              UNITED STATES OF AMERICA
           MERIT SYSTEMS PROTECTION BOARD
                           2016 MSPB 14

                 Docket Nos. SF-0752-14-0312-I-1
                             SF-0752-14-0317-I-1
                             SF-0752-14-0318-I-1
                             SF-0752-14-0319-I-1
                             SF-0752-13-3066-I-1

                    NV24-KEYPORT2 et al.,
                            Appellants,
                                  v.
                     Department of the Navy,
                              Agency.
                           March 3, 2016

Wayne D. Patterson, Kristi L. Ackerman, Richard K. Schulgen, Aaron J.
 Clark, Christopher P. Haworth, Elisabeth Bankhead, Elizabeth A.
 Kerstetter, Karen F. Mills, Roger A. Gelbach, Wade A. Kempf, Corey M.
 Kopp, Deborah May Westerback, Gerry K. Austin, Leo J. Beer, Lucas P.
 Zahara, and Wayne A. Stowsand, pro se.

Matthew D. Dunand and Steven L. Seaton, Esquire, Bremerton,
 Washington, for the agency.

Shari L. Oehrle, Pensacola, Florida, for the agency.



                              BEFORE

                 Susan Tsui Grundmann, Chairman
                    Mark A. Robbins, Member
                                                                                         2

                                  OPINION AND ORDER

¶1         The appellants have filed petitions for review of the initial decisions, which
     upheld the furlough actions and determined that they did not prove any of their
     affirmative defenses.    Because these appeals present similar issues, and to
     expedite their processing, we CONSOLIDATE them pursuant to 5 U.S.C.
     § 7701(f)(1) and 5 C.F.R. § 1201.36(a)-(b).        For the following reasons, we
     AFFIRM the initial decisions AS MODIFIED by this Opinion and Order. We
     modify the initial decisions to supplement the administrative judge’s conclusion
     that the furloughs promoted the efficiency of the service, and that the appellants
     did not prove their affirmative defenses of harmful procedural error and that the
     furloughs were not in accordance with law. 1

                                       BACKGROUND
¶2         A number of similarly situated employees from the Naval Undersea
     Warfare Center (NUWC) Division Keyport appealed the agency’s decision to
     furlough them for 6 days, between July and August 2013, and the appeals were
     consolidated. E.g., NV24-KEYPORT1 v. Department of the Navy, MSPB Docket
     No. SF-0752-14-0311-I-1, Consolidation Appeal File (NV24-KEYPORT1 CAF),
     Tabs 2, 12 2; NV24-KEYPORT2 v. Department of the Navy, MSPB Docket No.
     SF-0752-14-0312-I-1, Consolidation Appeal File (NV24-KEYPORT2 CAF),
     Tabs 2, 12; NV24-KEYPORT4 v. Department of the Navy, MSPB Docket No.
     SF-0752-14-0317-I-1, Consolidation Appeal File (NV24-KEYPORT4 CAF),


     1
       Our findings in this Opinion and Order apply only to Appellant Patterson and the
     appellants set forth in Appendices A-D, not to the appellants who were previously part
     of these consolidated groups but did not file petitions for review. See Dye v.
     Department of the Army, 121 M.S.P.R. 142, ¶ 1 n.2 (2014).
     2
       Appellant Patterson’s appeal was part of NV24-KEYPORT1 v. Department of the
     Navy, MSPB Docket No. SF-0752-14-0311-I-1. Appellant Patterson was the only
     appellant from that consolidation to file a petition for review.
                                                                                           3

