Snyder v. Department of the Navy ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
VICTORIA SNYDER,
Petitioner
v.
DEPARTMENT OF THE NAVY,
Respondent
______________________
2016-1940
______________________
Petition for review of the Merit Systems Protection
Board in No. DC-0752-13-6201-I-1.
______________________
Decided: April 26, 2017
______________________
MICHAEL GRAHAM, Fredericksburg, VA, argued for pe-
titioner.
HILLARY STERN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., ALLISON
KIDD-MILLER.
______________________
Before REYNA, LINN, and CHEN, Circuit Judges.
CHEN, Circuit Judge.
2 SNYDER v. NAVY
Victoria Snyder appeals the Final Decision of the Mer-
it Systems Protection Board (Board) affirming the deci-
sion of the Department of the Navy (Navy) to furlough her
for six days between July and September of 2013 as a
result of the federal government sequestration of 2013.
Because we find no reversible error in the Board’s deci-
sion, we affirm.
BACKGROUND
I.
This case is one of many that arise from the seques-
tration legislation adopted by Congress (i.e., the Budget
Control Act of 2011 and the American Taxpayer Relief Act
of 2012). 1 See, e.g., Calhoun v. Dep’t of the Army, 845 F.3d
1176, 1177 (Fed. Cir. 2017); Nat’l Fed’n of Fed. Emps.,
Local 1442 v. Dep’t of the Army, 810 F.3d 1272, 1273–75
(Fed. Cir. 2015) (NFFE); Einboden v. Dep’t of the Navy,
802 F.3d 1321, 1323 (Fed. Cir. 2015). As a result of this
1 The Budget Control Act of 2011, Pub. L. No. 112-
25, §§ 101–103, 125 Stat. 240, 241–46, and the American
Taxpayer Relief Act of 2012, Pub. L. No. 112-240, § 901,
126 Stat. 2313, 2370, made amendments to the Balanced
Budget and Emergency Deficit Control Act of 1985, Pub.
L. No. 99-177, 99 Stat. 1038, which is codified in pertinent
part at 2 U.S.C. §§ 901 et seq. The amendments estab-
lished spending limits for agencies of the federal govern-
ment and required automatic “sequestration” under
certain statutory conditions. See generally 2 U.S.C.
§§ 901–03. The American Taxpayer Relief Act required
the President to issue a sequestration order on March 1,
2013, in the middle of Fiscal Year 2013. 126 Stat. at
2370. On that date, President Obama issued a sequestra-
tion order requiring reductions in spending from most
federal budget accounts for Fiscal Year 2013. Sequestra-
tion Order, 78 Fed. Reg. 14,633 (Mar. 1, 2013).
SNYDER v. NAVY 3
legislation, the 2013 budget of the Department of Defense
(DOD) was cut by $37 billion approximately halfway
through Fiscal Year 2013. DOD took a number of steps to
address the dramatic budgetary shortfall for the fiscal
year, including reprogramming funds, reducing facility
maintenance, and eliminating some military training
exercises.
On May 14, 2013, the Secretary of Defense (SECDEF)
issued a memorandum directing DOD managers to pre-
pare to furlough 2 most DOD civilian employees for up to
eleven workdays in fiscal year 2013. As explained in the
SECDEF memorandum, sequestration reduced DOD
operation and maintenance (O&M) accounts that pay
many civilian DOD employees, and although DOD consid-
ered and implemented various actions to reduce the
budgetary shortfall, a shortfall nevertheless remained
which would be addressed through furloughs of civilian
employees. The memorandum provided that “[f]urloughs
will be imposed in every military department as well as
almost every agency and in our working capital funds.”
J.A. 183. In an attachment to the memorandum, the
SECDEF provided a list of approved furlough exceptions,
which included employees deployed to a combat zone,
those whose jobs are necessary to protect safety of life and
property, Navy Shipyard employees, National Intelligence
Program employees, Foreign Military Sales employees,
political appointees, non-appropriated fund instrumental-
ity (NAF) employees, foreign national employees, and
various types of employees not paid directly by DOD-
Military accounts.
2 “‘[F]urlough’ means the placing of an employee in
a temporary status without duties and pay because of lack
of work or funds or other nondisciplinary reasons.” 5
U.S.C. § 7511(a)(5).
4 SNYDER v. NAVY
Subsequently, on June 21, 2013, a bipartisan group of
thirty-one members of Congress sent a letter to the Secre-
tary of Defense expressing concern about the determina-
tion that civilian workers at entities funded through
Defense working capital funds (WCFs) would also be
subject to furlough. WCFs are created and controlled by
the Office of the SECDEF. 10 U.S.C. § 2208(a), (b), (e).
