# United States **Court of Appeals**  **for the Federal Circuit**

______________________ VICTORIA SNYDER, Petitioner

v.

DEPARTMENT OF THE NA VY, Respondent

______________________

2016

- 1940

______________________ Petition for review of the Merit Systems Protection Board in No. DC

- 0752

- 13

- 6201 -I- 1.

______________________

Decided: April 26, 2017

______________________

M ICHAEL G RAHAM , Fredericksburg, VA, argued for p etitioner.

H ILLARY S TERN , Commercia l Litigation Branch, Civil Division, United States Department of Justice, Washin gton, DC, argued for respondent. Also represented b y B ENJAMIN C. M IZER , R OBERT E. K IRSCHMAN , J R ., A LLISON K IDD -M ILLER

.

______________________

Before R EYNA , L INN , and C HEN , Circuit Judges

. C HEN , Circuit Judge

.SNYDER v. NAVY 2

Victoria Snyder appeals the Final Decision of the Me rit Systems Protection Board (Board) affirming the dec ision 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 w e find no reversible error in the Board’s dec ision

, we affirm

. B ACKGROUND

I.
This case is one of many that arise from the seque stration 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 esta blished spending limits for agencies of the federal gover nment 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 sequestr ation order requiring reductions in spending from most federal budget accounts for Fiscal Year 2013. Sequestr ation 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 st eps 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 dire cting DOD managers to pr epare 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 empl oyees, and although DOD consi dered and implemented various actions to reduce the budgetary shortfall, a shortfall nevertheless remained which would be addressed through fu rloughs of civilian employees. The memorandum provided that “[f]urloughs will be imp osed in every military department as well as almost every agency and in our working capital funds.” J.A. 18 3. 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 instrumenta lity (NAF) employees, fo reign national employees, and various types of employees not paid directly by DODMilitary 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).SNYDER v. NAVY 4

Subsequently, on June 21, 2013, a bipartisan group of thirty

- one members of Congress sent a letter to the Secr etary of Defense expressing concern about the determin ation that civilian workers at entities funded through Defense working capital funds (WCFs) would also be subject to fur lough. 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 author ity.” Einboden , 802 F.3d at 1323 (citing U.S. Gov’t A ccountability Office , GAO

– 05

– 734SP, A Glossary of Terms Used in the Federal Budget Process 101 (2005) ). A fter

rece iving initial working capital through appropriation, WCF entities are self

- supporting and function from the fees charged for the services they provide to their custo mers

. 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 “pu rchases” from WCFs. Id

. Robert Hale, Under Secretary of Defense (Comptroller) , on behalf of the SECDEF, r esponded to the c ong ressional inquiry regarding WCFs in a July 2013 st atement to Congress , explaining that “ fu rloughs of all DOD civilians will save about $2 billion in f isc al year 2013, including more than $500 million assoc iated with reduced personnel costs in working capital fund activities. These working capital fund pe rsonnel 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, impl ementation of the furloughs generally proceeded across DOD, including WCF ent ities.

II.
Ms. Sny der was a civilian mechanical engineer at the Naval Surface Warfare Center

, Dahlgre n 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 otherSNYDER 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 ser ious budgetary challenges [,]

. . . the most serious of which is the sequester.” J.A. 834.

At that time , Ms. Snyder worked full

- time on a Loc kheed Martin Advanced Shipboard Weapons Control (ASWC) project to modify existing weapons control software. 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 provid e exp ertise 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 pro ject in 2015 were to be remitted to Lockheed Martin followi ng Dahlgren’s submission of a final fiscal report.
On May 30, 2013, Lockheed Martin sent a letter to the Navy requesting that the Dahlgre n employees supporting the ASWC CRADA

— including Ms. Snyder— be exempt from furlough. The letter argued that t he pro ject was fully funded by Lockheed Martin Independent and R esearch Development ( IRAD ) funds and not Federal appr opria tions

, 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 Lock heed Martin

- funded ASWC CRADA should be exempted from furlough like the listed SECDEF exceptions

. In a letterSNYDER v. NAVY 6

dated June 24, 2013, the Navy deciding official responded to Ms. Snyder, denying her request. 3

III.

