                      UNITED STATES OF AMERICA
                   MERIT SYSTEMS PROTECTION BOARD


PETER SCHNEIDERBAUER,                            DOCKET NUMBER
             Appellant,                          SF-0752-13-4228-I-1 1

             v.

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



        THIS FINAL ORDER IS NONPRECEDENTIAL 2

      Peter Schneiderbauer, Port Hueneme, California, pro se.

      Matthew D. Dunand, Esquire, and Steven L. Seaton, Esquire, Bremerton,
       Washington, for the agency.


                                       BEFORE

                         Susan Tsui Grundmann, Chairman
                            Mark A. Robbins, Member




1
  Pursuant to 5 C.F.R. § 1201.36(a)(2), this appeal was part of a consolidation,
NV24-California v. Department of the Navy, MSPB Docket No. SF-0752-14-0306-I-1,
Consolidated Appeal File (CAF). The appellant and one additional employee have filed
individual petitions for review of the initial decision. Only the arguments raised by the
instant appellant will be considered herein.
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   A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

                                            FINAL ORDER

¶1           The appellant has filed a petition for review of the initial decision, which
     sustained the agency’s furlough action. Generally, we grant petitions such as this
     one only when: the initial decision contains erroneous findings of material fact;
     the initial decision is based on an erroneous interpretation of statute or regulation
     or the erroneous application of 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 and AFFIRM
     the initial decision, which is now the Board’s final decision.               5 C.F.R.
     § 1201.113(b).
¶2           The appellant serves as an electronics engineer at the agency’s Naval
     Surface Warfare Center, Port Hueneme Division (NSWC-PHD). Initial Appeal
     File (IAF), Tab 2 at 4; see CAF, Tab 19, Initial Decision (ID) at 13 (citing the
     Hearing Compact Disc (HCD)). The agency proposed to furlough the appellant
     for no more than 11 days due to the budget constraints following the President’s
     March 1, 2013 sequestration order. IAF, Tab 1 at 8-10. After providing an oral
     reply to the deciding official, the agency imposed the furlough action, which was
     subsequently reduced by the Secretary of Defense to no more than 6 days. Id. at
     11-12     (decision   letter);   see   CAF,   Tab   2,   Furlough   Processing   Order
     (incorporating by reference the agency’s administrative record found on the
     Board’s website); Department of the Navy Administrative Record for Fiscal Year
                                                                                        3

     2013    Furlough    Appeals     (Administrative    Record),     Tab   3,   available
     at http://www.mspb.gov/furloughappeals/navy2013.htm.
¶3          The appellant filed an appeal of the agency’s furlough action, which was
     consolidated with several other appeals, and he requested a hearing. CAF, Tabs
     1, 2; IAF, Tab 1 at 2.     The administrative judge held the requested hearing,
     received closing submissions from several employees, including the instant
     appellant, and issued an initial decision sustaining the agency’s furlough action.
     ID at 13-16, 30; IAF, Tab 5 (appellant’s closing brief). In her initial decision, the
     administrative judge found that the agency established cause for taking the
     furlough action based on the budget shortfall resulting from the March 1, 2013
     sequester order, and that the agency’s furlough action promoted the efficiency of
     the service. ID at 5-13.
¶4          The administrative judge also addressed the specific arguments raised by
     the appellant concerning the manner in which the agency implemented his
     furlough. Specifically, she considered and rejected the appellant’s argument that
     he was required to work more than 32 hours each week during the furlough period
     without compensation. 3 ID at 13-16. In his appeal, the appellant alleged that he
     was scheduled to attend a 10-week training, which overlapped with part of his
     furlough period, and that he was required to study and perform assignments on
     evenings and weekends as part of the training. ID at 13 (citing the HCD). The
     agency extended the training course to 12 weeks to accommodate the appellant’s
     reduced schedule as a result of the furlough.      See id.    The appellant alleged,
     however, that he should have been paid overtime for the time he was required to
     study and perform assignments on evenings and weekends. ID at 14 (citing the
     HCD).     The agency denied his requests for overtime and to alter the course
     schedule, noting that overtime had not been authorized for other employees who
     had previously taken the course, and that the course was structured to allow for
     3
       The agency implemented the appellant’s furlough by reducing his work hours from 40
     to 32 hours each week. ID at 13 (citing the HCD).
                                                                                           4