They function “entirely from the fees charged for the
services [provided] consistent with [its] statutory authori-
ty.” Einboden, 802 F.3d at 1323 (citing U.S. Gov’t Ac-
countability Office, GAO–05–734SP, A Glossary of Terms
Used in the Federal Budget Process 101 (2005)). After
receiving initial working capital through appropriation,
WCF entities are self-supporting and function from the
fees charged for the services they provide to their custom-
ers. NFFE, 810 F.3d at 1274. The primary customers of
WCF entities are other DOD entities that transfer their
own congressionally-appropriated funds to make “pur-
chases” from WCFs. Id. Robert Hale, Under Secretary of
Defense (Comptroller), on behalf of the SECDEF, re-
sponded to the congressional inquiry regarding WCFs in a
July 2013 statement to Congress, explaining that “fur-
loughs of all DOD civilians will save about $2 billion in
fiscal year 2013, including more than $500 million associ-
ated with reduced personnel costs in working capital fund
activities. These working capital fund personnel savings
provide us the flexibility to adjust maintenance funding
downward to meet higher-priority needs.” J.A. 85–86.
Thus, in accordance with the SECDEF directive, imple-
mentation of the furloughs generally proceeded across
DOD, including WCF entities.
II.
Ms. Snyder was a civilian mechanical engineer at the
Naval Surface Warfare Center, Dahlgren Division
(Dahlgren) at the time of the sequestration. Dahlgren is a
Navy WCF entity. See Einboden, 802 F.3d at 1323. On
May 28, 2013, Ms. Snyder—as well as numerous other
SNYDER v. NAVY 5
Dahlgren employees—received a Notice of Proposed
Furlough indicating that the Navy planned to furlough
her for a period of up to eleven workdays days because of
“the extraordinary and serious budgetary challenges[,] . . .
the most serious of which is the sequester.” J.A. 834.
At that time, Ms. Snyder worked full-time on a Lock-
heed Martin Advanced Shipboard Weapons Control
(ASWC) project to modify existing weapons control soft-
ware. The ASWC project was governed by a Cooperative
Research and Development Agreement (CRADA) between
Dahlgren and Lockheed Martin, signed in September
2012. Pursuant to the ASWC CRADA, both parties would
provide expertise and engineering support. Lockheed
Martin was solely responsible for funding the project,
providing $2.6 million in 2012, paid to the Treasurer of
the United States. According to the CRADA’s terms, any
unused funds remaining at the completion of the project
in 2015 were to be remitted to Lockheed Martin following
Dahlgren’s submission of a final fiscal report.
On May 30, 2013, Lockheed Martin sent a letter to the
Navy requesting that the Dahlgren employees supporting
the ASWC CRADA—including Ms. Snyder—be exempt
from furlough. The letter argued that the project was
fully funded by Lockheed Martin Independent and Re-
search Development (IRAD) funds and not Federal appro-
priations, and therefore, it “should be viewed as third-
party funding like Foreign Military Sales (FMS) funding
[one of the express exceptions identified in the SECDEF
memorandum].” J.A. 933. Ms. Snyder filed a written
reply on June 10, 2013, to the proposed furlough, echoing
Lockheed Martin’s view that her work for the Lockheed
Martin-funded ASWC CRADA should be exempted from
furlough like the listed SECDEF exceptions. In a letter
6 SNYDER v. NAVY
dated June 24, 2013, the Navy deciding official responded
to Ms. Snyder, denying her request. 3
III.
Ms. Snyder petitioned the Board for review, asserting
that the Navy had improperly furloughed her. Her case
was consolidated with thirty-nine other furloughed
Dahlgren employees. An administrative judge (AJ)
conducted a consolidated hearing on July 8, 2015.
For her part, Ms. Snyder argued that, because she
was working full-time in support of the Lockheed Martin-
funded ASWC CRADA, her situation was akin to those
exceptions identified by the SECDEF. In support of her
argument, Ms. Snyder requested the AJ take official
notice of the Federal Technology Transfer Act of 1986,
codified at 15 U.S.C. §§ 3701 et seq., as well as DOD
Instruction 5535.8, “DOD Technology Transfer (T2)
Program,” May 14, 1999, which prescribes procedures for
implementing technology transfer programs, including
CRADAs. She argued that these provisions collectively
(i) prohibit the federal government from providing funds
to a non-government CRADA participant; and (ii) obligate
the government to maintain separate and distinct ac-
counts to track CRADA funds. Thus, she argued that she
was not paid out of government-appropriated funds, like
typical WCF employees, and her work should have been
exempted from the furlough because her furlough could
not have assisted in reducing DOD’s budgetary shortfall.