Ms

. Snyder petitioned the Boa rd for review , asserting that the Na vy had improperly furloughed her. Her case was consolidated with thirty

- nine other furloughed Dahlgren employees. A n administrative judge (AJ) conducted a consoli dated 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 re quested the AJ take official notice of the Federal Technology Transfer Act of 198 6

, 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 provi sion s collectively (i) prohibit the federal g overnment from pro viding funds
to a non -government CRADA participant ; and (ii) obligate the government to maintain separate and distinct a ccounts 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 repr ogramming requests a pproved 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 “comprom ise

, ” 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 Co mp troller for Dahlgren

, testified that when a WCF employee like Ms. Snyder performs work on a job reques ted 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 Loc kheed Martin certain monies in a later, subsequent fiscal

year— upon the completion of the project

— the Navy still realized a n immediate benefit at that specific point in time in 2013 in responding to the sequestration

. IV.
On September 11, 2015, t he AJ issue d an Initial Dec ision in the consolidated case and found Snyder’s furlough

w as a reasonable management solution to the shortage of funds caused by seques tration and therefore promoted the efficiency of the service

. The AJ acknowledged that Ms. Snyder cite d “numerous agency regulations concerningSNYDER v. NAVY 8

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 ther e 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. T he AJ also found there was no evidence that Ms. Snyder even requested overtime pay

, further undercutting her claim t hat 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).

D ISCUSSION

I.

Our authority to review a decision of the Board is li mited by statute. We may set aside the Board’s decision only if it is “(1) arbitrary, capricious, an abuse of discr etion, or otherwise not in accordance with law; (2) obtained without procedures required by law, rule, or r egulation 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 ev idence is “such relevant evidence as a reasonable mindSNYDER 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 (quo ting 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 dec ision failed to discuss the controlling law and facts and, therefore, did not const itute a reasoned opinion providi ng an adequate basis for review under the Board’s regul ations . 5 C.F.R. § 1201.111(b)(1); Spithaler v. Office of Pers . M gm t. , 2 MSPB 2, 1 M.S.P.R. 587, 588

– 89 (1980)

. Ms. Snyder argues that the I nitial D ecision “devoted a negli gi ble 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 summ arize [Ms. Sny d er’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 a nnounced the admini strative judge’s disposition of the caseSNYDER v. NAVY 10

without any analysis, failed to satisfy th e 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 co mplained

- of analysis in Spithaler

. W ithin the 26

- page opinion, the AJ dedicated multiple pages to addressing Ms. Snyder’s specific claims and its reasoning for uphol ding 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 w ould 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 (Fe d. Cir. 2000) (“[A]bsent specific evidence indicating othe rwise, all evidence contained in the record

. . . must be presumed to have been reviewed by [the agency].”); Me dtronic, Inc. v. Daig Corp. , 789 F.2d 903, 906 (Fed. Cir. 1986) (“We presume that a fac t finder reviews all the evidence presented unless [the fact finder] explicitly expresses otherwise.”).

Here , t he AJ identified the princip a l legal issue, summarized the facts material to resolving that issue, and made clear the reasoning that led the AJ t o reject Ms. Snyder’s claim. T he Initial Decision recognized that the funding source for the CRADA originated from a non

government entity, i.e., Lockheed Martin . I t also acknowledged the regulations concerning the proper administration of CRADA funds. T he 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 forSNYDER v. NAVY 11

the project t o which she was presently assigned

. T he AJ therefore reasoned that , for reasons of responding to the sequestration, Ms. Snyder , as a WCF employee, wa s no different from other WCF employees who were fu rloughed. 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 th e decision to affirm her furlough is nevertheless un supported by substantial eviden ce

. According to Ms. Snyder, the above

- cited stat utory and regulatory authority and the plain terms of the CRADA establish that the funds used to pay her salary did not involve an appropria tion of the United State s, but rather, they originated from non

