                           UNITED STATES OF AMERICA
                        MERIT SYSTEMS PROTECTION BOARD


     SCOTT CARPENTER,                                DOCKET NUMBER
                  Appellant,                         DC-0752-13-2215-B-1

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: April 4, 2016
                 Agency.



             THIS FINAL ORDER IS NONPRECEDENTIAL 1

           Scott Carpenter, Kensington, Maryland, pro se.

           James M. Metcalfe, Esquire, Portsmouth, Virginia, 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 remand initial decision,
     which affirmed the furlough because it promoted the efficiency of the service.
     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

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        A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

     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 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 to supplement the administrative
     judge’s conclusion that the agency applied the furlough in a fair and even manner,
     we AFFIRM the remand initial decision.

                                     BACKGROUND
¶2        The appellant, an ND-04 mechanical engineer at the agency’s Naval Surface
     Warfare Center, Carderock Division, filed a Board appeal challenging the
     agency’s decision to furlough him. Carpenter v. Department of the Navy, MSPB
     Docket No. DC-0752-13-2215-I-1, Initial Appeal File (IAF), Tab 1. His appeal
     was consolidated with the appeals of other similarly situated individuals who
     were furloughed.      NSSC II v. Department of the Navy, MSPB Docket
     No. DC-0752-14-0845-I-1, Consolidation Appeal File (CAF), Tabs 1, 11. After
     holding a hearing, CAF, Tab 12, Hearing Compact Diskette (HCD), the
     administrative judge issued an initial decision in which he upheld the furlough
     because it promoted the efficiency of the service, CAF, Tab 15, Initial Decision.
¶3        The appellant filed a petition for review. Carpenter v. Department of the
     Navy, MSPB Docket No. DC-0752-13-2215-I-1, Petition for Review File, Tab 1.
     The Board found that the administrative judge should have granted the appellant’s
     discovery requests related to overtime given to similarly situated individuals,
     vacated the administrative judge’s determination that the furloughs promoted the
                                                                                      3

     efficiency of the service, and remanded the appeal for further adjudication.
     Carpenter v. Department of the Navy, MSPB Docket No. DC-0752-13-2215-I-1,
     Remand Order (May 11, 2015).
¶4         On remand, the administrative judge granted in part the appellant’s motion
     to compel in accordance with the Board’s remand order.         Remand File (RF),
     Tab 3. In the remand initial decision, the administrative judge noted that he had
     already determined that the agency was facing a lack of funds and that the
     furlough constituted a reasonable management solution to the financial
     restrictions placed on it. RF, Tab 19, Remand Initial Decision (RID) at 4, 6. The
     administrative judge further found that overtime was not strictly prohibited, the
     agency’s policy allowed it to be used judiciously, and the record did not establish
     that the agency used it to offset the effects of the furlough on any individuals.
     RID at 5-6. He therefore concluded that the furlough was applied in a fair and
     even manner and that the furlough promoted the efficiency of the service. RID
     at 6-7.
¶5         The appellant has filed a petition for review, the agency has filed a
     response, and the appellant has filed a reply.      Remand Petition for Review
     (RPFR) File, Tabs 1, 4-5. The appellant also has filed a motion to accept his
     petition for review filing as timely. RPFR file, Tab 3.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6         On review, the appellant challenges the administrative judge’s discovery
     rulings and analysis regarding Interrogatories 12 and 15 and his conclusion that
     the furlough promoted the efficiency of the service. RPFR File, Tab 1 at 4-11.
     The appellant also appears to assert that the administrative judge violated his due
     process rights and was biased against him. Id. at 5, 9. We have considered these
     arguments, but we conclude that a different outcome is not warranted. 2


     2
       In light of our disposition, we need not address the timeliness of the petition
     for review.
                                                                                             4

     The administrative judge’s discovery rulings did not constitute an abuse
     of discretion.
¶7         The Board 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). The abuse of discretion standard is “a very high standard” and allows for
     “great deference.” Pecard v. Department of Agriculture, 115 M.S.P.R. 31, ¶ 15
     (2010) (citing Lipscomb v. Department of Defense, 69 M.S.P.R. 484, 487 (1996)).
     We find no abuse of discretion in the administrative judge’s discovery rulings
     regarding Interrogatories 12 and 15.
¶8         Regarding Interrogatory 12, the administrative judge below ordered the
     agency to provide the number of “similarly situated” Navy civilians who worked
     in excess of 64 hours per pay period during any pay period in which they were
     furloughed and the total number of hours worked in excess of 64 hours per pay
     period for those workers subject to furlough. RF, Tab 3 (italics in original). The
     agency first provided information for all of the individuals in Code 80, the
     appellant’s code section at the West Bethesda location. 3 RF, Tab 6 at 9, Tab 8
     at 2. The agency subsequently agreed 4 to provide the appellant with the overtime
     and compensatory hours records for all “ND” scientists and engineers employed




