                             UNITED STATES OF AMERICA
                          MERIT SYSTEMS PROTECTION BOARD


     IN RE AFRL GROUP 5 HEARING,                        DOCKET NUMBER
                   Appellant,                           NY-0752-14-0096-I-1 1

                     v.

     DEPARTMENT OF THE AIR FORCE,                       DATE: November 16, 2015
                 Agency.



               THIS FINAL ORDER IS NONPRECEDENTIAL 2

              Ralph L. Kohler, Jr., Oneida, New York, for the appellants.

              Aaron Roberts, Joint Base Andrews, Maryland, for the agency.


                                              BEFORE

                                 Susan Tsui Grundmann, Chairman
                                    Mark A. Robbins, Member


                                          FINAL ORDER

¶1           The appellants have filed a petition for review of the initial decision, which
     sustained their furloughs from employment pursuant to sequestration. Generally,
     we grant petitions such as this one only when:             the initial decision contains
     erroneous findings of material fact; the initial decision is based on an erroneous

     1
         The appellants who are included in this consolidation are set forth in Appendix A.
     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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     interpretation of statute or regulation or the erroneous application of the law to
     the facts of the case; the administrative 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, we conclude that
     the petitioners have 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).
¶2         The appellants serve in various positions with the agency at the Air Force
     Research Laboratory in Rome, New York. The agency proposed to furlough each
     of the appellants for no more than 11 days due to the budget shortfall resulting
     from the President’s March 1, 2013 sequester order. See Consolidation Appeal
     File (CAF), Tab 5 at 60-61. After giving the appellants an opportunity to respond
     to the proposed furlough, the agency issued decision letters imposing an 11-day
     furlough, which it subsequently reduced to no more than 6 days. Id. at 56-57
     (decision letter), 49-50 (Secretary of Defense’s memorandum reducing the
     number of furlough days).
¶3         The appellants filed timely appeals of their furloughs, which the
     administrative judge consolidated.      CAF, Tab 1.      Following a hearing, the
     administrative judge issued an initial decision sustaining the agency’s furlough
     action.   CAF, Tab 15, Initial Decision (ID).         In her initial decision, the
     administrative judge found that the agency established its need to furlough the
     appellants as a result of sequestration and that the furlough promoted the
     efficiency of the service. ID at 9. The administrative judge further rejected the
     appellants’ argument that the furlough was unreasonable because none of the
                                                                                             3

     savings that resulted from their furloughs was used to offset the agency’s
     operations and maintenance (O&M) budget shortfall. ID at 9-10 (citing Yee v.
     Department of the Navy, 121 M.S.P.R. 686 (2014)). Lastly, the administrative
     judge concluded that the agency imposed the furlough in a fair and even manner
     despite the fact that employees who performed similar work were exempt from
     the furlough because they were paid from National Intelligence Program (NIP)
     funds, a category of funding not subject to sequestration. ID at 10.
¶4         The appellants have filed a petition for review of the initial decision.
     Petition for Review (PFR) File, Tab 1. On review, the appellants primarily renew
     their argument that any specific cost savings that resulted from their furloughs
     was not used to offset the agency’s O&M budget shortfall because the agency
     lacked Congressional authority to transfer such savings. PFR File, Tab 1 at 5-7
     (citing 31 U.S.C. § 1301). In support of this argument, the appellants maintain
     that the administrative judge denied them the opportunity to present evidence on
     this issue when she precluded them from questioning an agency witness about the
     savings that resulted from the furloughs, and whether such savings were
     transferred to the O&M budget. Id. at 8. The agency has filed a response in
     opposition to the petition for review, and the appellants have filed a reply. 3 PFR
     File, Tabs 9, 15.



     3
       The record reflects that after filing their petition for review 1 day late, on July 21,
     2015, the appellants subsequently filed a motion requesting that the Board accept their
     petition for review as timely. PFR File, Tabs 1, 9. In light of the circumstances of this
     appeal, and in the interests of addressing the merits of the appellants’ claims on review,
     we grant the appellants’ motion and accept the petition for review as timely filed. On
     July 23, 2015, the agency filed a response to the petition for review and simultaneously
     requested that the Board accept the response as timely. PFR File, Tab 11. Because the
     Board issued an amended acknowledgment letter on July 15, 2015, indicating that the
     agency’s deadline to file a response was July 24, 2015, and because the agency filed its
     response on July 23, 2015, we find that the agency’s response was timely filed. PFR
     File, Tabs 6, 11. Finally, we note that the appellants’ reply to the agency’s response
     was timely filed, as the Office of the Clerk of the Board previously issued an order
     granting the appellants’ request for an extension of time and they filed their reply by
                                                                                       4

¶5        The Board has found that an agency meets its burden of proving that a
     furlough promotes the efficiency of the service by showing, in general, 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. In re Tinker AFSC/DP v. Department of
     the Air Force, 121 M.S.P.R. 385, ¶ 14 (2014). A “fair and even manner” means
     that the agency applied the adverse action furlough uniformly and consistently.
     Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 8 (2013). Proving
     that the furlough was imposed in such a manner, however, does not mean that the
     agency must satisfy the Board’s sense of equity. Id. Rather, the agency must
     show that it treated similar employees similarly, and it must justify any deviations
     with legitimate management reasons. Id.
¶6        The Board, moreover, has held that the efficiency of the service standard for
     a furlough action must be judged from the viewpoint of the Department of
     Defense (DOD), and not from the individual military departments under its
     authority. See Yee, 121 M.S.P.R. 686, ¶¶ 13-14. In Yee, the Board sustained the
     furlough action upon finding that it was reasonable for the DOD to consider its
     budget situation holistically, rather than considering each military department’s
     situation individually.   Id.   Additionally, in Einboden v. Department of the
     Navy, 122 M.S.P.R. 302, ¶ 18 (2015), the Board explained that an agency is not
     required to show that any funds saved from an employee’s furlough were actually
     used for any other purpose; instead, the Board found that, to meet the efficiency
     of the service standard, it is enough for the agency to show that the furlough
     action was a reasonable management solution at the time the action was taken.
     The U.S. Court of Appeals for the Federal Circuit recently issued a precedential
     decision affirming Einboden, finding that an agency is not “required to show
     actual re-programming of the funds saved by [an employee’s] furlough.”          See

     the new deadline set forth by the Office of the Clerk of the Board. PFR File,
     Tabs 13-15.
                                                                                                5