- Fe deral funds that cannot be spent for a non

- CRADA purpose

. F urther, Ms. Snyder argues the Navy was required to return to Loc kheed Martin any excess funds at the end of the CRADA project , which underscores that the funds belong to Loc kheed Martin, not the g overnment

. 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 a ppeal . 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 o f the agency’s furlough decision

. 4

4 Ms. Snyder also t akes issue with the reliability of Ms. Clark’s testimony that all Dahlgren employees are paid directly from the WCF, regardless of funding source. C redibility determinations made by the Board are “virt u-SNYDER v. NAVY 12

Agencies have broad discretion to take actions to co ntrol 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) ). W e have also previ ously explained that, when face d 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 132 4–2 5; 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 W CF entities and were furloughed in accordance with the SECDEF ’s direction to furlough WCF employees. In both case s , 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 WCF s 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 the re is a sufficient nexus between the dec ision to furlough Ms. Snyder and the sequestration

. DOD was faced with a sudden, dramatic

, agency

- wide funding

ally unreviewable.” Hamb sch v. Dep’t of Treasury , 79 6 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 shor tfall, 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 fund s that originated from a non -government e ntity

, 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 f

urlough . 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. “W e . . . 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 curren tly working on CRADA projects

— would be part of an overall effort to reduce expenditures in the face of d ecreased funding re sulting from budget reductions during that fiscal year . And even if the savings realized by the WCF were only temporary (because the Navy could pote ntially 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

.SNYDER v. NAVY 14

Fina lly, we reject Ms. Snyder’s additional argument
, raised for the first time in her reply brief, that he r situ ation fits within the defini tion of exception (i) from the SECDEF memorandum, pertaining to funding sources outside of the DOD

- military budget. Thi s argument was waived. It is well

- established that an agency is not r equired to respond to arguments that were never made to the agency. For example, in Department of Transport ation v. Public Citizen , 541 U.S. 752 (2004), the Supreme Court declined to co nsider a challenge to an agency action on the basis that the agency “fail[ed] properly to consider possible alternative s ,” where the challengers “did not raise these particular objections” to the agency. I d. at 764

– 65 (“Respondents have therefore forfeite d any obje ction 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 o utside of the government, including exce ptions (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 fa c t help DOD respond to its budget shortfall.

W e 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 D efense

- 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. Sny der presents no evidence to support the conclusion that the Navy WCF is outside of the DOD (subfunction 051) budget. Nor could s he, 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 t h e furlough pursuant to SECDEF exception (i).

We therefore conclude that substantial evidence su pports the AJ’s decision that the furlough of Ms. Snyder

was a reas onable management solution to the financial restrictions placed on the N avy due to sequestration and thus promot ed the efficiency of the service

. III

. Ms. Snyder argues that the Board also misevaluated the evidence demonstrating that the Navy fai led 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 b ecause 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. § 1201.5 8 (c) (2015)

. 5
As an initial matter, we see no error in the AJ’s fin ding that Mr. Fontenot’s testimo ny amounted to nothing more than speculation that the approval of specific ove rtime requests was somehow related to employee fu r5 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 argum ent was not readily available before the record closed; or
(2) It is in rebuttal to new evidence or a rgument submitted by the other party just before the record closed.SNYDER v. NAVY 16

loughs. Moreover, Ms. Snyder presented no evidence that any of the furloughed ASWC CRADA e mployees had overtime requests denied and she admitted to never actually request ing overtime during the relevant time period . Thus, as the AJ recognized, Ms. Snyder’s pro ffered testimony that those ASW C 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 harm ful abuse of discr etion. And, i n any event, the AJ explained “even if the [Navy] had not provided this evidence, my finding would be no different due to the testimony provid ed by [Ms. Snyder] and Mr. Fontenot at the hearing.” J.A. 24 n.9

. Thus, even if the AJ e rred 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.

C ONCLUSION For the foregoing reasons, we affirm the judgment of the Board upholding Ms. Snyder’s furlough

. AFFIRMED

C OSTS

No costs.