     Tabs 2, 15; NV24-KEYPORT5 v. Department of the Navy, MSPB Docket No.
     SF-0752-14-0318-I-1, Consolidation Appeal File (NV24-KEYPORT5 CAF),
     Tabs 2, 15; NV24-KEYPORT6 v. Department of the Navy, MSPB Docket No.
     SF-0752-14-0319-I-1, Consolidation Appeal File (NV24-KEYPORT6 CAF),
     Tabs 2, 14. After holding a single 3-day hearing, the administrative judge issued
     one initial decision for each consolidated group that affirmed the furloughs and
     found that the appellants did not prove their affirmative defenses of harmful
     procedural error, a due process violation, or that the furloughs were not in
     accordance with law. 3         Hearing Transcript (HT); NV24-KEYPORT1 CAF,
     Tab 45, Initial Decision; NV24-KEYPORT2 CAF, Tab 45, Initial Decision
     (NV24-KEYPORT2 ID); NV24-KEYPORT4 CAF, Tab 48, Initial Decision;
     NV24-KEYPORT5 CAF, Tab 48, Initial Decision; NV24-KEYPORT6 CAF,
     Tab 45, Initial Decision.
¶3            The Board has received petitions for review from Appellant Patterson and
     the appellants listed in the attached appendices only. E.g., Austin v. Department
     of the Navy, MSPB Docket No. SF-0752-13-2457-I-1, Petition for Review (Austin
     PFR) File, Tab 1. 4           The agency has filed responses to the petitions. 5
     NV24-KEYPORT2 v. Department of the Navy, Petition for Review File, Tab 2;
     Patterson v. Department of the Navy, MSPB Docket No. SF-0752-13-3066-I-1,


     3
         The administrative judge issued initial decisions on June 9 and June, 10, 2015.
     4
       Each of the appellants listed in the appendices explicitly state that their respective
     petitions for review are “similar to the one filed by [Appellant] Gerry Austin” and each
     references the corresponding docket number for Appellant Austin’s appeal. E.g.,
     Ackerman v. Department of the Navy, MSPB Docket No. SF-0752-13-3046-I-1, Petition
     for Review File, Tab 1 at 5. Appellant Patterson’s petition for review does not contain
     such a statement, and his petition for review includes additional arguments. Patterson
     v. Department of the Navy, MSPB Docket No. SF-0752-13-3066-I-1, Petition for
     Review File, Tab 1.
     5
      The agency filed one response in Appellant Patterson’s appeal and one response to the
     other petitions.
                                                                                     4

     Petition for Review (Patterson PFR) File, Tab 3.          Appellants Austin and
     Patterson have filed reply briefs. Austin PFR File, Tab 2; Patterson PFR File,
     Tab 4.

                                         ANALYSIS
     The furloughs promoted the efficiency of the service.
¶4            Under 5 U.S.C. §§ 7512(5) and 7513(a), an agency may furlough an
     employee for 30 days or less “only for such cause as will promote the efficiency
     of the service.”      Naval Station Norfolk-Hearing 2 v. Department of the
     Navy, 123 M.S.P.R. 144, ¶ 8 (2016). 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); Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 8 (2013).      By arguing on review that NUWC
     Division Keyport had adequate funding to avoid the furloughs and that the agency
     improperly and inconsistently permitted overtime, we understand the appellants
     to be challenging the administrative judge’s conclusion that the agency satisfied
     both parts of this test. Austin PFR File, Tab 1 at 10-13; NV24-KEYPORT2 ID
     at 3-8. We modify the initial decisions to supplement the administrative judge’s
     analysis of these issues, but we are not persuaded that a different outcome is
     warranted.
              The appellants’ reliance on 10 U.S.C. § 129(e) and concomitant assertion
              that NUWC Division Keyport had adequate funds to avoid a furlough do
              not warrant a different outcome.
¶5            The appellants appear to challenge the administrative judge’s conclusion
     that the furloughs were a reasonable management solution to the financial
                                                                                          5

     restrictions placed on the agency by arguing that (1) NUWC Division Keyport is
     a   Major    Range     and    Test   Facility    Base   (MRTFB), 6     (2)    pursuant
     to 10 U.S.C. § 129(e), the prohibition of certain civilian personnel management
     constraints “apply [to MRTFBs] at the installation level,” (3) and the furloughs
     constituted an impermissible constraint because NUWC Division Keyport had
     sufficient funding to avoid a furlough.         Austin PFR File, Tab 1 at 5-8, 14;
     see 10 U.S.C. § 129(e).      The administrative judge did not mention or discuss
     subsection (e) of 10 U.S.C. § 129 or NUWC Division Keyport’s status as an
     MRTFB, and we modify the initial decisions to discuss this statutory provision.
¶6         Subsection (a) of 10 U.S.C. § 129 requires the Department of Defense
     (DOD) to manage its civilian personnel “solely on the basis of” total force
     management policies and procedures described in 10 U.S.C. § 129a, workload,
     and “the funds made available to the department for such fiscal year.” 7
     Subsection (a) also states that the “management of such personnel in any fiscal
     year shall not be subject to any constraint or limitation in terms of man years, end
                                                                                           8
     strength, full-time equivalent positions, or maximum number of employees.”
     Similarly, subsection (b)(2) states that the number of, and the amount of funds
     available to be paid to, indirectly funded DOD Government employees 9 “may not

