Frank A. Putzu v. Department of the Navy ( 2015 )


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  •                            UNITED STATES OF AMERICA
    MERIT SYSTEMS PROTECTION BOARD
    FRANK A. PUTZU, 1                               DOCKET NUMBER
    Appellant,                        DC-0752-13-5887-I-1
    v.
    DEPARTMENT OF THE NAVY,                         DATE: September 2, 2015
    Agency.
    THIS FINAL ORDER IS NONPRECEDENTIAL 2
    Frank A. Putzu, Alexandria, Virginia, pro se.
    Linda L. Tiller, John D. Norquist and Jeffrey A. Epstein, Esquire,
    Washington, D.C., 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 initial decision, which
    affirmed the agency’s furlough action. Generally, we grant petitions such as this
    one only when: the initial decision contains erroneous findings of material fact;
    1
    Pursuant to 
    5 C.F.R. § 1201.36
    (a), this appeal was part of a consolidation, NAVSEA v.
    Department of the Navy, MSPB Docket No. DC-0752-14-0646-I-1.
    2
    A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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 initial decision is based on an erroneous interpretation of statute or regulation
    or the erroneous application of the law to the facts of the case; the 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, and based on the following points and authorities, 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, which provides additional support for
    the administrative judge’s finding that the appellant did not qualify for an
    exception to the furlough, and clarifies that the burden is on the agency to prove
    “cause” for the action, we AFFIRM the initial decision.
    ¶2         After a hearing, the administrative judge held that the agency proved that it
    had to make significant spending cuts because of sequestration 3 and that the
    furlough helped the agency avoid a deficit. NAVSEA v. Department of the Navy,
    MSPB Docket No. DC-0752-14-0646-I-1, Consolidation Appeal File (CAF),
    Tab 19, Initial Decision (ID) at 15-16. The administrative judge also found that
    the furlough was a reasonable management solution to the financial issues facing
    the agency and promoted the efficiency of the service. ID at 16. In this regard,
    the administrative judge rejected the arguments that the agency could have taken
    other measures to avoid the furlough, the budget cuts did not affect the ability of
    the Department of the Navy (Navy) to protect national security, and funds could
    not be reprogrammed, finding that these arguments were based on spending
    3
    The term “sequestration” refers to the cancellation of budgetary resources provided by
    discretionary appropriations or direct spending law. See Salo v. Department of Defense,
    
    122 M.S.P.R. 417
    , ¶ 2 (2015).
    3
    matters within the agency’s sound discretion. 
    Id.
     The administrative judge also
    held that the agency imposed the furloughs uniformly. 
    Id.
    ¶3        The administrative judge held that, although the appellant asserted that he
    should have been exempt from the furlough under an exemption for “Shipyard
    Workers, Nuclear and Naval Reactors Staff,” see CAF, Tab 2; see also
    Department of the Navy Administrative Record for FY 2013 Furlough Appeals,
    Tab 12 at 105, 108-09, available at http://www.mspb.gov/furloughappeals/navy
    2013.htm, because he serves as Counsel for the Office of Naval Reactors and was
    therefore a member of the Naval Reactors staff, the appellant was actually an
    employee of the Naval Sea Systems Command’s (NAVSEA’s) Office of General
    Counsel (OGC), not the Office of Naval Reactors, which was one of his clients,
    ID at 18-19. The administrative judge further concluded that the appellants did
    not prove harmful error or a violation of their due process rights. ID at 19-20.
    ¶4        The appellant contends on review that the agency initially identified his
    position as having met the criteria for an exception to the furlough, testimony and
    his position description show that he qualified for the exception as “Naval
    Reactors Staff,” the term “staff” does not only mean “employee,” and there is
    nothing improper or unusual for a Navy employee to be on the staff of different
    Navy organizations. Petition for Review (PFR) File, Tab 1 at 7, 10-11, 17. The
    appellant asserts that “he is an employee of the Department of the Navy, a
    member of OGC, paid from funds apportioned to NAVSEA (the same as Navy
    employees assigned to NAVSEA 08), and works on the staff of Naval Reactors.”
    
