 47, 49). He further testified that he, along with several
      other individuals, edited the list of 121 employees down to 106, eliminating the
      appellant’s position based on guidance received indicating that Naval Reactors
      should assume it could recall individuals from the furlough if necessary and
      except from the furlough only those positions involved in “immediate health or
      life and safety,” which did not include the appellant’s position.           Id. at 27
      (transcript pages 87-88). He further testified that no one specifically told him to
      take the appellant off the list of exempt employees, but by position, “it didn’t fit
      in the last set of criteria we had handed to us.” Id. at 29 (transcript page 97).
¶12         Based on the initial decision and the analysis set forth above, we find that
      the administrative judge correctly determined that the agency proved by
      preponderant evidence that the appellant was subject to, and not excepted from,
      the furlough. See Dye, 121 M.S.P.R. 142, ¶ 9.
                                                                                      8

¶13         The appellant also asserts that the administrative judge improperly denied
      his motion to compel the production of evidence, including his request to take the
      depositions of the Vice Chief, Naval Operations, and the Assistant Secretary of
      the Navy for Manpower and Reserve Affairs, that he claims would have shown
      why the agency determined that he did not meet the “Naval Reactors Staff”
      exception, and improperly prohibited him from submitting evidence from the
      DOD official who handled that exception, as well as evidence showing that a
      March 21, 2013 memorandum setting forth the exception criteria represented “the
      binding position of the agency.” PFR File, Tab 1 at 11-14.
¶14         An administrative judge has wide discretion to exclude evidence and
      witnesses when it has not been shown that such evidence and testimony would be
      relevant,   material,   and   nonrepetitious.    Fox    v.   Department   of   the
      Army, 120 M.S.P.R. 529, ¶ 42 (2014); see 5 C.F.R. § 1201.41(b)(10). The Board
      will not reverse an administrative judge’s rulings on discovery matters, including
      a motion to compel, absent an abuse of discretion. Fox, 120 M.S.P.R. 529, ¶ 42.
      In an order denying the appellant’s motion to compel discovery, the
      administrative judge found that “whether the appellant should have been included
      on a list of excepted Naval Reactors employees is not relevant to this proceeding
      because the appellant was not a Naval Reactors employee.” IAF, Tab 13 at 2. As
      set forth above, the appellant has shown no error in that determination. Thus, the
      appellant has shown no abuse of discretion in the denial of discovery.
¶15         The appellant contends that the deciding official failed to consider
      documentation he attached to his reply to the proposal notice suggesting that he
      met the exception to the furlough for “Naval Reactors Staff,” and that the
      administrative judge improperly placed the burden of proving that there was
      “cause” for the action on him, rather than on the agency.        PFR File, Tab 1
      at 19-23. Given our finding that the appellant did not constitute “Naval Reactors
      Staff,” the deciding official correctly concluded that the documentation in
      question was not relevant to his determination to furlough the appellant. See HT
                                                                                           9

      at 42-43 (testimony of the deciding official that, when he received a written reply
      that cited documents, “if I thought they were relevant, I would have probably
      asked for them, but where it was very clear or there wasn’t a case to be made –
      really, what I was looking for in the replies was if it fit into one of the categorical
      exceptions. That is really the latitude I had as the deciding official.” “If it was
      relevant to that, I would have asked for it. If it wasn’t, I was going to make a
      final decision and move on.”).       Moreover, the administrative judge did not
      improperly place the burden of proving “cause” on the appellant. Although the
      administrative judge’s analysis of this issue does fall under a subheading that
      references affirmative defenses and includes a discussion of the appellants’
      harmful error and due process claims, the administrative judge cited and applied
      the correct standard in this case, i.e., that the agency bears the burden of proving
      the factual basis for the furlough and that the furlough promoted the efficiency of
      the service. ID at 14-17, 18-19, 21. In any event, to the extent that the initial
      decision may be unclear on this issue, we find, as set forth above, that the agency
      has met its burden of proof in this regard.
¶16         Finally, the appellant asserts that the agency provided on appeal to the
      Board documentation in support of its action, such as a document entitled
      “Department of the Navy Administrative Furlough Guidance for Proposing and
      Deciding Officials,” that it did not make available to him when it proposed his
      furlough. PFR File, Tab 1 at 4 n.1, 25-27. An agency’s proposal notice must
      state the specific reasons for the proposed action and inform the employee of his
      or her right to review the material relied on to support the reasons for the action
      given in the notice. 5 C.F.R. § 752.404(b)(1). Here, the agency’s proposal notice
      informed the appellant that supporting material for the action could be found at a
      specified agency website. IAF, Tab 5 at 19. The appellant has not alleged that
      the deciding official relied upon the above document in taking the furlough
      action. Even assuming, however, that the appellant established a procedural error
      by the agency in this regard, he has not shown that any error likely caused the
                                                                                   10

agency to reach a conclusion different from the one it would have reached in the
absence or cure of the error. See 5 C.F.R. § 1201.56(c)(3).

                   NOTICE TO THE APPELLANT REGARDING
                      YOUR FURTHER REVIEW RIGHTS
     The 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 the United States Court of Appeals for the Federal Circuit to review this
final decision.    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.
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     If you are interested in securing pro bono representation for an appeal to the
United States 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.