     6
       As an MRTFB, NUWC Division Keyport is a nationally recognized testing and
     evaluation range for the Nanoose and Dabob Bay ranges. HT at 185-86, 435-36.
     7
       10 U.S.C. § 101(a)(6) defines “department,” when used with respect to DOD, as “the
     executive part of the department, including the executive parts of the military
     departments, and all field headquarters, forces, reserve components, installations,
     activities, and functions under the control or supervision of the Secretary of Defense,
     including those of the military departments.”
     8
      The deciding official confirmed that a man year is “the amount of work expected to be
     done by one employee . . . [o]ver the . . . course of a year.” HT at 64-65.
     9
       Subsection (c) of 10 U.S.C. § 129 defines “indirectly funded Government employees”
     as DOD civilian employees who are employed by industrial-type activities, the MRTFB,
     or commercial-type activities described in 10 U.S.C. § 2208, and whose salaries and
     benefits are funded from sources other than appropriated funds.
                                                                                        6

     be . . . managed on the basis of any constraint or limitation in terms of man years,
     end strength, full-time equivalent positions, or maximum number of employees.”
     Subsection (e) states that these prohibitions apply to the MRTFB “at the
     installation level.”
¶7         We have not found any precedent from the Board or the U.S. Court of
     Appeals for the Federal Circuit that discusses subsection (e) of 10 U.S.C. § 129.
     The parties did not cite to or discuss any legislative history of 10 U.S.C. § 129(e),
     and we have been unable to find any published remarks regarding subsection (e)
     to assist us in our resolution of this matter.        See, e.g., National Defense
     Authorization Act for Fiscal Year 1997, Pub. L. No. 104-201, § 1603(2), 110
     Stat. 2422 (1996).
¶8         Even if we assume for the purposes of our analysis that NUWC Division
     Keyport is an installation, there is no evidence that the furloughs constituted an
     improper constraint or limitation on the management of civilian personnel at that
     installation in violation of subsections (a) or (b) of 10 U.S.C. § 129. The fact that
     the deciding official acknowledged that the furloughs ultimately restricted or
     limited the availability of man years, Austin PFR File, Tab 1 at 6 (citing
     HT at 64-65), does not necessitate a finding that the management of civilian
     personnel at the installation level was “subject to” or “managed on the basis of” a
     constraint or limitation in terms of man years.
¶9         We are also not persuaded by the appellants’ assertion that the furloughs
     were an impermissible constraint because NUWC Division Keyport had adequate
     funding to avoid them. The Board has held that, notwithstanding an appellant’s
     assertion that the Department of the Navy (Navy) had adequate funding to avoid
     the furloughs, it was reasonable for DOD to consider its budget situation
     holistically, rather than isolating each individual military department’s situation.
     Yee v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014). Relying on Yee,
     the Board subsequently upheld the furlough of a working capital fund employee
     even when the division in question had adequate funding to avoid a furlough.
                                                                                             7

      Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶ 15, aff’d,
      802 F.3d 1321 (Fed. Cir. 2015). The appellants have not persuaded us that the
      Board’s reasoning in Yee and Einboden should not apply to this matter,
      particularly since NUWC Division Keyport is a working capital funded agency.
      HT at 70-71; NV24-KEYPORT2 CAF, Tab 9 at 6. 10 We therefore conclude that,
      notwithstanding the appellants’ assertion that NUWC Division Keyport had
      adequate funding to avoid the furloughs, it was reasonable for DOD to consider
      its budget situation holistically, rather than isolating the situation of each
      individual Navy organization or component. See Einboden, 122 M.S.P.R. 302,
      ¶ 15; Yee, 121 M.S.P.R. 686, ¶ 14.           The appellants do not challenge the
      administrative judge’s conclusion that DOD had to make spending cuts required
      by sequestration, NV24-KEYPORT2 ID at 3, and we affirm her finding that the
      furloughs were a reasonable management solution to the financial restrictions
      placed on the agency.
            The agency used overtime properly and in a manner that was fair and even.
¶10         An agency’s decision to award certain employees overtime pay may be
      relevant to whether the agency applied the furlough uniformly and consistently.
      Chandler, 120 M.S.P.R. 163, ¶ 14. Thus, if the agency used overtime payments
      to relieve certain employees but not others of the financial consequences of the
      furlough, this may be sufficient to show that the furlough did not meet the
      efficiency of the service standard. Id. The efficiency of the service standard
      encompasses issues relating to the uniform and consistent application of the
      furlough, including whether the agency used a furlough to target employees for
      personal reasons or attempted to exempt certain employees from the furlough

