                          UNITED STATES OF AMERICA
                       MERIT SYSTEMS PROTECTION BOARD


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

                  v.

     DEPARTMENT OF THE NAVY,                         DATE: May 11, 2015
                 Agency.



                  THIS ORDER IS NO NPRECEDENTIAL 2

           Scott Carpenter, Kensington, Maryland, pro se.

           James M. Metcalfe, Portsmouth, Virginia, for the agency.


                                           BEFORE

                              Susan Tsui Grundmann, Chairman
                                 Mark A. Robbins, Member


                                     REMAND ORDER

¶1        The appellant has filed a petition for review of the initial decision, which
     affirmed the furlough action and found that the appellant did not prove any of his
     affirmative defenses.     For the reasons discussed below, we GRANT the


     1
      Pursuant to 5 C.F.R. § 1201.36(a), this appeal was part of a consolidation. NSSC II v.
     Department of the Navy, DC-0752-14-0845-I-1.
     2
        A nonprecedential order is one that the Board has determined does not add
     sign ificantly 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 Parties may cite nonprecedential orders,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

     appellant’s   petition   for   review,   VACATE     the   administrative    judge’s
     determination that the furlough promoted the efficiency of the service, AFFIRM
     all other findings in the initial decision, and REMAND the case to the regional
     office for further adjudication in accordance with this Remand Order.

                                      BACKGROUND
¶2        The agency furloughed the appellant, an Engineer in the Naval Surface
     Warfare Center (NSWC) Carderock Division, for 6 days.         Initial Appeal File
     (IAF), Tab 1 at 8-11 (notice of proposed furlough), 12-16 (notice of decision), 17
     (Furlough Standard Form 50, showing that he would be furloughed on
     discontinuous days between July 8, 2013, and September 27, 2013); see IAF,
     Tab 5. The appellant filed a Board appeal, and he requested a hearing. See IAF,
     Tabs 1-2.
¶3        The appellant was informed that his appeal was consolidated with the
     appeals of similarly situated employees.   NSSC II v. Department of the Navy,
     MSPB Docket No. DC-0752-14-0845-I-1, Consolidated Appeal File (CAF),
     Tab 1.      The appellant filed a motion to compel discovery, which the
     administrative judge granted in part and denied in part. See IAF, Tabs 6, 9. The
     appellant filed a motion to certify an interlocutory appeal based on the
     administrative judge’s order      regarding the   motion to compel,        and the
     administrative judge denied this motion. See IAF, Tabs 10, 12. A hearing was
     held. See Hearing Transcript (HT).
¶4        The administrative judge issued an initial decision in which he found that:
     (1) the agency established that it faced a lack of funds; (2) furloughs were a
     reasonable management solution to this problem; and (3) the agency determined
     which employees to furlough in a fair and even manner. CAF, Tab 15, Initial
     Decision (ID) at 15-17. The administrative judge therefore concluded that the
     agency proved the factual basis for the furloughs and that the furloughs promoted
     the efficiency of the service. ID at 17. The administrative judge further found
                                                                                        3

     that the appellants failed to establish any of their affirmative defenses, including,
     as relevant here, that the furlough did not apply to Working Capital Fund (WCF)
     employees. See ID at 17-20. Regarding the affirmative defenses raised only by
     the appellant, the administrative judge determined that the appellant did not prove
     that the furlough was not in accordance with law or that the agency committed
     harmful procedural error. See ID at 20-23.
¶5        The appellant filed a petition for review, the agency filed a response, and
     the appellant filed a reply. Petition for Review (PFR) File, Tabs 1, 5-6.