     time to complete assignments during the workday while attending the training.
     See id.
¶5         In her initial decision, the administrative judge found that the Board does
     not have jurisdiction over the appellant’s claim involving a denial of overtime,
     and she further found that, to the extent the appellant alleged that other
     employees received overtime during the furlough period, those requests were of a
     different nature than the appellant’s and that they met the agency’s mission-
     critical standard for approving overtime during sequestration.         ID at 16.   The
     administrative judge thus concluded that the agency implemented the appellant’s
     furlough in a fair and even manner. ID at 15-16.
¶6         The appellant has filed a petition for review only challenging the
     administrative judge’s finding that the agency implemented the furlough in a fair
     and even manner when it denied his requests for overtime. 4 Petition for Review
     (PFR) File, Tab 1. On review, the appellant argues that the administrative judge
     erred in her factual conclusions that the course work for the training could be
     completed during the workday and that he failed to specifically document the
     amount of time he spent working on assignments on evenings and weekends. See
     id. at 4-5. The appellant also argues that his training was unique because no other
     training required employees to study and complete assignments on their own
     time, and that the administrative judge therefore erred in concluding that he failed
     to prove that similar overtime requests were granted during the furlough period
     while his was denied. Id. at 6-7. The agency has filed a response in opposition to
     the petition for review, and the appellant has filed a reply. PFR File, Tabs 3, 4.
¶7         The Board has found that an agency meets its burden of proving a furlough
     promotes the efficiency of the service by showing, in general, that the furlough


     4
       On review, the appellant also frames the issue as a denial of wage compensation based
     on his assertion that he was required to work in excess of 32 hours each week during
     the furlough period. See, e.g., Petition for Review File, Tab 4 at 6 (“[The] [a]gency in
     effect directed after-hours work without providing just compensation.”).
                                                                                        5

     was a reasonable management solution to the financial restrictions placed on it
     and that the agency applied its determination as to which employees to furlough
     in a fair and even manner.       In re Tinker AFSC/DP v. Department of the Air
     Force, 121 M.S.P.R. 385, ¶ 14 (2014).           In Chandler v. Department of the
     Treasury, 120 M.S.P.R. 163, ¶ 14 (2013), the Board held that an agency’s
     decision to award certain employees overtime may be relevant to whether the
     agency applied the furlough uniformly and consistently.        Under Chandler, the
     Board will consider whether an agency used overtime payments to relieve certain
     employees, but not others, of the financial consequences of the furlough, and such
     evidence may be sufficient to show that the furlough did not meet the efficiency
     of the service standard. Id.
¶8        Upon review of the initial decision and the arguments advanced by the
     appellant on petition for review, we agree with the administrative judge that the
     agency implemented the furlough in a fair and even manner, and that the agency
     did not contravene this principle by denying the appellant’s requests for overtime.
     ID at 13-16. The record reflects that the agency restructured the training course
     to account for the fact that the appellant was limited to working 4 days per week
     during the furlough period, and we agree with the administrative judge that the
     agency presented credible evidence that it had not previously granted overtime
     requests for employees taking the course, and that the appellant’s request for
     overtime did not comply with the agency’s guidance for the approval of overtime
     during the sequester. ID at 13-15; see Administrative Record, Tab 8. Although
     the appellant challenges the administrative judge’s factual findings on review, he
     has neither presented evidence contradicting these findings nor identified
     evidence in the record below supporting his assertions. See generally PFR File,
     Tab 1; see also Taylor v. U.S. Postal Service, 23 M.S.P.R. 48, 50 (1984) (mere
     disagreement    with    an     administrative   judge’s   factual   and   credibility
     determinations does not establish a basis for granting a petition for review). We
     thus fully concur with the administrative judge that there is no evidence in the
                                                                                       6