      10
        The appellants assert on review that the Board’s holding Einboden is distinguishable
      because NUWC Division Keyport is also an MRTFB. Austin PFR File, Tab 1 at 8. In
      the absence of any evidence that the agency, or NUWC Division Keyport in particular,
      managed its civilian personnel in violation of 10 U.S.C. § 129, this distinction does not
      warrant a different analysis or outcome.
                                                                                      8

      without legitimate management reasons. Id., ¶ 9. The agency must treat similar
      employees similarly and must justify any deviations with legitimate management
      reasons. Id., ¶ 8.
¶11         The agency’s use of overtime during the relevant time period satisfies these
      standards. For instance, there was consistent testimony from the deciding official
      and other witnesses that overtime was not provided to, nor withheld from, certain
      employees to offset or enhance the financial impacts of the furlough. HT at 31,
      90, 135, 166, 394, 422-23, 463.    The record reflects that the agency’s use of
      overtime was largely due to completing mission-critical needs or tasks and often
      was approved for employees with specialized knowledge or skills.        See, e.g.,
      HT at 128-29 (explaining that the Mark 112 project was an expiring-funds project
      that was “Priority No. 3 by the technical project manager associated with this
      work”), 134 (asserting that employee 324 was the “only . . . person [with] the
      mathematical background in order to do this particular job”), 165 (stating that an
      employee who received overtime was the chief engineer of a division that
      provides test and evaluation systems and was “uniquely qualified to provide
      engineering technical analysis for the safe handling and lifting” of a
      mini-submarine, which was a high risk and high visibility project). The agency’s
      use of overtime in this manner is not a basis for invalidating the appellants’
      furloughs. See Einboden, 802 F.3d at 1325 (“It is not our role to second guess
      agency decisions as to how to prioritize funding when faced with a budget
      shortfall.”); Kelly v. Department of the Army, 121 M.S.P.R. 408, ¶ 13 (2014)
      (holding that an agency’s decision to adopt a policy under which it permitted the
      use of overtime to meet mission-critical needs is a spending matter within the
      agency’s sound discretion); Department of Labor v. Avery, 120 M.S.P.R. 150,
      ¶ 10 (2013) (stating that in determining whether the agency structured a furlough
      in a fair and even manner, the Board will not scrutinize an agency’s decision in
      such a way that second-guesses the agency’s assessment of its mission
                                                                                              9

      requirements and priorities), aff’d sub nom. Berlin v. Department of Labor,
      772 F.3d 890 (Fed. Cir. 2014).
¶12         The appellants argue on review that there was a “lack of uniformity or
      consistency across the command” regarding the use of overtime during the
      furlough period. Austin PFR File, Tab 1 at 10-11. They assert that Appellant
      Kerstetter, a mechanical engineer, was prohibited from working overtime during
      the furlough, whereas another mechanical engineer in the same job series, Kyle
      Morris, 11 was afforded greater opportunity and encouraged to work overtime
      during the furlough. Id. at 12. We modify the initial decisions to discuss this
      specific assertion, but we conclude that a different outcome is not warranted.
¶13         In evaluating whether individuals are similarly situated, it is appropriate to
      apply reduction-in-force competitive level principles. Weathers v. Department of
      the Navy, 121 M.S.P.R. 417, ¶ 8 (2014). Generally, a competitive area must be
      defined solely in terms of the agency’s organizational unit(s) and geographical
      location. Id. The minimum competitive area is a subdivision of the agency under
      separate administration within the local commuting area.                  Id.; 5 C.F.R.
      § 351.402(b).
¶14         Even though Appellant Kerstetter and Mr. Morris were both mechanical
      engineers at NUWC Division Keyport, we conclude that they were not in the
      same competitive area.       Appellant Kerstetter’s furlough Standard Form 50-B
      (SF-50-B) reports that she worked in the Systems Acceptance and Operational
      Readiness Department, “USW Weapons” and Product Acceptance Division, and
      Production Acceptance and Test Branch. Kerstetter v. Department of the Navy,
      MSPB Docket No. SF-0752-13-2502-I-1, Initial Appeal File, Tab 10 at 5.
      Appellant Kerstetter testified that she worked in the Failure Analysis Lab in


