Dale v. Department of the Navy ( 2017 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD C. DALE,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2016-2488
______________________
Petition for review of the Merit Systems Protection
Board in No. PH-0752-13-1318-I-1.
______________________
Decided: August 14, 2017
______________________
RICHARD C. DALE, Richmond, RI, pro se.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
CHAD A. READLER, ROBERT E. KIRSCHMAN, JR., ELIZABETH
M. HOSFORD.
______________________
Before O’MALLEY, REYNA, and TARANTO,
Circuit Judges.
2 DALE v. NAVY
PER CURIAM.
The Merit Systems Protection Board affirmed the
United States Department of the Navy’s decision to
furlough various civilian employees in 2013, including
Richard Dale. Mr. Dale appeals from the Board’s deci-
sion, arguing that the Navy improperly furloughed him.
Because we find no legal error in the Board’s analysis and
substantial evidence supports the Board’s findings, we
affirm.
BACKGROUND
1. The Sequester and Furlough
This appeal stems from events set in motion by the
Budget Control Act of 2011 (“BCA”). The BCA sought to
limit federal agency spending by creating automatic
budget reductions known as “sequestration” if Congress
failed to enact deficit reduction legislation by January 15,
2013. Pub. L. No. 112-25, §§ 101–103, 125 Stat. 240, 241–
46 (2011). Congress later passed the American Taxpayer
Relief Act of 2012, Pub. L. No. 112-240, § 901, 126 Stat.
2313, 2370 (2012), which delayed sequestration until
March 1, 2013. Congress did not enact deficit reduction
legislation by March 1, 2013; therefore, President Obama
issued the required sequestration order on that date. 78
Fed. Reg. 14,633. The sequestration order canceled $85
billion in resources across the federal government for the
remainder of fiscal year 2013. Of that total, the Depart-
ment of Defense (“DoD”) suffered a $37 billion cancella-
tion. J.A. 226; Calhoun v. Dep’t of the Army, 845 F.3d
1176, 1177 (Fed. Cir. 2017).
In May 2013, Secretary of Defense Chuck Hagel is-
sued a Memorandum stating that DoD managers should
prepare to furlough most civilian personnel for up to 11
days due to “[m]ajor budgetary shortfalls.” J.A. 245.
Secretary Hagel’s May 2013 Memorandum exempted
DALE v. NAVY 3
several categories of DoD employees from furlough. J.A.
246–47; see also J.A. 227 (summarizing categories).
Mr. Dale is employed as an attorney in the Navy’s Of-
fice of General Counsel. On May 28, 2013, Mr. Dale was
issued a Notice of Proposed Furlough. The May 2013
Notice stated that the Navy proposed to furlough
Mr. Dale no earlier than 30 days after his receipt of the
notice. It further stated that the furlough “is necessitated
by the extraordinary and serious budgetary challenges
facing [DoD] for the remainder of Fiscal Year (FY) 2013,
the most serious of which is the sequester that began on
March 1, 2013.” J.A. 223.
On June 24, 2013, Mary Wohlgemuth, Technical Di-
rector, Naval Undersea Warfare Center (“NUWC”) Divi-
sion, Newport, Rhode Island, issued to Mr. Dale a Notice
of Decision to Furlough. The June 2013 Notice upheld the
reasoning provided in the Notice of Proposed Furlough
and required Mr. Dale to be on discontinuous furlough for
up to 11 workdays between July 8, 2013 and September
30, 2013. The June 2013 Notice advised Mr. Dale of his
right to appeal the Navy’s furlough decision to the Board.
In July 2013, Mr. Dale filed an appeal with the Board. In
August 2013, following congressional and agency budget-
ary action, Secretary Hagel reduced the furlough from 11
days to 6 days.
2. Appeal to the Board
a. Discovery Dispute
On appeal before the Board, Mr. Dale sought discov-
ery from the Navy, including broad interrogatories re-
garding communications between the Navy and the
Board. After the Navy objected, Mr. Dale moved to com-
pel responses from the Navy and moved for sanctions. In
December 2015, the administrative judge (“AJ”) granted
Mr. Dale’s motion in part, ordering the Navy to respond to
4 DALE v. NAVY
certain interrogatories and deposition requests. J.A. 95–
96. The Navy provided updated responses.
Still unsatisfied, Mr. Dale filed a second motion to
compel and for sanctions in January 2016. The AJ denied
Mr. Dale’s January 2016 motion. The AJ wrote that
Mr. Dale did not establish that the information he sought
would be reasonably calculated to lead to admissible
evidence. The AJ also noted that the Navy provided a
sworn declaration stating that, although the Navy and
the Board communicated regarding the furlough appeals,
those communications were limited to administrative
information. J.A. 135. The AJ concluded that the com-
munications between the Navy and the Board were not
prohibited ex parte communications and that they did not
substantively affect Mr. Dale’s appeal. Id. Mr. Dale
moved to certify an interlocutory appeal regarding the
discovery dispute, which the AJ denied.