                     DISCUSSION OF ARGUMENTS ON REVIEW
¶6        On review, the appellant challenges the basis for the furlough, arguing that
     he was paid through WCFs that were exempt from sequester and that the agency
     did not have cause to furlough him. PFR File, Tab 1 at 7-11. He further argues
     that he was afforded “empty” process because the agency did not consider his
     reply and no “legal review” was conducted. Id. at 11-13. He also asserts that he
     was improperly denied discovery, and he explains that he sought information
     related to whether the furlough was conducted in a fair and even manner. Id.
     at 13-18.
     Standard of review of a furlough appeal
¶7        A furlough is the placing of an employee in a temporary status without
     duties and pay because of a lack of work or funds or other nondisciplinary
     reasons. 5 U.S.C. § 7511(a)(5); 5 C.F.R. § 752.402. Furloughs of 30 days or
     less, as here, are reviewable under the “efficiency of the service” standard found
     in 5 U.S.C. § 7513(a). Chandler v. Department of the Treasury, 120 M.S.P.R.
     163, ¶ 5 (2013).    An agency satisfies this standard in a furlough appeal by
     showing that the furlough was a reasonable management solution to the financial
     restrictions placed on it and that the agency applied in a fair and even manner its
     determination as to which employees to furlough. Id., ¶ 8.
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      The appellant’s argument that he was paid from WCFs does not persuade us that a
      different outcome is warranted.
¶8         Since the parties filed their petition for review submissions, the Board
      addressed, in a precedential decision, an argument that WCFs were exempt from
      sequester. See Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶¶ 13-18.
      In pertinent part in Einboden, the Board stated that, even if WCFs were exempt
      from a sequestration order, “such an interpretation would not end our inquiry into
      whether there were financial restrictions placed on the agency and whether the
      furlough was a reasonable management solution to these restrictions.” Id., ¶ 13
      (citing Chandler, 120 M.S.P.R. 163, ¶ 8).           After discussing the various
      restrictions placed upon the agency, and noting that it was reasonable for the
      Department of Defense to consider its budget situation holistically, rather than
      isolating the situation of each individual Navy organization or component, the
      Board concluded that the furlough action was a reasonable management solution
      to those financial restrictions. Einboden, 122 M.S.P.R. 302, ¶¶ 14-18. The Board
      therefore found that that the agency met its burden of proof. Id., ¶ 18.
¶9         The Board’s decision in Einboden controls our analysis of the WCF
      argument raised by the appellant on review. Even if the appellant’s WCF were
      exempt from a sequestration order, the Board would still need to consider whether
      the furlough was a reasonable management solution to the financial restrictions
      placed upon the agency.        The appellant has not persuaded us that the
      administrative judge erred in this regard, see ID at 15-17, and we affirm his
      conclusion herein.
      The appellant has not proven his affirmative defenses.
¶10        Harmful error under 5 U.S.C. § 7701(c)(2)(A) cannot be presumed; an
      agency error is harmful only where the record shows that the procedural error was
      likely to have caused the agency to reach a conclusion different from the one it
      would have reached in the absence or cure of the error. Stephen v. Department of
      the Air Force, 47 M.S.P.R. 672, 681, 685 (1991).
                                                                                               5

¶11         As a factual matter, the record does not support the appellant’s assertion
      that the agency did not consider his response to the notice of proposed furlough.
      To the contrary, the deciding official testified that he reviewed “all the
      responses” and he consulted with the agency’s attorney if he had questions
      regarding individual responses. See HT at 62, 66-69. That the notice of decision
      may not have addressed the appellant’s specific arguments in his response does
      not mean that the arguments were not considered or that the agency committed
      harmful procedural error. See, e.g., Salo v. Department of Defense, 2015 MSPB
      14, ¶¶ 8-9 (noting that Mr. Salo did not identify any regulatory, statutory, or
      judicially imposed requirement that the agency must specifically address all
      arguments raised in a response to a proposal notice, and concluding that the
      appellant has not shown that any alleged error likely caused the agency to reach a
      conclusion different from the one it would have reached in the absence or cure of
      the error). 3




      3
         Even if we considered the appellant’s assertion that he was denied due process
      because he was not given any specific notice of the furlough and his response was not
      meaningful because the notice of decision was a form letter, see PFR File, Tab 1
      at 12-13 & n.9, this argument does not warrant a d ifferent outcome. The appellant
      correctly notes that the “core” of due process is “the right to notice and a meaningful
      opportunity to be heard.” Id. at 12 n.9 (citing Lachance v. Erickson, 522 U.S. 262, 266
      (1998)). Based on our review of the record, we conclude that he received all of the
      process to which he was entitled. For instance, the notice of proposed furlough gives
      him ample notice of the reasons for the furlough. See IAF, Tab 1 at 8-11. Although we
      could not find the appellant’s response to the notice of proposed furlough in the record,
      it appears undisputed that the appellant submitted a written response. The record
      reflects that the appellant had a meaningful opportunity to be heard because he admits
      on review that he “raised legal questions” in h is response, PFR File, Tab 1 at 12, and, as
      noted above, the deciding official testified that he considered all responses and
      consulted with an attorney when necessary. Cf. Hodges v. U.S. Postal Service,
      118 M.S.P.R. 591, ¶ 6 (2012) (An employee cannot be said to have had a meaningfu l
      opportunity to present his side of the story and to invoke the discretion of the deciding
      official if the deciding official did not read the employee’s written response to the
      proposal notice before issuing his decision).
                                                                                      6