     3
      The deciding official testified that a “code” is “an organizational element” such as a
     “group or team working in the same department.” HCD.
     4
       On review, the appellant challenges the administrative judge’s statement in the remand
     initial decision that the parties agreed that the agency would turn over this information.
     RPFR File, Tab 1 at 5-6; RID at 3. Rather, it appears from the Order and Summary of
     Telephonic Status Conference that only the agency agreed to provide this information.
     RF, Tab 8 at 2. Because we find no abuse of discretion in the administrative judge’s
     discovery rulings, any error or misstatement in this regard does not prejudice the
     appellant and does not warrant reversal of the remand initial decision. See Panter v.
     Department of the Air Force, 22 M.S.P.R. 281, 282 (1984).
                                                                                         5

      at West Bethesda or the Washington Navy Yard. RF, Tab 8 at 2. 5 It appears that
      the administrative judge found that the agency’s production of information was
      responsive to Interrogatory 12. Id.; RID at 3. On review, the appellant asserts
      that the agency’s response was deficient because “similarly situated” means “all
      furloughed employees.” RPFR File, Tab 1 at 6 (emphasis in original).
¶9          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.; see 5 C.F.R.
      § 351.402(b).
¶10         The appellant’s broad reading of “similarly situated” is inconsistent with
      this precedent.   Rather, we find that the agency’s production of information
      related to hours (overtime and otherwise) worked by scientists and engineers in
      the appellant’s code section and pay band at the West Bethesda and Washington
      Navy Yard locations satisfies its obligation to produce information regarding
      similarly situated employees as requested in Interrogatory 12. We therefore find
      no abuse of discretion.
¶11         Regarding Interrogatory 15, the administrative judge ordered the agency to
      provide information regarding the process for determining the number of total
      furlough hours for each employee who was “similarly situated” to the appellant.
      RF, Tab 3 (italics in original). In response, the agency stated that it “followed the
      direction provided from the Secretary of Defense . . . and the Department of the
      Navy . . . and furloughed people accordingly.” RF, Tab 6 at 10. The agency also
      directed the appellant to several submissions in its electronic administrative

      5
       The agency clarified that it would not provide information for any ND scientists and
      engineers who worked for other commands but were located at West Bethesda or the
      Washington Navy Yard. RF, Tab 9 at 4-5.
                                                                                           6

      record.   Id.; see Department of the Navy Administrative Record for FY 2013
      Furlough Appeals, available at http://www.mspb.gov/furloughappeals/navy2013.
      htm (Navy Administrative Record), Tabs 3, 6, 8, 12.              We agree with the
      administrative judge that the agency’s response complied with Interrogatory 15
      because the cited documents explain in general terms the method by which the
      agency decided to furlough employees and the amount of hours that employees
      would be furloughed. RF, Tab 8 at 3. The appellant’s explanation on review that
      he was seeking a formula that the agency used to calculate the number of furlough
      hours for each agency working capital fund employee, RPFR File, Tab 1 at 10-11
      (internal citations omitted), appears to be seeking information about how the
      agency structured the furlough.        Such information is beyond the scope of the
      Board’s review. See Chandler v. Department of the Treasury, 120 M.S.P.R. 163,
      ¶¶ 35-36 (2013) (stating that there are many ways in which agency management
      could structure the furlough but it is not the Board’s place to select from among
      them). We similarly find no abuse of discretion in the administrative judge’s
      conclusion that the agency complied with Interrogatory 15.
      The furlough promoted the efficiency of the service.
¶12         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, 120 M.S.P.R. 163, ¶ 8. In
      our Remand Order, we affirmed the administrative judge’s conclusion that the
      furloughs were a reasonable solution to the financial restrictions placed on the
      agency.      RF,   Tab 1   at 4    (discussing   Einboden   v.   Department    of   the
      Navy, 122 M.S.P.R. 302, ¶ 15, aff’d, 802 F.3d 1321 (Fed. Cir. 2015)). 6 The only

      6
       Accordingly, we need not address the appellant’s argument to the contrary in his reply
      brief. RPFR File, Tab 5 at 8.
                                                                                      7

      issue before us is whether the agency determined which employees to furlough in
      a fair and even manner.
¶13        To resolve this issue, we have considered the appellant’s arguments
      regarding the agency’s approval of overtime during the furlough period. RPFR
      File, Tab 1 at 6-9; see Chandler, 120 M.S.P.R. 163, ¶ 14 (stating that an agency’s
      decision to award certain employees overtime pay may be relevant to whether the
      agency applied the furlough uniformly and consistently). We modify the remand
      initial decision to supplement the administrative judge’s analysis, but we agree
      with his conclusion that the agency applied the furlough in a fair and
      even manner.
¶14        The Board has held that an agency’s use of overtime payments to relieve
      certain employees but not others of the financial consequences of the furlough
      may be sufficient to show that the furlough did not meet the efficiency of the
      service standard.    Chandler, 120 M.S.P.R. 163, ¶ 14.     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 without legitimate management reasons. Id., ¶ 9. The agency
      must treat similar employees similarly and must justify any deviations with
      legitimate management reasons. Id., ¶ 8.
¶15        The record reflects that the agency had a policy regarding overtime. RF,
      Tab 18, Exhibit 1.    The policy stated, in pertinent part, that “[o]vertime or
      compensatory time shall be used judiciously, and only for the highest priority
      tasks” and “overtime may not be used to compensate for lost productivity due to
      [the] furlough.” Id. The Board has held 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. Kelly v. Department of
      the Army, 121 M.S.P.R. 408, ¶ 13 (2014).
                                                                                             8

