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 petitioner. 

HILLARY STERN, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, 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 Merit Systems Protection Board (Board) affirming the decision 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 decision, we affirm. 

BACKGROUND

I.

This case is one of many that arise from the sequestration 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 established spending limits for agencies of the federal government 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 sequestration order requiring reductions in spending from most 

federal budget accounts for Fiscal Year 2013. Sequestration 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 prepare to furlough2 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 considered 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 instrumentality (NAF) employees, foreign 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).

 
4 SNYDER v. NAVY

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

thirty-one members of Congress sent a letter to the Secretary of Defense expressing concern about the determination 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 authority.” Einboden, 802 F.3d at 1323 (citing U.S. Gov’t Accountability 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 customers. 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 “purchases” from WCFs. Id. Robert Hale, Under Secretary of 

Defense (Comptroller), on behalf of the SECDEF, responded to the congressional inquiry regarding WCFs in a 

July 2013 statement to Congress, explaining that “furloughs of all DOD civilians will save about $2 billion in 

fiscal year 2013, including more than $500 million associated 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, implementation 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 Lockheed 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 

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 Research Development (IRAD) funds and not Federal appropriations, and therefore, it “should be viewed as thirdparty 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 Martinfunded 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 accounts 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 reprogramming 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 requested 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 Lockheed 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 Decision 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 limited by statute. We may set aside the Board’s decision 

only if it is “(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) obtained 

without procedures required by law, rule, or regulation

having been followed; or (3) unsupported by substantial 

evidence.” 5 U.S.C. § 7703(c); Whitmore v. Dep’t of Labor, 

680 F.3d 1353, 1366 (Fed. Cir. 2012). Substantial evidence 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 (quoting 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 decision 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 regulations. 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 summarize [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 announced 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 complained-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 upholding 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 otherwise, all evidence contained in the record . . . must be 

presumed to have been reviewed by [the agency].”); Medtronic, 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 nongovernment 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 furloughed. 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 statutory 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 Lockheed Martin any excess funds at the end of the CRADA 

project, which underscores that the funds belong to Lockheed 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 appeal. 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 control 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 decision 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 shortfall, 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 currently working on CRADA projects—would be part of an 

overall effort to reduce expenditures in the face of decreased 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 potentially 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 situation 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 required to respond to arguments that were never made to 

the agency. For example, in Department of Transportation 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 objection 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 exceptions (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 Defense-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 supports 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 finding that Mr. Fontenot’s testimony amounted to nothing 

more than speculation that the approval of specific overtime requests was somehow related to employee fur5 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 argument 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 proffered 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 discretion. 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.