3 Because of other cost-cutting measures and repro-
gramming requests approved by Congress, DOD was able
to close the budget gaps more easily than it had initially
anticipated. On August 6, 2013, the SECDEF announced
that the furlough of civilian defense employees would be
reduced from eleven to six days.
SNYDER v. NAVY 7
Ms. Snyder also argued that the Navy improperly
provided some, but not all, furloughed employees assigned
to work on the ASWC CRADA with an opportunity to
earn overtime pay to mitigate the economic impact of the
furlough. In support, she offered the testimony of Mr.
Larry Fontenot, a fellow ASWC CRADA employee. Mr.
Fontenot testified that he and others working on the
project were permitted to work overtime during the
furlough time period and that he believed this was a
result of a compromise struck by management to make up
for the furlough days. This “compromise,” Ms. Snyder
argued, demonstrates that the Navy did not apply the
furlough in a fair and even manner.
For its part, the Navy explained that all Dahlgren
employee salaries—regardless of funding source—are
paid directly from the WCF. Ms. Kathy Clark, Deputy
Comptroller for Dahlgren, testified that when a WCF
employee like Ms. Snyder performs work on a job request-
ed by a customer, the customer does not directly pay the
employee’s salary; rather, the WCF employee’s salary is
paid from the WCF. The Navy argued that by not paying
Ms. Snyder’s salary for six days, it realized a savings in
the WCF at the time of the furlough, just as with every
other employee paid from the WCF. Thus, the Navy
explained, even if it would be required to pay back Lock-
heed Martin certain monies in a later, subsequent fiscal
year—upon the completion of the project—the Navy still
realized an immediate benefit at that specific point in
time in 2013 in responding to the sequestration.
IV.
On September 11, 2015, the AJ issued an Initial Deci-
sion in the consolidated case and found Snyder’s furlough
was a reasonable management solution to the shortage of
funds caused by sequestration and therefore promoted the
efficiency of the service. The AJ acknowledged that Ms.
Snyder cited “numerous agency regulations concerning
8 SNYDER v. NAVY
the proper administration of CRADA funds,” J.A. 23, but
credited the testimony of the Navy witnesses that all
Dahlgren employees, including CRADA employees, are
paid from the WCF. Thus, in that relevant sense, the AJ
concluded, “she is no different from other employees who
were furloughed.” Id.
The AJ also concluded that there was no evidence to
support Ms. Snyder’s claim that the furlough was unfairly
applied. The AJ found that Mr. Fontenot’s testimony
established only that he “assumed” the Navy paid him
and others the requested overtime to mitigate the effects
of the furlough. J.A. 24. The AJ also found there was no
evidence that Ms. Snyder even requested overtime pay,
further undercutting her claim that similarly situated
employees were treated differently. Id.
Ms. Snyder filed a petition for review with the Board.
On March 18, 2016, the Board issued a Split Vote Order,
indicating that the two members of the Board could not
agree upon a disposition. As a result, the AJ’s Initial
Decision became the Final Decision of the Board. 5 C.F.R.
§ 1200.3(b). Ms. Snyder now seeks review of the Board’s
Final Decision. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
I.
Our authority to review a decision of the Board is lim-
ited by statute. We may set aside the Board’s decision
only if it is “(1) arbitrary, capricious, an abuse of discre-
tion, 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); Whitmore v. Dep’t of Labor,
680 F.3d 1353, 1366 (Fed. Cir. 2012). Substantial evi-
dence is “such relevant evidence as a reasonable mind
SNYDER v. NAVY 9
might accept as adequate to support a conclusion.” Berlin
v. Dep’t of Labor, 772 F.3d 890, 894 (Fed. Cir. 2014).
An agency may furlough an employee for lack of work
or funds or other non-disciplinary reasons. 5 U.S.C.
§§ 7511(a)(5), 7512(5). Because furloughs of thirty days or
less are deemed adverse employment actions, the agency
must demonstrate that the furlough “will promote the
efficiency of the service.” NFFE, 810 F.3d at 1277 (quot-
ing 35 U.S.C. § 7513(a)). This means that the agency’s
decision must “be a reasonable management solution to
the financial restrictions placed on the agency” and that
the agency must “determine which employees to furlough
in a fair and even manner.” Einboden, 802 F.3d at 1325;
5 U.S.C. § 7513(a); 5 C.F.R. § 1201.56(a)(1)(ii) (2015).
II.