¶16         The appellant makes the following arguments on review: (1) the agency
      did not follow this policy, as evidenced by the fact that “ten employees were
      relieved by exactly the number of furlough hours they were assigned”; (2) the
      agency failed to prove that it did not use overtime hours to relieve these ten
      employees from the financial impacts of the furlough; and (3) the volume of
      overtime hours worked by employees at Carderock Division “casts considerable
      doubt” that the furlough promoted the efficiency of the service. RPFR File, Tab 1
      at 6-8. We are not persuaded by these arguments.
¶17         The fact that ten similarly situated employees may have received the same
      number of overtime hours as furlough hours does not—standing alone—warrant
      the conclusion that overtime was given to alleviate the financial consequences of
      the furlough or that the agency failed to follow its overtime policy. Rather, in
      addition to the ten employees mentioned above, many other ND scientists and
      engineers in code 80, including the appellant, 7 worked overtime hours during the
      furlough period.    RF, Tab 7 at 6-37, Tab 17 at 8-114.        This evidence does not
      support the appellant’s assertion that the agency’s use of overtime was improper. 8
      See 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



      7
        The appellant worked 31 hours of overtime during the furlough period. RF, Tab 17
      at 17.
      8
        We have considered the appellant’s assertion that the administrative judge violated his
      due process rights by first finding that the other employees were similarly situated to
      him but then concluding in the remand initial decision that he did not prove that the ten
      employees were similarly situated. RPFR File, Tab 1 at 9; RID at 6. We modify the
      remand initial decision to clarify that the burden is on the agency to prove that the
      furlough promotes the efficiency of the service. See Chandler, 120 M.S.P.R. 163, ¶ 8.
      We also assume for the purposes of our analysis that these ten individuals were
      similarly situated to the appellant. However, for the reasons discussed herein, the
      evidence as a whole supports the conclusion that the agency applied the furlough in a
      fair and even manner.
                                                                                        9

      guesses the agency’s assessment of its mission requirements and priorities), aff’d
      sub nom. Berlin v. Department of Labor, 772 F.3d 890 (Fed. Cir. 2014).
¶18         In fact, there is no evidence that the agency’s approval of overtime was at
      all connected to the furlough. The deciding official testified that he complied
      with the guidance provided to him, including a May 21, 2013 Memorandum
      which stated that Budget Scheduling Office Commanders “may not adjust
      employee work schedules to replace lost productivity or lost compensation as a
      result of the furlough.”     HCD; Navy Administrative Record, Tab 8. 9          The
      deciding official testified without contradiction that he determined which
      employees to furlough based on whether the individual employee occupied a
      position that had been excepted from the furlough. HCD; CAF, Tab 6 at 34-36.
      The appellant has not identified on review any individual who was improperly
      excepted from the furlough, nor does he assert that he should have been excepted
      from the furlough.
¶19         Based on our review of the record, we conclude that the agency applied the
      furlough fairly and evenly. See Rodgers v. Department of the Navy, 122 M.S.P.R.
      559, ¶ 16 (2015) (affirming the administrative judge’s conclusion that the agency
      fairly and evenly applied the furlough in the appellant’s situation because, among
      other things, there was no indication in the record that the appellant or other Navy
      Munitions Command employees were targeted for personal reasons or that the
      agency exempted any employees without a legitimate management reason). We
      also affirm the administrative judge’s conclusion that the furlough promoted the
      efficiency of the service.




      9
        The May 21, 2013 Memorandum also referenced a February 21, 2013 Memorandum
      which stated that major commands “may not use contract funding or premium pay (e.g.,
      compensatory time or overtime) to offset lost time under the furlough.” Navy
      Administrative Record, Tabs 8, 25.
                                                                                       10

      The appellant did not prove administrative judge bias.
¶20        In making a claim of bias or prejudice against an administrative judge, a
      party must overcome the presumption of honesty and integrity that accompanies
      administrative adjudicators. Oliver v. Department of Transportation, 1 M.S.P.R.
      382, 386 (1980). An administrative judge’s conduct during the course of a Board
      proceeding warrants a new adjudication only if the administrative judge’s
      comments or actions evidence “a deep-seated favoritism or antagonism that would
      make fair judgment impossible.” Bieber v. Department of the Army, 287 F.3d
      1358, 1362-63 (Fed. Cir. 2002) (quoting Liteky v. United States, 510 U.S. 540,
      555 (1994)). The appellant has not made such a showing.

                      NOTICE TO THE APPELLANT REGARDING
                         YOUR FURTHER REVIEW RIGHTS
            The remand 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
      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
                                                                                    11

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 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.