    Id. at 17
    . The agency asserts that the evidence shows that the appellant was not
    an employee of the Office of Naval Reactors. PFR File, Tab 3 at 8.
    ¶5        An agency may furlough an employee for 30 days or less “only for such
    cause as will promote the efficiency of the service.”        
    5 U.S.C. §§ 7512
    (5),
    7513(a). 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.            Dye v. Department of the
    4
    Army, 
    121 M.S.P.R. 142
    , ¶ 9 (2014). The agency has the burden of proof on this
    issue.     
    Id., ¶¶ 9-10
    ; see In re Tinker AFSC/DP v. Department of the Air
    Force, 
    121 M.S.P.R. 385
    , ¶¶ 14-15 (2014).           Here, the administrative judge
    correctly found that the agency met its burden of proof by preponderant
    evidence. 4
    ¶6            In a May 14, 2013 memorandum, the Secretary of Defense set forth a list of
    Department of Defense (DOD) Furlough Exceptions that included, for the Navy,
    1,657 individuals identified only as “Shipyard Workers, Nuclear and Naval
    Reactors Staff.” Department of the Navy Administrative Record for FY 2013
    Furlough Appeals, Tab 12 at 105, 108-09.
    ¶7            The appellant’s position description indicates that his position of “Counsel,
    Naval Reactors,” exists within the Navy’s OGC (first subdivision), Counsel,
    NAVSEA (second subdivision), Office of Counsel (third subdivision).            Initial
    Appeal File (IAF), Tab 2 at 12. The position description further notes that the
    position is “within the Office of Counsel, Naval Sea Systems Command,” and that
    the NAVSEA Office of Counsel is responsible for providing legal advice,
    services and representation, and giving necessary legal approvals, opinions, and
    interpretations to NAVSEA and its field activities, affiliated Program Executive
    Officers, Direct Reporting Program Managers, and the Director, Naval Reactors.
    
    Id. at 13
    .     In addition, the position description provides that the appellant’s
    position “is a Section Head within the NAVSEA Office of Counsel, and the
    primary legal subject matter expert and a senior advisor to the Director, Naval
    Reactors.” 
    Id. at 14
    . The appellant testified that his performance appraisals, at
    least in part, as well as any disciplinary actions that would be taken against him,
    were to be acted upon by individuals within OGC, not Naval Reactors. Hearing
    Transcript (HT) at 111-13. He also testified that he considered Naval Reactors to
    4
    Preponderant evidence is the degree of relevant evidence that a reasonable person,
    considering the record as a whole, would accept as sufficient to find that a contested
    fact is more likely to be true than untrue. 
    5 C.F.R. § 1201.56
    (c)(2).
    5
    be his client in his capacity as an attorney. HT at 113-14. The fact that the
    appellant’s position officially exists within OGC, not within Naval Reactors, and
    provides legal advice, services, and representation to Naval Reactors, as well as
    the involvement of OGC in matters affecting the appellant’s employment, all
    support the administrative judge’s determination that the appellant’s position falls
    within the staff of OGC, rather than “Naval Reactors Staff.”
    ¶8         In addition, the deciding official, who was the Executive Director of
    NAVSEA, testified in a separate Board appeal that he interpreted the phrase
    “Naval Reactors Staff” in the May 14, 2013 Secretary of Defense memorandum as
    referring to the “C08 Headquarters department, of which I was not the deciding
    official for those employees,” which referred to Naval Reactors. IAF, Tab 10
    at 9, 12-13 (transcript pages 7-8, 21-22). He testified in the instant appeal that an
    employee is either “bureaucratically coded” in Naval Reactors or not so coded.
    HT at 53. He also testified that the appellant’s position was “a NAVSEA position
    with counsel being assigned by NAVSEA to” Naval Reactors, and that the
    appellant’s position was an “OOL code,” while employees in Naval Reactors had
    an “08 code.” HT at 62-63. OOL is NAVSEA’s legal department, which is not a
    part of 08, which in turn refers to Naval Nuclear Propulsion. HT at 78-79. The
    deciding official testified that, because the appellant was not a NAVSEA 08
    employee, the Deputy Director, Naval Reactors, did not have the authority to
    advocate for an exemption for the appellant from the furlough. HT at 188-90.
    ¶9         The Deputy Director, Naval Reactors, testified that, when Naval Reactors
    had initially recommended that the appellant be excepted from the furlough, it
    was arguing for NAVSEA “on their behalf,” and that he believed he had the
    authority to take that position on behalf of NAVSEA.           IAF, Tab 15 at 13
    (transcript page 31). He also indicated, however, that there was no guidance
    provided to him specifically indicating that he could seek a waiver or attempt to
    seek a waiver for the appellant. 
    Id. at 28
     (transcript page 91).
    6
    ¶10        Further, in a June 19, 2013 email from NAVSEA to the Deputy Director,
    Naval Reactors, in response to his request for an opinion regarding the term
    “Naval Reactors Staff,” NAVSEA indicated that the term referred to the
    106 positions at headquarters that were identified in an attached exemption
    request for Naval Reactor employees. IAF, Tab 15 at 50. The email provides:
    The Furlough exemption request was submitted by NR [Naval
    Reactors] on 6 March 2013 and endorsed by the VCNO [Vice Chief,
    Naval Operations] on 21 March. The request was for 1,657 NR
    employees; 1,551 at the four shipyards, and 106 at NR headquarters.
    The request regarding the HQ employees consisted of 103 Nuclear
    Engineers, 1 Logistics Management Specialist, 1 Health Physicist,
    and 1 Operations Manager. On 14 May 2013, SECDEF issued a
    memorandum directing DoD activities to prepare for furlough. The
    memorandum contains an attachment specifying the final
    dispositions on furlough exemptions. The only language in the
    attachment relative to this issue is the exemption of 1,657 “Shipyard
    Workers, Nuclear and Naval Reactors Staff.” Presumably these are
    the same 1,657 employees listed in the Navy’s March furlough
    exemption request. Shipyard Workers refers to the 1,551 NR
    Shipyard employees; Naval Reactors Staff refers to the 106
    exempted employees at NR HQ.
    I conferred with . . . [the] Assistant General Counsel for M&RA
    [Manpower & Reserve Affairs]. He concurs that Naval Reactor Staff
    refers to the 106 employees identified in the exemption request.
    