      11
         Mr. Morris was part of NV24-KEYPORT5 v. Department of the Navy, MSPB Docket
      No. SF-0752-14-0318-I-1, but he did not file a petition for review of the initial decision
      in that matter.
                                                                                        10

      Code 222, whose primary role was to, among other things, “evaluate the failures
      in the fleet and examine material,” research and development, and reverse
      engineering. HT at 454. By contrast, Mr. Morris’s furlough SF-50-B states that
      he worked in the Maintenance, Engineering, and Industrial Operations
      Department, “Rapid       Proto    &   Fabrication   Tech”   Division,   and   Applied
      Technology Branch.       Morris v. Department of the Navy, MSPB Docket No.
      SF-0752-13-2505-I-1, Initial Appeal File, Tab 2 at 6. Mr. Morris testified that he
      worked in Code 321, which “makes parts and pieces for anybody and everybody.”
      HT at 413-14.      Because Appellant Kerstetter and Mr. Morris were assigned in
      different code sections and worked in different departments, divisions, and
      branches, we conclude that they are not in the same competitive area, and
      therefore they are not similarly situated. See, e.g., Rodgers v. Department of the
      Navy, 122 M.S.P.R. 559, ¶ 15 (2015) (concluding that, even if the appellant
      performed similar duties as the attorneys assigned to the Norfolk Naval Shipyard,
      she was not similarly situated to them because they worked in a different
      subdivision of the agency under separate administration).        Because Appellant
      Kerstetter and Mr. Morris were not similarly situated, the agency was not
      required to treat them similarly regarding the availability of overtime during the
      furlough period.
¶15         We also have considered the appellants’ assertion that the administrative
      judge’s conclusion that management justified any deviations with legitimate
      management reasons failed to consider the Memorandum of Agreement between
      agency managers and two unions.          Austin PFR File, Tab 1 at 10, 12; see
      NV24-KEYPORT2 CAF, Tab 9, Exhibit H at 3 (stating that the division will not
      “use contract funding or premium pay (e.g., compensatory time or overtime) to
      offset lost time under [the] furlough”).      The administrative judge’s failure to
      mention all of the evidence of record does not mean that she did not consider it in
      reaching her decision.           Marques v. Department of Health          & Human
      Services, 22 M.S.P.R. 129, 132 (1984), aff’d, 776 F.2d 1062 (Fed. Cir. 1985)
                                                                                         11

      (Table). Moreover, the record reflects that the agency made a good faith effort to
      comply with both the letter and the spirit of the agreement through the
      establishment of goals for the use of overtime.            For example, because the
      furlough initially was expected to reduce the agency’s normal hours by 20%, the
      agency established a corresponding goal that it would execute only 80% of the
      overtime hours that were executed during the fourth quarter of the prior fiscal
      year.      HT at 32-33, 81, 94-95, 125, 138-39, 156, 170, 253.         The agency’s
      deliberate reduction of overtime hours in similar proportion to the reduction of
      hours due to the furlough appears inconsistent with the appellants’ assertion that
      it was using overtime hours to offset furlough hours. 12
¶16           For these reasons, we affirm the administrative judge’s conclusion that the
      furloughs were a reasonable management solution to the financial restrictions
      placed on DOD, that it applied its determination as to which employees to
      furlough fairly and evenly, and that the furloughs promoted the efficiency of the
      service.
      The appellants failed to prove their affirmative defenses. 13
¶17           Under 5 U.S.C. § 7701(c)(2), the agency’s decision may not be sustained if
      the appellants show harmful error in the application of the agency’s procedures in
      arriving at such a decision or that the decision was not in accordance with law.
      The appellants bear the burden of proving their affirmative defenses by
      preponderant evidence. 5 C.F.R. § 1201.56(b)(2)(i)(C).
¶18           In the initial decisions, the administrative judge assumed (without
      deciding) that the agency committed a procedural error by constraining the