b. Initial Decision
In a May 16, 2016 initial decision, the AJ affirmed the
Navy’s actions after concluding that the Navy “has proven
by preponderant evidence that there was a factual basis
for the furlough actions and that the furlough actions
were taken only for such cause as promoted the efficiency
of service.” J.A. 225. In support of its conclusion, the AJ
cited a declaration by Robert Hale, the Under Secretary of
Defense (Comptroller)/Chief Financial Officer of DoD.
Comptroller Hale explained that DoD had begun as early
as February 2013 to slow spending in anticipation of a
possible sequester. He explained additional cuts that
occurred in April 2013. These cuts, however, were not
sufficient to limit spending to congressionally mandated
levels without civilian furloughs.
The AJ also cited a declaration by Ms. Wohlgemuth,
who was the deciding official for civilian employees of the
NUWC Division Newport, including Mr. Dale.
Ms. Wohlgemuth stated that she followed the Navy’s
DALE v. NAVY 5
furlough guidance, reviewed the civilian employees’
replies, and exempted 104 employees who fit within the
various exempt categories. J.A. 227. Ms. Wohlgemuth
determined that Mr. Dale did not fit any category for
exemption. J.A. 227–28.
The AJ summarized and rejected each of Mr. Dale’s
arguments on appeal. First, Mr. Dale argued that the
Navy failed to fairly and evenly furlough employees
because certain civilians, such as shipyard employees,
were granted exemptions. The AJ noted that Mr. Dale
never alleged that he was a shipyard employee or offered
evidence that his position was similarly situated to ship-
yard employees. J.A. 228. The AJ thus found that the
Navy fairly and evenly applied its furlough criteria. Id.
Second, Mr. Dale argued that his status as a Working
Capital Fund or NUWC employee should have exempted
him from furlough. In Mr. Dale’s view, the Navy pro-
cessed his furlough in violation of the Balanced Budget
and Emergency Deficit Control Act of 1985 (“BBEDCA”),
the BCA, and 10 U.S.C. § 129. Section 129 requires DoD
to manage each fiscal year consistent with “the workload
required to carry out [its] functions and activities” and
“the funds made available” to DoD each fiscal year. The
AJ cited Comptroller Hale’s declaration that the furloughs
saved personnel costs and did not contravene § 129, which
requires DoD to manage its workforce based on the funds
allocated to it each fiscal year. J.A. 229. Finding that
Mr. Dale failed to refute Comptroller Hale’s declaration,
the AJ determined that the Navy did not violate § 129.
The AJ further found that Mr. Dale failed to substantiate
his claim that he was exempt pursuant to the BBEDCA or
BCA. Id.
Third, Mr. Dale argued that Secretary Hagel failed to
give adequate notice of the furlough, in violation of 10
U.S.C. § 1597(e). Section 1597(e) requires the Secretary
of Defense to provide a report to Congress about why
6 DALE v. NAVY
furloughs are required and then wait at least 45 days
before instituting the furlough. The AJ found that Secre-
tary Hagel complied with § 1597(e) because he submitted
a notice to Congress on February 20, 2013 and issued the
notices of furlough in June 2013. J.A. 229–30. Therefore,
the AJ concluded, Mr. Dale’s argument was “without
merit.” J.A. 230.
Fourth, Mr. Dale argued that the Navy had enough
funds to avoid the furlough and that its spending and
furlough decisions were politically motivated. The AJ
determined that “it was reasonable for D[o]D to consider
its situation holistically, rather than isolating each indi-
vidual military department’s situation.” J.A. 230. The AJ
also found that, because the Navy’s basis for invoking the
furlough was legitimate, the AJ had “no authority to
review the management considerations that underlie the
agency’s exercise of its discretion in structuring the
furlough actions.” Id.
Fifth, Mr. Dale argued that the Navy violated his due
process rights because “the proposing and deciding official
had no independent authority based on Secretary Hagel’s
decision to furlough all civilian employees.” Id. The AJ
explained that due process requires a meaningful oppor-
tunity to respond to a notice of proposed furlough. Due
process further requires a deciding official who has the
authority to take or recommend agency action based on
that response. Citing Ms. Wohlgemuth’s declaration, the
AJ found that Mr. Dale received “notice of the proposed
furlough actions, an opportunity to review the supporting
materials, and an opportunity to respond to the proposal.”
