                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     JAMES E. BROYLES,                               DOCKET NUMBER
                   Appellant,                        AT-0752-13-2462-I-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: February 19, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           James E. Broyles, Summerville, South Carolina, pro se.

           Alison Gray, Washington, D.C., for the agency.

           Leonard R. Rippey, North Charleston, South Carolina, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                       FINAL ORDER

¶1         The agency has filed a petition for review of the initial decision, which
     reversed its action furloughing the appellant. For the reasons discussed below,
     we GRANT the agency’s petition for review, REVERSE the initial decision, and
     AFFIRM the furlough action.

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

¶2           The appellant, an Engineer with the agency’s Space and Naval Warfare
     Systems Center (SPAWARSYSCEN) Atlantic in Charleston, South Carolina, was
     furloughed without pay for 6 days during the summer of 2013. The action was
     taken in accordance with cost-cutting measures imposed by the Secretary of
     Defense in response to the President’s order of sequester that began on March 1,
     2013. Initial Appeal File (IAF), Tab 1 at 7-11. On appeal, the appellant claimed
     that his salary is funded by the Department of Homeland Security (DHS) pursuant
     to an interagency agreement such that furloughing him would not assist the
     Department of Defense (DOD) in meeting its sequestration reductions and that
     therefore he should have been exempted from the furlough. 2             Id. at 5.    In
     response, the agency argued that the appellant’s position did not meet the
     exemption criteria outlined in the furlough guidance provided by the Secretary of
     Defense and the Secretary of the Navy. IAF, Tab 4 at 4-5, 12.
¶3           In an initial decision based on the written record, 3 the administrative judge
     reversed the agency’s action.        IAF, Tab 7, Initial Decision (ID) at 2, 8.     She
     agreed with the appellant that his salary is funded from a source outside the DOD
     budget, specifically, DHS, and therefore that furloughing him does not promote
     the efficiency of the service.        ID at 6-8.    She further found that exempting
     employees whose positions are funded by Foreign Military Sales (FMS), as the
     agency did, because furloughing them would not assist in meeting the agency’s
     sequestration reductions, while not exempting the appellant for the same reason,
     violates the principle that furloughs must be conducted in a fair and even manner.
     ID at 8.




     2
       The appellant’s appeal was originally consolidated with other SPAWARSYSCEN
     Atlantic appeals under MSPB Docket No. AT-0752-14-0214-I-1. The administrative
     judge removed it from the consolidation because she perceived that it raised a unique
     issue. IAF, Tab 7, Initial Decision (ID) at 1 n.1.
     3
         The appellant declined a hearing. IAF, Tab 1 at 2.
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¶4        On petition for review, the agency argues that the administrative judge’s
     decision is contrary to a precedential decision issued by the Board, as affirmed by
     the U.S. Court of Appeals for the Federal Circuit, upholding the inclusion in the
     furlough of employees whose salaries are paid from Working Capital Fund (WCF)
     accounts, including the Navy WCF. 4      Petition for Review (PFR) File, Tab 1
     at 12-17. We agree.
¶5        In Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 10, 16, 18
     (2015), the Board found that the Secretary of Defense has authority to establish
     and oversee defense working-capital funds, that employees paid from WCF
     accounts are not exempted from furloughs, and that, given the financial
     constraints posed by sequestration, the furlough, including the furlough of WCF
     employees, was a reasonable management solution to those restrictions.
     Following issuance of the initial decision in this case, our reviewing court
     affirmed the Board’s decision. Einboden v. Department of the Navy, 802 F.3d
     1321, 1325-26 (Fed. Cir. 2015). Therefore, we find that the appellant’s status as
     a WCF employee provides no basis upon which to exclude him from the furlough.
¶6        On review, the agency challenges the administrative judge’s statement that
     97.7% of the appellant’s salary was paid by DHS. PFR File, Tab 1 at 5-6; ID
     at 7. The administrative judge based the statement on the agency’s stipulation
     that, during the relevant time period, the appellant worked 97.7% of his
     chargeable time on a DHS project. IAF, Tab 6 at 4. The agency urges that the
     stipulation does not compel a finding that the appellant’s salary was directly paid
     by DHS and contends that, on the contrary, he was in fact at all times paid by the
     Navy WCF.      The agency’s claim is supported by a careful reading of the
     stipulation and the chart documenting the appellant’s chargeable time for the
     period in question. Id. at 4-6. Under the circumstances, and given the Board and
     court precedent described above, we find that the agency has shown that the
     4
       The appellant acknowledges that SPAWARSYSCEN is a WCF activity. IAF, Tab 5
     at 4.
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     furlough properly included the appellant, that it was a reasonable management
     solution to the financial restrictions placed on the agency, and that it promoted
     the efficiency of the service for DOD as a whole. See National Federation of
     Federal Employees, Local 1442 v. Department of the Army, Nos. 2014-3175,
     2014-3189, 2014 WL 6143247 (Fed. Cir. Oct. 20, 2015).
¶7        The agency also contends that the administrative judge erred in finding that
     the agency failed to conduct the furlough in a fair and even manner. PFR File,
     Tab 1 at 17-18. In determining whether the agency structured a furlough in a fair
     and even manner, a majority of the Board has held that it will not scrutinize the
     agency’s decision in a manner that second-guesses its assessments of its mission
     requirements and priorities. Avery v. Department of Labor, 120 M.S.P.R. 150,
     ¶ 10 (2013), aff’d sub nom. Berlin v. Department of Labor, 772 F.3d 890
     (Fed. Cir. 2014).   In a May 14, 2013 memorandum, the Secretary of Defense
     approved eight exceptions to the furlough applicable to agency personnel. One
     such exception was for FMS employees funded entirely from FMS administrative
     and case funds. IAF, Tab 4 at 13. Although the administrative judge found that
     FMS employees are similarly situated to the appellant, we have found no
     evidence establishing that the appellant, as a Navy WCF employee, was in fact
     paid by DHS, rather than by the agency. The Secretary of Defense’s decision to
     exempt FMS employees based on the clear source of their funding amounts to a
     spending decision about which the Board lacks the expertise to review and
     does not support a finding that the agency failed to conduct the furlough in a fair
     and even manner.
¶8        This is the final decision of the Merit Systems Protection Board in this
     appeal. Title 5 of the Code of Federal Regulations, section 1201.113(c) (5 C.F.R.
     § 1201.113(c)).
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                NOTICE TO THE APPELLANT 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 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 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
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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.