      12
        Even if we considered these arguments as a claim of harmful procedural error, the
      appellants have not established that the agency committed any error for the reasons
      described herein.
      13
        The appellants do not appear to challenge the administrative judge’s conclusion that
      they did not prove their affirmative defense of a due process violation,
      NV24-KEYPORT2 ID at 8-9, and we affirm her decision in this regard.
                                                                                             12

      deciding official’s authority beyond the guidance provided by the Secretary of
      Defense, but found that the appellants “offered no evidence that the deciding
      official would have defied the wishes of higher-level agency management and
      canceled    the   furloughs   if   given   the   unfettered   discretion   to   do    so.”
      NV24-KEYPORT2 ID at 9. The appellants assert on review that NUWC Division
      Keyport did not have a shortage of funds and the evidence supports the opposite
      conclusion as the one reached by the administrative judge.             Austin PFR File,
      Tab-1 at 8-9. In support of this assertion, the appellants cite to the following
      evidence: (1) Program Manager N.P. testified that “[o]vertime and everything
      started ramping up” when the budget was signed in May 2013, HT at 439; (2) the
      agency’s response to the union’s request for information stated that it had
      “existing (and durable) workload demands to fully employ [more people than
      were currently staffed in June 2013],” Austin v. Department of the Navy,
      MSPB Docket       No.   SF-0752-13-2457-I-1,        Initial   Appeal    File,   Tab     1,
      Attachment 3; and (3) the undisputed fact that overtime was used before, during,
      and after the furlough, e.g., NV24-KEYPORT2 CAF, Tab 11, Exhibits A-B.
      Austin PFR File, Tab 1 at 9. We modify the initial decisions to clarify that the
      appellants have not proven that the agency committed any procedural error.
¶19         The record reflects that the agency followed its own procedures during the
      furlough.    The agency’s procedures for the furlough delegated to deciding
      officials the authority to review employee replies and apply the approved
      categorical exceptions on a case-by-case basis. See, e.g., Department of the Navy
      Administrative Record for FY 2013 Furlough Appeals, Part 1 at 12-18, 30-37, 49,
      105-14,     available   at    http://www.mspb.gov/furloughappeals/navy2013.htm;
      NV24-KEYPORT2 CAF, Tab 5 at 21-22; HT at 22-27. The appellants have not
      established that the agency failed to follow these procedures in handling their
      individual furloughs. Further, the appellants have not cited, and we are not aware
      of, any authority that gave the deciding official discretion to cancel the furloughs
      because there was no shortage of funds at NUWC Division Keyport.                      See
                                                                                        13

      Rodgers, 122 M.S.P.R. 559, ¶ 11 (finding no support in the record for the
      proposition that the Navy’s procedures for implementing the furlough granted
      individual deciding officials the independent authority to make organization-wide
      exceptions to the furlough). Thus, we find that the appellants failed to establish
      that any procedural error occurred. 14
¶20         Regarding the affirmative defense that the furloughs were not in
      accordance with law, the appellants assert on review that the administrative judge
      improperly placed the burden on them to demonstrate that the furloughs were
      imposed to “meet an arbitrary man-year target,” whereas the language
      in 10 U.S.C. § 129(b)(2) only requires them to show a “constraint or limitation.”
      Austin PFR File, Tab 1 at 6-7; NV24-KEYPORT2 ID at 8. This argument is
      unavailing. Rather, as discussed supra ¶¶ 8-9, we find that the furloughs were
      imposed due to sequestration and the resulting lack of funding, not one of the
      impermissible constraints described in 10 U.S.C. § 129. Because we find that the
      agency did not violate 10 U.S.C. § 129, we discern no error with the
      administrative judge’s conclusion that the appellants did not prove this
      affirmative defense.
      Appellant Patterson’s additional arguments do not warrant a different outcome.
¶21         Appellant Patterson made the following additional assertions in his petition
      for review: (1) the majority of the case law cited by the administrative judge in
      the initial decision was issued after the record closed; (2) the new cases are
      distinguishable because they “lack the degree of evidence and testimony provided
      in this case”; and (3) unnamed electrical engineers were treated differently than
      others regarding the availability of overtime. Patterson PFR File, Tab 1 at 7, 9.
      These arguments are not persuasive.