    Id.
     All of this evidence further supports the administrative judge’s finding that
    the appellant did not fall within the exception for “Naval Reactors Staff.”
    ¶11        Even assuming, however, that the Counsel, Naval Reactors position was a
    part of “Naval Reactors Staff” for purposes of the furlough exception, the record
    reflects that Naval Reactors determined, before the issuance of the Secretary of
    Defense’s May 14, 2013 memorandum and the start of the furloughs, that the
    appellant’s position would not be included among the 106 exceptions from Naval
    Reactors headquarters.    As suggested by the email quoted above, before the
    issuance of the May 14, 2013 memorandum from the Secretary of Defense setting
    forth the exceptions from the furlough, Naval Reactors requested on March 21,
    2013, from the Office of the Secretary of Defense and had approved by DOD only
    7
    106 exceptions from the furlough for Naval Reactors Headquarters employees,
    including 102 Nuclear Engineers, 1 Information Technology Specialist, 1 Health
    Physicist, 1 Logistics Management Specialist, and 1 Operations Manager; this did
    not include the position of Counsel, Naval Reactors, which was eliminated from
    the request because the position was not critical to responding to a nuclear
    emergency. CAF, Tab 8 at 20-31, 40-46. The Deputy Director, Naval Reactors,
    testified in a deposition that, after Naval Reactors made a recommendation for
    exemptions from the furlough that included the appellant, “we got some feedback
    from someone in leadership that came back and requested that the number be
    reduced [from 121] again [to] those folks only responsible for life and safety
    requirements and work on a recallable basis.” IAF, Tab 15 at 13, 17 (transcript
    pages 31, 46-47). He testified that the “waiver exception folks never worked to
    our criteria,” but instead “had their own set of criteria which was very specific to
    life and safety issues,” and that “I don’t think anyone within the secretariat ever
    agreed with our three criteria as being something on which to base the waiver.”
    
