                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     PHILLIP BROWN,                                  DOCKET NUMBER
                  Appellant,                         PH-0752-13-0914-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: September 28, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Phillip Brown, Prince Frederick, Maryland, pro se.

           Shari L. Oehrle, Pensacola, Florida, 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;
     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 administrative

     1
        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 petitioner has not
     established any basis under section 1201.115 for granting the petition for review.
     Therefore, we DENY the petition for review, and, except as expressly
     MODIFIED by this Final Order, we AFFIRM the initial decision. 2
¶2         After Congress enacted the across-the-board spending cuts known as
     sequestration in August 2011, the Department of Defense faced a significant
     budgetary shortfall in its operations and maintenance accounts.             Complete
     Department of the Navy Administrative Record for FY 2013 Furlough Appeals
     (hereinafter CAR), part 1 at 4-10. 3    As a consequence, the Department of the
     Navy began to furlough civilian employees for up to 11 nonconsecutive days on
     or about July 8, 2013. Id. at 10, 17. At the time, the appellant was an Electronics
     Engineer, GS-0855-13, with the Acquisition Workforce Development Fund,
     Naval Acquisition Career Center, in Mechanicsburg, Pennsylvania. Initial Appeal
     File (IAF), Tab 15 at 21.    After giving the appellant a chance to respond, the
     deciding official upheld the appellant’s proposed furlough. Id. at 18‑20, 22-25.
     The appellant was furloughed for a total of 48 hours. Id. at 17.
¶3         The appellant filed a timely appeal with the Board, IAF, Tab 1, and
     withdrew his request for a hearing at the prehearing conference, IAF, Tab 33.


     2
       We modify the initial decision to address the appellant’s allegation that the agency
     defrauded its employees in imposing the furlough.
     3
       The CAR is a group of documents that pertain to all appeals of the 2013 sequestration
     furlough brought against the agency. It is located on the Board’s website at
     www.mspb.gov/furloughappeals/navy2013.htm.
                                                                                          3

     After     both    parties   submitted   closing   arguments,   IAF,   Tabs 35-36,   the
     administrative judge issued the initial decision, IAF, Tab 37, Initial Decision
     (ID). The administrative judge found that the furlough promoted the efficiency of
     the service, and he affirmed the agency’s action. ID at 1-4. The appellant filed a
     timely petition for review, wherein he reasserts his primary arguments from the
     proceeding before the administrative judge; namely, that the agency breached his
     employment contract and committed fraud by imposing the furlough. Petition for
     Review (PFR) File, Tab 1 at 4-5. Additionally, he argues that the administrative
     judge erred in not granting his motion to compel discovery. Id. at 4.
¶4            The appellant argued that he was employed with the agency pursuant to an
     employment contract—the October 20, 2011 offer letter he received before he
     was appointed—and the agency breached that contract by subjecting him to a
     furlough.        IAF, Tabs 6, 8, Tab 36 at 4-5.      He asserts on review that the
     administrative judge erred in finding that no contract existed and by failing to
     consider the authority he provided establishing the existence of a contractual
     relationship.      PFR File, Tab 1 at 4; ID at 3.    The appellant, however, has not
     shown that the offer letter was an employment contract or that any contract was in
     force.     The appellant was a career-conditional employee in the competitive
     service. IAF, Tab 35 at 9. Like all similarly situated Federal employees, he was
     appointed to his position under statutory authority, rather than pursuant to a
     contract. Id. Absent specific legislation, Federal employees derive the benefits
     and emoluments of their positions from their appointment, rather than from any
     contractual or quasi-contractual relationship with the Government. See Hamlet v.
     United States, 63 F.3d 1097, 1101 (Fed. Cir. 1995). The cases that the appellant
     cited for the proposition that his employment was contractual are inapposite. For
     example, the contractual analysis in Walker-King v. Department of Veterans
     Affairs, 119 M.S.P.R. 414, ¶¶ 9-13 (2013), pertains to enforcing a settlement
     agreement reached           in a Board    appeal.     In Ramos    v. Department of
     Justice, 94 M.S.P.R. 623, ¶¶ 11-12 (2003), rev’d and remanded, 240 F. App’x
                                                                                      4