J.A. 231. Ms. Wohlgemuth testified that she had authori-
ty to modify the furlough length based on employees’
responses to the notice of proposed furlough. The AJ
found Ms. Wohlgemuth’s testimony was consistent with
Secretary Hagel’s statement and unrefuted by Mr. Dale.
Id. Based on this evidence, the AJ concluded that the
Navy did not violate Mr. Dale’s due process rights.
DALE v. NAVY 7
Finally, Mr. Dale argued that the Navy violated Sec-
retary of the Navy Instruction (“SECNAVINST”)
5430.25E MD-13, which states that all personnel actions
involving attorneys must be subject to the approval of the
General Counsel. The Navy submitted a June 11, 2013
memorandum entitled “Delegation of Authority to Fur-
lough Office of General Counsel (OGC) Attorneys,” which
addressed Section 5430.25E and delegated authority of
the General Counsel to decide whether to furlough OGC
attorneys to the deciding officials. J.A. 232. Mr. Dale did
not dispute the existence of the memo, and the AJ deter-
mined that he failed to establish a violation of Section
5430.25E. Even if there were a violation, the AJ noted,
Mr. Dale failed to prove that the furlough decisions would
have been different absent the error. J.A. 233. Based on
this evidence, the AJ found that Mr. Dale failed to prove
harmful error in the Navy’s furlough actions and affirmed
the Navy’s action. Id.
The AJ’s decision became final on June 20, 2016.
Mr. Dale appeals from the final decision. We have juris-
diction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Congress requires us to affirm Board decisions unless
they are “(1) arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law; (2) obtained
without procedures required by law, rule, or regulation
having been followed; or (3) unsupported by substantial
evidence.” 5 U.S.C. § 7703(c). As the petitioner, Mr. Dale
bears the burden of proving that the Board erred. Jones
v. Dep’t of Health & Human Servs., 834 F.3d 1361, 1366
(Fed. Cir. 2016). Mr. Dale must also prove that any
agency error substantially harmed or prejudiced him,
such that the outcome of the case could have been differ-
ent. 5 C.F.R. § 1201.56(b)(1), (c)(3) (2005); Whitmore
v. Dep’t of Labor, 680 F.3d 1353, 1368 (Fed. Cir. 2012).
8 DALE v. NAVY
On appeal before this court, Mr. Dale raises many of
the same issues he raised before the Board. First, he
argues that he was improperly denied discovery. Relying
on Templeton v. Office of Personnel Management, 951 F.2d
338, 342 (Fed. Cir. 1991), Mr. Dale contends that employ-
ees are permitted broad discovery against their employ-
ers. He concedes, however, that “[p]rocedural matters
relative to discovery and evidentiary issues fall within the
sound discretion of the board and its officials.” Smith
v. Dep’t of the Air Force, 638 F. App’x 992, 995 (Fed. Cir.
2016) (quoting Curtin v. Office of Pers. Mgmt., 846 F.2d
1371, 1378 (Fed. Cir. 1988)). Thus, we review this matter
for abuse of discretion. The AJ determined that the Navy
provided adequate responses to Mr. Dale’s discovery
requests and that further responses would not have
resulted in relevant information reasonably calculated to
lead to admissible evidence. J.A. 134–36. Mr. Dale has
not raised any argument on appeal demonstrating that
the AJ’s determination was an abuse of discretion. He
also has not demonstrated, as he must, that the outcome
of the case could have been different if the AJ allowed the
discovery. See Whitmore, 680 F.3d at 1368.
Second, Mr. Dale appears to argue that the Navy en-
gaged in improper ex parte communications with the
Board. Board regulations prohibit “ex parte communica-
tions that concern the merits of any matter before the
Board for adjudication, or that otherwise violate rules
requiring written submissions.” 5 C.F.R. § 1201.102. As
Mr. Dale correctly concedes, however, “under Board
practice, ex parte communications are not prohibited per
se.” Opening Br. 21. Mr. Dale does not does not persuade
us that the Navy’s communication with the Board was
improper in this case. He cites four proposals that the
Navy sent the Board on July 10, 2013, in anticipation of
“the unprecedented volume of appeals from one DoD
component alone.” J.A. 243. All four proposals, however,
were procedural and not substantive. The July 10, 2013
DALE v. NAVY 9
communication did not concern the merits of Mr. Dale’s
appeal and thus was permissible. The Board’s July 23,
2013 response to the Navy similarly discussed only proce-
dural methods for managing the influx of appeals. See
J.A. 241–42. We agree with the Board that the ex parte
communications between the Navy and the Board were
not improper.