     record that the agency’s denial of overtime was directed at the appellant or that
     the overtime denial demonstrates that the agency did not apply the furlough
     uniformly and consistently. See Kelly v. Department of the Army, 121 M.S.P.R.
     408, ¶¶ 12-13 (2014).       We further find that the agency’s decision to grant
     overtime under limited circumstances, which did not include the appellant’s
     requests, is a spending matter within the agency’s sound discretion and does not
     present a valid basis for challenging the furlough before the Board. See id., ¶ 12.
¶9          Additionally, we agree with the administrative judge that the Board lacks
     jurisdiction over the appellant’s challenges to the denial of his overtime requests
     and his alleged denial of compensation for hours worked in excess of 32 hours per
     week. See, e.g., Liebeck v. Department of Veterans Affairs, 77 M.S.P.R. 696, 698
     (1998). Both the U.S. Court of Appeals for the Federal Circuit and the Board
     have held that the loss or reduction of premium pay, such as overtime, through
     means within the agency’s discretion and not otherwise appealable to the Board,
     is not within the Board’s jurisdiction under chapter 75. Id.; see Strickland v.
     Veterans Administration, 5 M.S.P.R. 526, 528 (1981). A reduction in pay under
     chapter 75, moreover, only occurs when “the rate of basic pay fixed by law or
     administrative action for the positon held by an employee” decreases; such an
     action would therefore not encompass the appellant’s claim that he worked in
     excess of 32 hours per week during the furlough without receiving compensation.
     Id. (citing 5 U.S.C. § 7511(a)(4)); PFR File, Tab 4 at 6. Although the Board will
     consider the manner in which an agency awards overtime in connection with an
     employee’s appeal of a furlough, as noted above, we find no reason to conclude
     that   the   appellant’s   denial   of   overtime   was   directed   at   him.   See
     Chandler, 120 M.S.P.R. 163, ¶ 14. We therefore conclude that the appellant’s
     challenges to the denial of overtime and the lack of compensation for hours
     allegedly worked are not otherwise appealable actions to the Board under chapter
     75. See Liebeck, 77 M.S.P.R. at 698; see also Johnson v. U.S. Postal Service, 67
                                                                                        7

      M.S.P.R. 573, 577 (1995) (the Board’s jurisdiction is limited by statute and does
      not cover all matters alleged to be unfair or unlawful in federal employment).
¶10        Finally, although the appellant has not challenged any of the administrative
      judge’s other findings concerning the agency’s furlough action, we have reviewed
      the remainder of the initial decision insofar as it applies to the appellant and we
      agree that the agency established cause for taking the furlough action and that the
      furlough action promotes the efficiency of the service. See Lopez v. Department
      of the Navy, 121 M.S.P.R. 647, ¶¶ 15-16 (2014).        The administrative judge’s
      initial decision sustaining the furlough action is AFFIRMED.

                       NOTICE TO THE APPELLANT REGARDING
                          YOUR FURTHER REVIEW RIGHTS
           You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                United States Court of Appeals
                                    for the Federal Circuit
                                  717 Madison Place, N.W.
                                   Washington, DC 20439

           The court must receive your request for review no later than 60 calendar
      days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
      27, 2012). If you choose to file, be very careful to file on time. The court has
      held that normally it does not have the authority to waive this statutory deadline
      and that filings that do not comply with the deadline must be dismissed. See
      Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
           If you need further information about your right to appeal this decision to
      court, you should refer to the federal law that gives you this right. It is found in
      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.
                                                                                 8

Additional information is available at the court's website, www.cafc.uscourts.gov.
Of particular relevance is the court's "Guide for Pro Se Petitioners and
Appellants," which is contained within the court's Rules of Practice, and Forms 5,
6, and 11.
      If you are interested in securing pro bono representation for your appeal to
the 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.