Ms. Snyder first takes aim at the Board’s “reasonable
management solution” analysis.
A.
She contends, as an initial matter, that the AJ’s deci-
sion failed to discuss the controlling law and facts and,
therefore, did not constitute a reasoned opinion providing
an adequate basis for review under the Board’s regula-
tions. 5 C.F.R. § 1201.111(b)(1); Spithaler v. Office of
Pers. Mgmt., 2 MSPB 2, 1 M.S.P.R. 587, 588–89 (1980).
Ms. Snyder argues that the Initial Decision “devoted a
negligible 359 words concerning the facts and the law
pertaining to the CRADA.” Brief of Petitioner at 27.
Moreover, she asserts the decision also “fails to summa-
rize [Ms. Snyder’s] Post-Hearing Brief that thoroughly
discusses the Federal Technology Transfer Act.” Id. at 28.
We reject Ms. Snyder’s argument regarding the
sufficiency of the AJ’s analysis for multiple reasons. In
Spithaler, on which Ms. Snyder relies, the Board held
that a three-sentence initial decision, which simply an-
nounced the administrative judge’s disposition of the case
10 SNYDER v. NAVY
without any analysis, failed to satisfy the regulatory
requirement of 5 C.F.R. § 1201.111(b)(1). 1 M.S.P.R. at
588–89. The Initial Decision’s analysis in this case was
qualitatively more meaningful compared to the com-
plained-of analysis in Spithaler. Within the 26-page
opinion, the AJ dedicated multiple pages to addressing
Ms. Snyder’s specific claims and its reasoning for uphold-
ing Ms. Snyder’s furlough.
We also reject Ms. Snyder’s argument that the AJ was
required to summarize all of the arguments raised in her
briefing. The mere fact that the AJ did not recount these
arguments as thoroughly as Ms. Snyder would like does
not mean that the AJ did not sufficiently consider them.
See, e.g., Synopsys, Inc. v. Mentor Graphics Corp., 814
F.3d 1309, 1322 (Fed. Cir. 2016) (noting that an agency is
“not require[d] . . . to address every argument raised by a
party or explain every possible reason supporting its
conclusion”); Gonzales v. West, 218 F.3d 1378, 1381 (Fed.
Cir. 2000) (“[A]bsent specific evidence indicating other-
wise, all evidence contained in the record . . . must be
presumed to have been reviewed by [the agency].”); Med-
tronic, Inc. v. Daig Corp., 789 F.2d 903, 906 (Fed. Cir.
1986) (“We presume that a fact finder reviews all the
evidence presented unless [the fact finder] explicitly
expresses otherwise.”).
Here, the AJ identified the principal legal issue,
summarized the facts material to resolving that issue,
and made clear the reasoning that led the AJ to reject Ms.
Snyder’s claim. The Initial Decision recognized that the
funding source for the CRADA originated from a non-
government entity, i.e., Lockheed Martin. It also
acknowledged the regulations concerning the proper
administration of CRADA funds. The AJ, however, found
these considerations were not dispositive, because the
Navy’s unrebutted evidence showed that Ms. Snyder’s
salary, like all other WCF employees’ salaries, was paid
directly from the WCF, regardless of funding source for
SNYDER v. NAVY 11
the project to which she was presently assigned. The AJ
therefore reasoned that, for reasons of responding to the
sequestration, Ms. Snyder, as a WCF employee, was no
different from other WCF employees who were fur-
loughed. We conclude that the AJ’s analysis sufficiently
articulates its rationale and the factual underpinnings
supporting its decision to affirm Ms. Snyder’s furlough.
B.
Ms. Snyder next argues that the decision to affirm her
furlough is nevertheless unsupported by substantial
evidence. According to Ms. Snyder, the above-cited statu-
tory and regulatory authority and the plain terms of the
CRADA establish that the funds used to pay her salary
did not involve an appropriation of the United States, but
rather, they originated from non-Federal funds that
cannot be spent for a non-CRADA purpose. Further, Ms.
Snyder argues the Navy was required to return to Lock-
heed Martin any excess funds at the end of the CRADA
project, which underscores that the funds belong to Lock-
heed Martin, not the government. Ms. Snyder therefore
contends that, just as with the already recognized
SECDEF exceptions, neither Dahlgren nor the Navy nor
DOD could save any money by furloughing her.