    Id. at 17
     (transcript pages 47, 49). He further testified that he, along with several
    other individuals, edited the list of 121 employees down to 106, eliminating the
    appellant’s position based on guidance received indicating that Naval Reactors
    should assume it could recall individuals from the furlough if necessary and
    except from the furlough only those positions involved in “immediate health or
    life and safety,” which did not include the appellant’s position.           
    Id. at 27
    (transcript pages 87-88). He further testified that no one specifically told him to
    take the appellant off the list of exempt employees, but by position, “it didn’t fit
    in the last set of criteria we had handed to us.” 
    Id. at 29
     (transcript page 97).
    ¶12         Based on the initial decision and the analysis set forth above, we find that
    the administrative judge correctly determined that the agency proved by
    preponderant evidence that the appellant was subject to, and not excepted from,
    the furlough. See Dye, 
    121 M.S.P.R. 142
    , ¶ 9.
    8
    ¶13         The appellant also asserts that the administrative judge improperly denied
    his motion to compel the production of evidence, including his request to take the
    depositions of the Vice Chief, Naval Operations, and the Assistant Secretary of
    the Navy for Manpower and Reserve Affairs, that he claims would have shown
    why the agency determined that he did not meet the “Naval Reactors Staff”
    exception, and improperly prohibited him from submitting evidence from the
    DOD official who handled that exception, as well as evidence showing that a
    March 21, 2013 memorandum setting forth the exception criteria represented “the
    binding position of the agency.” PFR File, Tab 1 at 11-14.
    ¶14         An administrative judge has wide discretion to exclude evidence and
    witnesses when it has not been shown that such evidence and testimony would be
    relevant,   material,   and   nonrepetitious.    Fox    v.   Department   of   the
    Army, 
    120 M.S.P.R. 529
    , ¶ 42 (2014); see 
    5 C.F.R. § 1201.41
    (b)(10). The Board
    will not reverse an administrative judge’s rulings on discovery matters, including
    a motion to compel, absent an abuse of discretion. Fox, 
    120 M.S.P.R. 529
    , ¶ 42.
    In an order denying the appellant’s motion to compel discovery, the
    administrative judge found that “whether the appellant should have been included
    on a list of excepted Naval Reactors employees is not relevant to this proceeding
    because the appellant was not a Naval Reactors employee.” IAF, Tab 13 at 2. As
    set forth above, the appellant has shown no error in that determination. Thus, the
    appellant has shown no abuse of discretion in the denial of discovery.
    ¶15         The appellant contends that the deciding official failed to consider
    documentation he attached to his reply to the proposal notice suggesting that he
    met the exception to the furlough for “Naval Reactors Staff,” and that the
    administrative judge improperly placed the burden of proving that there was
    “cause” for the action on him, rather than on the agency.        PFR File, Tab 1
    at 19-23. Given our finding that the appellant did not constitute “Naval Reactors
    Staff,” the deciding official correctly concluded that the documentation in
    question was not relevant to his determination to furlough the appellant. See HT
    9
    at 42-43 (testimony of the deciding official that, when he received a written reply
    that cited documents, “if I thought they were relevant, I would have probably
    asked for them, but where it was very clear or there wasn’t a case to be made –
    really, what I was looking for in the replies was if it fit into one of the categorical
    exceptions. That is really the latitude I had as the deciding official.” “If it was
    relevant to that, I would have asked for it. If it wasn’t, I was going to make a
    final decision and move on.”).       Moreover, the administrative judge did not
    improperly place the burden of proving “cause” on the appellant. Although the
    administrative judge’s analysis of this issue does fall under a subheading that
    references affirmative defenses and includes a discussion of the appellants’
    harmful error and due process claims, the administrative judge cited and applied
    the correct standard in this case, i.e., that the agency bears the burden of proving
    the factual basis for the furlough and that the furlough promoted the efficiency of
    the service. ID at 14-17, 18-19, 21. In any event, to the extent that the initial
    decision may be unclear on this issue, we find, as set forth above, that the agency
    has met its burden of proof in this regard.
    ¶16         Finally, the appellant asserts that the agency provided on appeal to the
    Board documentation in support of its action, such as a document entitled
    “Department of the Navy Administrative Furlough Guidance for Proposing and
    Deciding Officials,” that it did not make available to him when it proposed his
    furlough. PFR File, Tab 1 at 4 n.1, 25-27. An agency’s proposal notice must
    state the specific reasons for the proposed action and inform the employee of his
    or her right to review the material relied on to support the reasons for the action
    given in the notice. 
    5 C.F.R. § 752.404
    (b)(1). Here, the agency’s proposal notice
    informed the appellant that supporting material for the action could be found at a
    specified agency website. IAF, Tab 5 at 19. The appellant has not alleged that
    the deciding official relied upon the above document in taking the furlough
    action. Even assuming, however, that the appellant established a procedural error
    by the agency in this regard, he has not shown that any error likely caused the
    10
    agency to reach a conclusion different from the one it would have reached in the
    absence or cure of the error. See 
    5 C.F.R. § 1201.56
    (c)(3).
    NOTICE TO THE APPELLANT REGARDING
    YOUR FURTHER REVIEW RIGHTS
    The 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 the United States Court of Appeals for the Federal Circuit to review this
    final decision.    You must submit your request to the court at the following
    address:
    United States Court of Appeals
    for the Federal Circuit
    717 Madison Place, N.W.
    Washington, DC 20439
    The court must receive your request for review no later than 60 calendar
    days after the date of this order.          See 
    5 U.S.C. § 7703
    (b)(1)(A) (as rev. eff.
    Dec. 27, 2012). If you choose to file, be very careful to file on time. The court
    has held that normally it does not have the authority to waive this statutory
    deadline and that filings that do not comply with the deadline must be dismissed.
    See Pinat v. Office of Personnel Management, 
    931 F.2d 1544
     (Fed. Cir. 1991).
    If you need further information about your right to appeal this decision to
    court, you should refer to the Federal law that gives you this right. It is found in
    Title 5 of the United States Code, section 7703 (
    5 U.S.C. § 7703
    ) (as rev. eff.
    Dec. 27, 2012). You may read this law as well as other sections of the United
    States     Code,    at   our     website,     http://www.mspb.gov/appeals/uscode.htm.
    Additional         information         is       available      at     the      court’s
    website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
    for Pro Se Petitioners and Appellants,” which is contained within the
    court’s Rules of Practice, and Forms 5, 6, and 11.
    11
    If you are interested in securing pro bono representation for an appeal to the
    United States 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.
    

Document Info

Filed Date: 9/2/2015

Precedential Status: Non-Precedential

Modified Date: 4/17/2021