     409 (Fed. Cir. 2005), the Board considered whether an employee’s agreement to
     serve a new probationary period when he changed from one type of position to
     another was valid. Neither set of circumstances applies here.
¶5         The appellant also argued that the agency defrauded him because it knew of
     the potential for sequestration budget cuts before he was hired.      IAF, Tab 36
     at 7-8. He asserted that the agency repeatedly has stated his salary in annualized
     terms in its official documents, yet has failed to disclose that employees are
     subject to a partial loss of their annual salaries via furlough, which effectively
     misrepresents the amount of their salaries. Id. at 5-8. The administrative judge
     did not directly address this issue, and the appellant reasserts it on review. PFR
     File, Tab 1 at 4-5.
¶6         Agencies have broad managerial discretion to take actions to avoid a deficit.
     Waksman v. Department of Commerce, 37 M.S.P.R. 640, 645 (1988) (discussing
     agency discretion in the context of a reduction in force), aff’d sub nom. Harris v.
     Department of Commerce, 878 F.2d 1447 (Fed. Cir. 1989) (Table).          One such
     action, anticipated and sanctioned by Congress, is the furlough of civilian
     employees. Agencies may furlough employees by placing them in a temporary
     status without duties and pay because of lack of funds. 5 U.S.C. §§ 7511(a)(5),
     7512(5); Chandler v. Department of the Treasury, 120 M.S.P.R. 163, ¶ 9 (2013).
¶7         As with any adverse action taken under chapter 75 of title 5, the agency
     bears the burden of proving by preponderant evidence the factual basis for a
     furlough and that the furlough promoted the efficiency of the service. 5 C.F.R.
     § 1201.56(b)(1)(ii). A furlough promotes the efficiency of the service if it is a
     reasonable management solution to the financial restrictions placed on the
     agency, and the agency determined which employees to furlough in a fair and
     even manner.     Chandler, 120 M.S.P.R. 163, ¶ 8.     Here, the agency submitted
     unrebutted evidence that it had to make spending cuts under sequestration, and
     the furloughs were one such measure that would help avoid a deficit. CAR, part 1
     at 4-10.   The agency’s unrebutted evidence also showed that it imposed the
                                                                                      5

     furloughs uniformly across its workforce, making exceptions only for a limited
     number of categories such as employees needed to protect life or property or
     whose absence would result in failure of a critical mission. Id. at 15-18. The
     appellant’s argument is thus unavailing.     See Einboden v. Department of the
     Navy, 122 M.S.P.R. 302, ¶ 18 n.5 (emphasizing that whether the efficiency of the
     service is met is determined by reviewing the circumstances present when the
     agency took the furlough action, rather than reviewing the action with the benefit
     of hindsight), aff’d, 802 F.3d 1321 (Fed. Cir. 2015); Department of Labor v.
     Avery, 120 M.S.P.R. 150, ¶ 10 (2013) (finding that the Board will not scrutinize
     an agency’s decision in such a way that second guesses the agency’s assessment
     of its mission requirements and priorities), aff’d sub nom. Berlin v. Department of
     Labor, 722 F.3d 890 (Fed. Cir. 2014).
¶8         The appellant additionally argues on review that the administrative judge
     erred by declining his discovery request, whereby he would have been able to
     establish that the October 20, 2011 offer letter constituted a contract. PFR File,
     Tab 1 at 4.      The Board, however, will not reverse an administrative judge’s
     rulings on discovery matters absent an abuse of discretion.             Wagner v.
     Environmental Protection Agency, 54 M.S.P.R. 447, 452 (1992), aff’d, 996 F.2d
     1236 (Fed. Cir. 1993) (Table).       Here, the administrative judge denied the
     appellant’s motion to compel because his discovery requests were not relevant to
     the issues on appeal and, further, because they were not calculated to lead to the
     discovery of relevant evidence.    IAF, Tab 23.    The appellant’s interrogatories
     pertained to his belief that the agency breached an employment contract, an issue
     that the administrative judge explained did not relate to whether there was a
     factual basis for the furlough or the furlough promoted the efficiency of the
     service. IAF, Tabs 17, 23. Further, as the administrative judge explained, the
     appellant made no showing as to whether the information he sought would lead to
     the discovery of relevant evidence. IAF, Tab 23. Accordingly, we find no abuse
     of discretion.
                                                                                            6

¶9         Finally, the appellant requested leave to submit an additional pleading
      asking that the Board order all Federal agencies to “explicitly disclose to
      applicants for federal employment the key issues which form Appellant's bases
      for claiming breach of contract and fraud.” PFR File, Tab 5. Such a disclosure,
      he explains, “might significantly alleviate the Board's future workload if
      employees were told in advance and were documented to have agreed to relevant
      conditions of employment.” Id. As discussed above, however, the appellant’s
      appointment did not have its basis in an employment contract, and, in any event,
      the Board has no authority by statute or regulation to issue the order that the
      appellant proposes. See Maddox v. Merit Systems Protection Board, 759 F.2d 9,
      10 (Fed. Cir. 1985) (holding that the Board’s jurisdiction is limited to those
      matters   over   which   it   has   been   given   jurisdiction   by   law,   rule,   or
      regulation); 5 C.F.R. § 1201.3. We thus deny the appellant’s motion.
¶10        Accordingly, for the above reasons, we find that the administrative judge
      properly affirmed the agency’s furlough action in this case.

                       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 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
                                                                                  7

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
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:                               ______________________________
                                             Jennifer Everling
                                             Acting Clerk of the Board
Washington, D.C.