Even accepting that the ASWC CRADA was funded
solely with non-appropriations monies, we disagree that
the funding source is dispositive of the question on ap-
peal. Rather, we agree with the AJ that the fact Ms.
Snyder was a WCF employee directly paid from the WCF,
bears considerable weight on the reasonableness of the
agency’s furlough decision. 4
4 Ms. Snyder also takes issue with the reliability of
Ms. Clark’s testimony that all Dahlgren employees are
paid directly from the WCF, regardless of funding source.
Credibility determinations made by the Board are “virtu-
12 SNYDER v. NAVY
Agencies have broad discretion to take actions to con-
trol spending, preserve flexibility, and adjust priorities in
response to sequestration. “We give wide berth to agency
decisions as to what type of adverse action is necessary to
‘promote the efficiency of the service,’ provided that the
agency’s decision bears some nexus to the reason for the
adverse action.” Einboden, 802 F.3d at 1325–26 (quoting
5 U.S.C. § 7513(a)). We have also previously explained
that, when faced with sequestration, it is reasonable for
an agency “to consider its budget situation holistically,”
rather than isolating the situation of each individual
organization or component. Id. at 1324–25; NFFE, 810
F.3d at 1282.
In both Einboden and NFFE, this court upheld the
decision to furlough WCF employees who, like Ms.
Snyder, worked at WCF entities and were furloughed in
accordance with the SECDEF’s direction to furlough WCF
employees. In both cases, endorsing the holistic view of
budget management, we explained that the decision to
furlough employees paid by a WCF was a reasonable
management solution to the budget shortfall because,
among other reasons, preserving money in the WCFs
generally provided DOD with the flexibility to meet
higher priority needs during that critical time period. See
Einboden, 802 F.3d at 1325; NFFE, 810 F.3d at 1282.
Here too there is a sufficient nexus between the deci-
sion to furlough Ms. Snyder and the sequestration. DOD
was faced with a sudden, dramatic, agency-wide funding
ally unreviewable.” Hambsch v. Dep’t of Treasury, 796
F.2d 430, 436 (Fed. Cir. 1986). Because Ms. Snyder’s
proffered evidence regarding the treatment of CRADA
funds does not directly contradict Ms. Clark’s testimony
that all Dahlgren employees are paid from the WCF, the
AJ’s decision to credit Ms. Clark’s testimony is supported
by substantial evidence.
SNYDER v. NAVY 13
shortfall. As part of the measures to adapt to this short-
fall, DOD implemented agency-wide furloughs of civilian
employees with only limited exceptions, which DOD
estimated would save it about $2 billion. The Navy’s
decision to furlough WCF employees was a reasonable
management solution consistent with the SECDEF’s
direction. Even though Ms. Snyder was working at the
time of her furlough on a project based on funds that
originated from a non-government entity, she, like the
other employees at Dahlgren, was a WCF employee and,
critically, her salary was paid from the WCF, just like the
other furloughed Dahlgren employees. Not paying Ms.
Snyder’s salary on those six days in 2013 thus preserved
money in the WCF, which in turn provided DOD with
added flexibility to manage its budget shortfall that year,
just as with the furlough of every other WCF employee.
We find unpersuasive Ms. Snyder’s argument that the
government would not realize any savings from her
furlough. While it is true that, at the completion of the
CRADA project in 2015, any unused monies would return
to Lockheed Martin, not the Navy, that does not change
our conclusion. “We . . . must base our review of the
agency’s decision on the circumstances it faced when the
furlough decisions were made, and not on events that did
or did not occur at a later date.” NFFE, 810 F.3d at 1281.
During the relevant time period in May 2013, it was
reasonable for the Navy to determine that savings from
furloughing all WCF employees—including those current-
ly working on CRADA projects—would be part of an
overall effort to reduce expenditures in the face of de-
creased funding resulting from budget reductions during
that fiscal year. And even if the savings realized by the
WCF were only temporary (because the Navy could poten-
tially have to return unused monies to Lockheed two
years later in 2015), the Navy still derived a benefit by
not having to pay Ms. Snyder’s salary during that critical
time period.