     Einboden v. Department of the Navy, No. 2015-3117, 2015 WL 5730370, at *3
     (Fed. Cir. Oct. 1, 2015).
¶7           Applying these standards, we agree with the administrative judge that the
     agency established cause for taking the furlough action based upon the March 1,
     2013 sequester order and the resulting budget shortfall, and that the agency’s
     furlough promoted the efficiency of the service.                   ID at 9-10.   Under both
     Einboden and Yee, the DOD was entitled to consider its budget situation
     holistically in determining whether it needed to furlough civilian employees, and
     the agency was not required to prove that the specific funds saved from the
     appellants’    furloughs     were     transferred     into   the     O&M     budget.     See
     Einboden, 122 M.S.P.R. 302, ¶¶ 15-16; Yee, 121 M.S.P.R. 686, ¶ 14.                      The
     appellants’ argument that the agency failed to show that the savings from their
     furloughs was used to supplement the O&M budget thus does not present a basis
     for     overturning   the   initial   decision   or    reversing      the   furlough.    See
     Einboden, 122 M.S.P.R. 302, ¶ 18; see also Einboden, No. 2015-3117, 2015
     WL 5730370, at *3 (explaining that an agency does not need to “show actual
     re-programming of the funds saved by the furlough”).
¶8           We further find no error with the administrative judge’s decision to exclude
     testimony concerning the transfer of funds to the O&M budget. PFR File, Tab 1
     at 8.    Administrative judges have broad discretion to regulate the proceedings
     before them, including the authority to rule on discovery motions and to exclude
     witness testimony that is irrelevant, immaterial, or redundant.                  See Defense
     Intelligence Agency v. Department of Defense, 122 M.S.P.R. 444, ¶ 16 (2015);
     Gregory v. Federal Communications Commission, 79 M.S.P.R. 563, ¶ 15 (1998).
     Because the agency was not required to prove that any funds saved from the
     furlough were used for another DOD purpose, see Einboden, 122 M.S.P.R. 302,
     ¶ 18, the administrative judge acted within her discretion in limiting the scope of
     testimony during the hearing.
                                                                                       6

¶9          We also find no merit to the appellants’ argument that the furlough was not
      imposed in a fair and even manner because similar employees, who were paid
      from a different funding source, were not furloughed.      ID at 10.   In Defense
      Intelligence Agency v. Department of Defense, the Board addressed whether
      appellants who might be better aligned with employees who were performing
      NIP-related functions, but who were paid with non-NIP funds, should have been
      exempted from the furlough, see 122 M.S.P.R. 444, ¶¶ 8, 11-12. In rejecting the
      appellants’ challenge to their furloughs in that case, the Board recognized that
      agencies have the authority to exempt certain employees from the furlough,
      provided that the agency has not targeted employees for personal reasons or
      exempted others without a legitimate management reason. Id., ¶ 11; see Lopez v.
      Department of the Navy, 121 M.S.P.R. 647, ¶ 15 (2014). We concur with the
      administrative judge that the different source of funding for the exempted
      employees provides a legitimate management reason for their differing treatment,
      and the appellants have presented no argument on review that they were targeted
      by the agency for personal reasons in connection with the furlough.            See
      Lopez, 121 M.S.P.R. 647, ¶ 18 (finding no evidence that the criteria used to select
      employees for a furlough was chosen to target or exempt specific employees).
¶10         Based on the foregoing, we agree with the administrative judge that the
      agency established cause to furlough the appellants. The administrative judge’s
      initial decision is accordingly affirmed, and the appellants’ petition for review
      is denied.

                      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:
                                                                                  7

                          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 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
                                                                                8

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.
                                                               9


                             APPENDIX A

                      IN RE AFRL GROUP 5 HEARING
                          NY-0752-14-0096-I-1


Albert G. Frantz                         NY-0752-13-0851-I-1
Alex F. Sisti                            NY-0752-13-0816-I-1
Angela M. Lipe                           NY-0752-13-0869-I-1
Dale W. Richards                         NY-0752-13-0718-I-1
David A. Canestrare                      NY-0752-13-0616-I-1
Gennady R. Staskevich                    NY-0752-13-0714-I-1
Jaclyn A. Karam                          NY-0752-13-0743-I-1
James F. Reilly                          NY-0752-13-0793-I-1
James P. Hanna                           NY-0752-13-0880-I-1
Jerry L. Dussault                        NY-0752-13-0821-I-1
JoAnn C. Soriano                         NY-0752-13-0757-I-1
John G. Parker                           NY-0752-13-0779-I-1
Kyle R. Holbritter                       NY-0752-13-0755-I-1
Michael F. Seifert                       NY-0752-13-0884-I-1
Ralph L. Kohler                          NY-0752-13-0802-I-1
Randall J. McIntyre                      NY-0752-13-0781-I-1
Rebecca J. Bussjager                     NY-0752-13-0853-I-1
Robert S. McHale                         NY-0752-13-0783-I-1
Stanley J. Wenndt                        NY-0752-13-0761-I-1
William D. Lewis                         NY-0752-13-0716-I-1