      The administrative judge abused his discretion by not granting in part the motion
      to compel regarding interrogatories 12 and 15 and the corresponding requests for
      production of documents.
¶12        Discovery is the process by which a party may obtain relevant information
      from another person or a party that the other person or party has not otherwise
      provided.   Chandler, 120 M.S.P.R. 163, ¶ 10; see 5 C.F.R. § 1201.72(a).
      Relevant information includes information that appears reasonably calculated to
      lead to the discovery of admissible evidence. Chandler, 120 M.S.P.R. 163, ¶ 10.
      What constitutes relevant information in discovery is to be liberally interpreted,
      and uncertainty should be resolved in favor of the movant absent any undue delay
      or hardship caused by such request. Id. Discoverable information is not without
      boundaries, however, and the requesting party must ultimately show that the
      information sought is relevant or is likely to lead to relevant evidence. Id.; see
      5 C.F.R. § 1201.72(b). An administrative judge has broad discretion in ruling on
      discovery matters, and, absent a showing of an abuse of discretion, the Board will
      not find reversible error in such rulings.       Vaughn v. Department of the
      Treasury, 119 M.S.P.R. 605, ¶ 15 (2013).
¶13        The administrative judge denied many of the appellant’s interrogatories and
      corresponding requests for production of documents. See IAF, Tab 9. We are
      limiting the scope of our review to the interrogatories and corresponding requests
      for production of documents raised by the appellant on review, namely
      interrogatories 1-9, 12-13, and 15-18. See PFR File, Tab 1. For the following
      reasons, we affirm the administrative judge’s decision to deny the motion to
      compel regarding interrogatories 1-9, 13, and 16-18 and the corresponding
      request for production of documents, but we grant the motion to compel in part
      regarding interrogatories 12 and 15 and the corresponding request for production
      of documents.
                                                                                       7

      Interrogatories 1-9
¶14        Interrogatories 1-9 requested information regarding the financial stability of
      NSWC Carderock and the Navy WCF as a whole, including information such as
      cash balance, carry-over balance, value of funded orders, total dollar amount of
      active obligations, total number and amount of orders de-obligated or withdrawn
      due to the sequester. See IAF, Tab 6 at 10. The administrative judge denied the
      motion to compel regarding these interrogatories because the information relating
      to the budget and funding was not relevant under Chandler. IAF, Tab 9 at 1. The
      appellant asserts on review that interrogatories 1-9 relate to whether there was
      “cause” for the furlough of NSWC Carderock employees.             PFR File, Tab 1
      at 14-15 (citing Dye v. Department of the Army, 121 M.S.P.R. 142 (2014)). We
      discern no error with the administrative judge’s analysis because the efficiency of
      the service determination does not encompass agency spending decisions per se.
      See Chandler, 120 M.S.P.R. 163, ¶ 9 (explaining that such matters belong to the
      judgment of the agency managers who are in the best position to decide what
      allocation of funding will best allow the agency to accomplish its mission).
      Moreover, the Board, in Dye, 121 M.S.P.R. 142, ¶ 9, explained that the concept of
      “cause” in the context of a furlough appeal encompasses whether the appellant
      met the criteria established by the agency for being subject to, and not excepted
      from, the furlough. Other than the WCF issue discussed above, see supra ¶¶ 8-9,
      the appellant has not persuaded us that the requested information is reasonably
      calculated to lead to the discovery of admissible evidence in this regard.     We
      therefore affirm the administrative judge’s decision in this regard.
      Interrogatories 17-18
¶15        Interrogatories 17-18 sought “all bases, legal or otherwise” for the deciding
      official’s response to the appellant’s response to the notice of proposed furlough
      and “all bases legal or otherwise” for the Undersecretary of Defense’s declaration
      that the furlough was not illegal pursuant to 10 U.S.C. § 129, respectively. IAF,
      Tab 6 at 11.    Noting that the agency indicated that it already provided this
                                                                                      8