14 SNYDER v. NAVY
Finally, we reject Ms. Snyder’s additional argument,
raised for the first time in her reply brief, that her situa-
tion fits within the definition of exception (i) from the
SECDEF memorandum, pertaining to funding sources
outside of the DOD-military budget. This argument was
waived. It is well-established that an agency is not re-
quired to respond to arguments that were never made to
the agency. For example, in Department of Transporta-
tion v. Public Citizen, 541 U.S. 752 (2004), the Supreme
Court declined to consider a challenge to an agency action
on the basis that the agency “fail[ed] properly to consider
possible alternatives,” where the challengers “did not
raise these particular objections” to the agency. Id. at
764–65 (“Respondents have therefore forfeited any objec-
tion to the [action] on the ground that it failed adequately
to discuss potential alternatives to the proposed action.”).
Ms. Snyder argued below only that her situation was
similar in kind to those SECDEF exceptions with funding
sources from outside of the government, including excep-
tions (e) (Foreign Military Sales) and (g) (nonappropriated
funds), because furloughing her would similarly not assist
DOD in reducing its budgetary shortfall. For the reasons
explained above, the AJ correctly rejected that argument
and concluded it was reasonable to treat Ms. Snyder like
the other WCF employees, and doing so would in fact help
DOD respond to its budget shortfall.
We find the argument lacking in any event. SECDEF
exception (i) pertains only to “employees who are not paid
directly by accounts included in the Department of De-
fense-Military (subfunction 051) budget.” J.A. 186. The
evidence presented below established that Ms. Snyder, as
a WCF employee, was paid directly from the WCF. And
Ms. Snyder presents no evidence to support the conclusion
that the Navy WCF is outside of the DOD (subfunction
051) budget. Nor could she, as the various DOD WCFs
were expressly targeted for furloughs by the very same
SECDEF memorandum that established exception (i).
SNYDER v. NAVY 15
Thus, the AJ did not err in failing to find Ms. Snyder
should have been excepted from the furlough pursuant to
SECDEF exception (i).
We therefore conclude that substantial evidence sup-
ports the AJ’s decision that the furlough of Ms. Snyder
was a reasonable management solution to the financial
restrictions placed on the Navy due to sequestration and
thus promoted the efficiency of the service.
III.
Ms. Snyder argues that the Board also misevaluated
the evidence demonstrating that the Navy failed to apply
the furlough in a fair and even manner. According to Ms.
Snyder, her testimony and Mr. Fontenot’s testimony that
some ASWC CRADA employees received overtime was
both unrebutted and dispositive. She argues that the AJ
found against her only because the Navy was permitted to
introduce additional evidence on this score after the
record was closed, in violation of Board regulation 5
C.F.R. § 1201.58(c) (2015). 5
As an initial matter, we see no error in the AJ’s find-
ing that Mr. Fontenot’s testimony amounted to nothing
more than speculation that the approval of specific over-
time requests was somehow related to employee fur-
5 That regulation provides, in pertinent part:
(c) Once the record closes, additional evidence or
argument will ordinarily not be accepted unless:
(1) The party submitting it shows that the
evidence or argument was not readily
available before the record closed; or
(2) It is in rebuttal to new evidence or ar-
gument submitted by the other party just
before the record closed.
16 SNYDER v. NAVY
loughs. Moreover, Ms. Snyder presented no evidence that
any of the furloughed ASWC CRADA employees had
overtime requests denied and she admitted to never
actually requesting overtime during the relevant time
period. Thus, as the AJ recognized, Ms. Snyder’s prof-
fered testimony that those ASWC CRADA employees
received overtime when requested does not, without more,
establish that similarly treated employees were treated
differently.
We also ascertain no reversible error in the Board’s
admission of the Navy’s rebuttal evidence. “Procedural
matters relative to discovery and evidentiary issues fall
within the sound discretion of the board and its officials.”
Curtin v. Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed.
Cir. 1988). We “will not overturn the board on such
matters unless an abuse of discretion is clear and is
harmful.” Id. Ms. Snyder does not attempt to explain
how the Board’s admission of this evidence over her
objection resulted in a clear and harmful abuse of discre-
tion. And, in any event, the AJ explained “even if the
[Navy] had not provided this evidence, my finding would
be no different due to the testimony provided by [Ms.
Snyder] and Mr. Fontenot at the hearing.” J.A. 24 n.9.
Thus, even if the AJ erred in admitting the evidence, any
such error would be harmless. Substantial evidence
supports the AJ’s dismissal of Ms. Snyder’s claim without
regard to the Navy’s rebuttal evidence. Thus, we conclude
the Board did not commit reversible error in affirming
Ms. Snyder’s furlough.
CONCLUSION
For the foregoing reasons, we affirm the judgment of
the Board upholding Ms. Snyder’s furlough.
AFFIRMED
COSTS
No costs.