Mr. Dale next argues that the Navy failed to provide
him adequate notice and an opportunity to respond to the
notice of furlough. According to Mr. Dale,
Ms. Wohlgemuth “lacked the authority to do anything
other than confirm the DoD’s directed furlough.” Opening
Br. 34. Mr. Dale asserts that DoD directed the Navy to
furlough employees and restricted the Navy’s discretion in
deciding furlough cases. The record indicates, however,
that Ms. Wohlgemuth possessed sufficient discretion to
comport with due process. She testified that, after re-
viewing employees’ responses, she exempted over 100
employees. J.A. 227.
We recently held that due process does not require the
deciding official to have “unfettered discretion”; rather,
she need only have “authority to take or recommend
action.” Calhoun, 845 F.3d at 1179. In Calhoun, we
concluded that the appellant’s due process rights were not
violated when the deciding official’s discretion was limited
to determining whether the petition fell within one of the
exemption categories or whether furlough hours should be
reduced. Id. So too here, Ms. Wohlgemuth had discretion
to take or recommend action—and did so for over 100
employees. J.A. 227, 231, 319. We find such discretion to
be “commensurate with the nature of the furlough deci-
sions.” Calhoun, 845 F.3d at 1179.
Next, Mr. Dale argues that the furlough violated 5
C.F.R. § 752.404, which sets forth procedures governing
proposed action. Section 752.404(b)(1) requires the agen-
cy to “state the specific reason(s) for the proposed action.”
10 DALE v. NAVY
Mr. Dale contends that his notice of proposed action
“never stated the basis for selecting Mr. Dale himself” and
“never discussed the establishment of competitive levels”
necessary to distinguish which employees should be
furloughed from those who should not. Opening Br. 45.
As the Government points out, however, an agency “must
state the basis for selecting a particular employee for
furlough” only if “some but not all employees in a given
competitive level are being furloughed.” § 752.404(b)(2).
Mr. Dale fails to allege, and we do not discern anything in
the record to suggest, that some employees within
Mr. Dale’s competitive level were not furloughed. See J.A.
8–9 (providing reasons “if” other employees are not fur-
loughed or furloughed for a different amount of time, but
not stating any differences actually occurred). Thus,
§ 752.404(b)(2) does not apply, and the Navy was not
required to state the basis for furloughing Mr. Dale in
particular.
Mr. Dale next alleges that the Navy violated the ver-
sion of 10 U.S.C. § 129(b) in effect at the time of the
furlough. Specifically, Mr. Dale argues that the furlough
“constituted a prohibited constraint or limitation in terms
of man years.” Opening Br. 50. We agree with the Gov-
ernment that the Navy was required to manage its fiscal
year “solely on the basis of and consistent with” the
required workload and the available funds. 10 U.S.C.
§ 129(a) (2011). Comptroller Hale stated that a short-
term furlough comported with § 129, J.A. 303, and while
we do not defer to legal conclusions, we agree with Comp-
troller Hale’s assessment here. Substantial evidence
supports finding that the furloughs were necessary to
comply with § 129(a), and Mr. Dale has failed to explain
how the six-day furlough violates § 129(b) by constraining
or limiting man years.
Finally, Mr. Dale asserts that the Navy violated
SECNAVINST 5430.25E. That instruction requires “all
personnel actions involving OGC attorneys” to be “subject
DALE v. NAVY 11
to the approval of the General Counsel.” J.A. 277. The
General Counsel of the Navy did not make the furlough
decision, argues Mr. Dale, nor was the decision subject to
the General Counsel’s approval. Mr. Dale acknowledges
that the General Counsel delegated furlough authority to
the deciding official. See J.A. 232–33, 294–95. But he
argues that the instruction does not provide for delega-
tion. We agree with the Government that the relevant
inquiry is not whether the instruction affirmatively
allowed delegation but whether it prohibited delegation.
Here, we find no indication that the General Counsel was
prohibited from delegating the furlough authority under
these circumstances. We thus find no violation of
SECNAVINST 5430.25E.
CONCLUSION
We have considered the remainder of Mr. Dale’s ar-
guments and find them to be unpersuasive. The Board
properly applied the law to Mr. Dale’s appeal, and sub-
stantial evidence supports its findings. We therefore
affirm the Board’s final decision.
AFFIRMED
COSTS
No costs.