      information to the appellant, the administrative judge denied the motion to
      compel, and she informed the appellant that he could file a motion to compel any
      relevant non-privileged information that has not been provided to him.       IAF,
      Tab 9 at 2. The appellant did not file a subsequent motion to compel, and, on
      review, he essentially reiterates the reasons for these interrogatories. See PFR
      File, Tab 1 at 17-18.         The appellant has not identified any relevant,
      non-privileged information that the agency did not provide, and we cannot
      conclude that the information sought in interrogatories 17-18 is reasonably
      calculated to lead to the discovery of admissible evidence. Here, too, we affirm
      the administrative judge’s decision in this regard.
      Interrogatories 12-16
¶16        Interrogatory 12 sought information regarding the number of Navy civilians
      who worked overtime during the pay periods that the employees were subject to
      the furlough, and interrogatory 13 sought the same information as interrogatory
      12 “for the Department of Defense as a whole.” IAF, Tab 6 at 10. Interrogatory
      15 sought “information” regarding the process for determining the number of
      total furlough hours for each employee and interrogatory 16 sought “information”
      regarding the decision to apply the furlough to the entire Department of Defense.
      Id. at 10-11.     The administrative judge found that information sought in
      interrogatories 12-13 and 15-16 concerned civilians stationed outside of his duty
      station and chain of command, and thus these individuals were not similarly
      situated to the appellant. IAF, Tab 9 at 1-2 (citing Weathers v. Department of the
      Navy, 121 M.S.P.R. 417, ¶ 8 (2014)).       On review, the appellant contends that
      interrogatories 12-13 were relevant to ascertain whether the furlough was applied
      fairly and evenly and interrogatories 15-16 “directly relate[] to the cause of
      action” against him. PFR File, Tab 1 at 15-17.
¶17        The Board has broadly pronounced that information regarding overtime
      given to employees is relevant to whether the agency applied the furlough
      uniformly and consistently. See Chandler, 120 M.S.P.R. 163, ¶ 14. The Board
                                                                                        9

      has also stated that employees who work in different competitive areas and for
      different organizational units are generally not considered to be similarly situated
      for purposes of determining whether the agency proved that it applied its
      determination as to which employees to furlough in a fair and even manner. See
      Weathers, 121 M.S.P.R. 417, ¶¶ 8-9.      A competitive area is generally defined
      solely in terms of the agency’s organizational units and geographical location,
      and the minimum competitive area is a subdivision of the agency under separate
      administration within the local commuting area.         Id., ¶ 8 (citing 5 C.F.R.
      § 351.402(b)).
¶18        Given our precedent in Chandler and Weathers, we conclude that the
      administrative judge abused his discretion when he denied in its entirety the
      appellant’s motion to compel regarding interrogatories 12 and 15 and the
      corresponding request     for documents.       Regarding interrogatory 12, the
      administrative judge should have granted in part the motion to compel to allow
      the appellant to obtain information regarding similarly situated agency employees
      who worked overtime, as this information may be relevant to whether the agency
      applied the furlough fairly and evenly. Regarding interrogatory 15, the Board
      noted in Chandler that the length of the furlough imposed on similarly situated
      people is relevant to the determination of whether the furlough was conducted in
      a uniform and consistent manner. See Chandler, 120 M.S.P.R. 163, ¶ 20. The
      administrative judge also should have granted the motion to compel in part and
      limited interrogatory 15 to similarly situated employees.
¶19        We affirm the administrative judge’s decision to deny the motion to compel
      regarding interrogatories 13 and 16, which apply to the Department of Defense as
      a whole and not to any individuals similarly situated to the appellant.         See
      Weathers, 120 M.S.P.R. 617, ¶ 8.
¶20        In light of our disposition regarding interrogatories 12 and 15 and the
      corresponding requests for production of documents, we vacate the administrative
      judge’s finding that the furlough promoted the efficiency of the service and
                                                                                  10

REMAND for further proceedings because these discovery requests sought
relevant information under 5 C.F.R. § 1201.72(a). 4

                                      ORDER
     For the reasons discussed above, we REMAND this case to the regional
office for further adjudication in accordance with this Remand Order.




FOR THE BOARD:                            ______________________________
                                          William D. Spencer
                                          Clerk of the Board
Washington, D.C.




4
  To the extent that the appellant asserts on review that the administrative judge
improperly denied his motion to certify an interlocutory appeal, we are not persuaded
that this argument warrants a different outcome. See 5 C.F.R. § 1201.92.