      14
         Accordingly, there is no need to analyze whether the appellants were harmed by any
      error.
                                                                                        14

¶22         The Board generally applies case law issued while an appeal is pending.
      See, e.g., Smith v. Merit Systems Protection Board, 168 F.3d 1305, 1306
      (Fed. Cir. 1999); Nichols v. Department of Veterans Affairs, 89 M.S.P.R. 554, ¶ 4
      (2001); Beck v. General Services Administration, 86 M.S.P.R. 489, ¶ 12 (2000).
      Further, by filing a petition for review, Appellant Patterson was able to challenge
      the administrative judge’s analysis, and thus, he was not harmed by the
      administrative judge’s reliance on recent cases. 15        We have considered the
      appellants’ graphical data that was generated from information provided by the
      agency regarding overtime hours worked by employees before, during, and after
      the furlough. NV24-KEYPORT2 CAF, Tab 11, Exhibits A-B. Appellant Austin,
      who created the graphical data, acknowledged on cross examination that it does
      not show compensatory time or include all of the employees at NUWC Division
      Keyport. HT at 326-27, 331-35. Because of these limitations, the graphical data
      has little probative value.   Finally, Appellant Patterson failed to identify any
      electrical engineers by name, code section, or employee number, nor did he
      identify specific evidence that the administrative judge failed to analyze or
      improperly analyzed. In the absence of such evidence or information, a different
      outcome is not      warranted.     See,   e.g.,   Weaver v.    Department of the
      Navy, 2 M.S.P.R. 129, 133 (1980) (holding that the petitioning party must explain
      why the challenged factual determination is incorrect, and identify the specific
      evidence in the record that demonstrates the error); 5 C.F.R. § 1201.115(a)(2).
¶23         For these reasons, we affirm the initial decisions as modified by this
      Opinion and Order, still affirming the furlough actions.




      15
         To the extent that Appellant Austin makes the same argument in his reply brief,
      Austin PFR File, Tab 2 at 6, we similarly conclude that he has not demonstrated any
      harm.
                                                                                       15

                                             ORDER
¶24         This is the final decision of the Merit Systems Protection Board in these
      appeals.   Title 5 of the Code of Federal Regulations, section 1201.113(c)
      (5 C.F.R. § 1201.113(c)).

                       NOTICE TO THE APPELLANTS REGARDING
                           YOUR FURTHER REVIEW RIGHTS
            You have the right to request review of this final decision by the U.S.
      Court of Appeals for the Federal Circuit. 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 U.S. 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 U.S. 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 U.S. Court of Appeals for the Federal Circuit, you may visit our website
                                                                               16

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.
                                                           17

                        APPENDIX A


                      NV24-KEYPORT2
                      SF-0752-14-0312-I-1


Kristi L. Ackerman                   SF-0752-13-3046-I-1
Richard K. Schulgen                  SF-0752-13-3039-I-1
                                                              18

                            APPENDIX B

                         NV24-KEYPORT4
                         SF-0752-14-0317-I-1


Aaron J. Clark                          SF-0752-13-0911-I-1
Christopher P. Haworth                  SF-0752-13-4571-I-1
Elisabeth Bankhead                      SF-0752-13-1141-I-1
                                                               19

                             APPENDIX C

                          NV24-KEYPORT5
                          SF-0752-14-0318-I-1


Elizabeth A. Kerstetter                  SF-0752-13-2502-I-1
Karen F. Mills                           SF-0752-13-3022-I-1
Roger A. Gelbach                         SF-0752-13-2504-I-1
Wade A. Kempf                            SF-0752-13-2508-I-1
                                                              20

                            APPENDIX D

                         NV24-KEYPORT6
                         SF-0752-14-0319-I-1


Corey M. Kopp                           SF-0752-13-2442-I-1
Deborah May Westerback                  SF-0752-13-2515-I-1
Gerry K. Austin                         SF-0752-13-2457-I-1
Leo J. Beer                             SF-0752-13-2440-I-1
Lucas P. Zahara                         SF-0752-13-2460-I-1
Wayne A. Stowsand                       SF-0752-13-2479-I-1
