NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

SCOTT CARPENTER,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2016-2180

______________________ 

Appeal from the Merit Systems Protection Board in 

No. DC-0752-13-2215-B-1. 

______________________ 

Decided: December 7, 2016

______________________ 

SCOTT CARPENTER, Kensington, MD, pro se.

MICHAEL D. SNYDER, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR., SCOTT D.

AUSTIN. 

______________________ 

Before HUGHES, SCHALL, and STOLL, Circuit Judges.
2 CARPENTER v. NAVY

PER CURIAM. 

Scott Carpenter appeals the final decision of the Merit 

Systems Protection Board affirming the Department of 

the Navy’s decision to furlough him for six days. Because 

the Board did not abuse its discretion in limiting

Mr. Carpenter’s interrogatory requests and because 

substantial evidence supports the Board’s affirmance of 

the furlough, we affirm. 

I 

Mr. Carpenter is a mechanical engineer at the Naval 

Surface Warfare Center (NSWC), Carderock Division in 

West Bethesda, Maryland. In response to the Balanced 

Budget and Emergency Deficit Control Act of 2011, the 

Navy furloughed Mr. Carpenter for six days. His appeal 

was consolidated with the appeals of other employees at 

NSWC Carderock.

Mr. Carpenter moved to compel responses to Interrogatories 12 and 15. Interrogatory 12 requested “the 

number of Navy civilians who worked in excess of 64 

hours per pay period during any pay period in which they 

were furloughed and the total number of hours worked in 

excess of 64 hours per pay period for those workers.” 

Interrogatory 15 requested “information regarding the 

process for determining the number of total furlough 

hours for each employee.” 

The Administrative Judge denied his motion to compel, and Mr. Carpenter petitioned the Board for review. 

The Board granted his motion but limited the scope of 

Interrogatories 12 and 15 to only “similarly situated Navy 

civilians.” J.A. 109–10. On remand, in response to Interrogatory 12, the Agency provided records describing 

overtime and compensatory hours for all NSWC Carderock ND scientists and engineers working at West Bethesda or the Washington Navy Yard. In response to 

Interrogatory 15, the Agency provided documents “ex-
CARPENTER v. NAVY 3

plain[ing] in general terms the method by which the 

agency decided to furlough employees and the amount of 

hours that employees would be furloughed.” J.A. 345. 

The Administrative Judge concluded that the Agency 

complied with Mr. Carpenter’s discovery requests and had 

met its burden of proving that the furlough promoted the

efficiency of the service. The Board affirmed. 

Mr. Carpenter appeals the Board’s rulings on the scope of 

discovery and the affirmance of the furlough. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(9). 

II

We review the Board’s decision to determine if it is: 

“(1) arbitrary, capricious, an abuse of discretion, 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). For procedural matters such 

as discovery, we will not overturn the Board “unless an 

abuse of discretion is clear and is harmful.” Curtin v. 

Office of Pers. Mgmt., 846 F.2d 1373, 1378 (Fed. Cir. 

1988). 

The agency bears the burden of proving that a furlough “will promote the efficiency of the service.” 5 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 v. Dep’t of Navy, 802 F.3d 1321, 

1325 (Fed. Cir. 2015). 

Accordingly, an agency must “treat similar employees 

similarly.” Chandler v. Dep’t of Treasury, 2013 M.S.P.B. 

163 ¶ 8 (2013). Whether an employee is similarly situated is based on reduction-in-force competitive level principles, id., which are “defined solely in terms of the agency’s 

organizational unit(s) and geographical location.” 
4 CARPENTER v. NAVY

5 C.F.R. § 351.402(b). Although Mr. Carpenter argues 

that discovery regarding “similarly situated” employees 

should include all furloughed employees in the Department of Defense, the Board acted within its discretion by 

limiting the Agency’s obligation to produce documents 

under Interrogatory 12 to NSWC Carderock employees 

working in similar occupations and geography. 

The Board also acted within its discretion in accepting 

the Agency’s response to Interrogatory 15. Mr. Carpenter

sought additional detailed information about how the 

agency structured the furlough, which the Board concluded was beyond the scope of its review. We agree.

A furlough of less than thirty days is an adverse action. 5 C.F.R. § 752.401(a)(5). “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. In Einboden, when faced with this exact question, we determined that a Navy furlough responding to 

the Balanced Budget and Emergency Deficit Control Act 

of 2011 promoted the efficiency of the service because it 

bore a nexus to an undisputed funding shortage. Id. at 

1326. Further, this court may not “second guess agency 

decisions as to how to prioritize funding when faced with 

a budget shortfall.” Id. at 1325. Despite Mr. Carpenter’s 

insistence that Einboden is incorrect, it binds this panel. 

See, e.g., Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1563 

(Fed. Cir. 1991) (“[W]e note that decisions of a three-judge 

panel of this court cannot overturn prior precedential 

decisions.”). Because of the deference granted to agency 

funding decisions, the Board did not abuse its discretion 

in limiting the scope of Interrogatory 15. 

For the same reason, we also find substantial evidence supports the Board’s affirmance of the furlough. 

Mr. Carpenter argues that the Agency must prove that
CARPENTER v. NAVY 5

the funding cuts directly impacted the particular funds 

from which he was paid. We rejected this argument in 

Einboden, where the petitioner argued “that the Navy 

failed to show that his unpaid salary was used to meet a 

budgetary shortfall and thus failed to demonstrate that 

the furlough would ‘promote the efficiency of the service.’” 

802 F.3d at 1325. Here, the agency satisfied the Einboden standard by providing substantial evidence that the 

furlough bore a nexus to an undisputed funding shortage. 

Further, the Board found the Agency’s approval of overtime was not connected to the furlough, and that the 

agency structured the furlough in a fair and even manner. 

Substantial evidence also supports this finding. Thus, the 

Board did not commit reversible error in affirming the 

furlough.

AFFIRMED

No costs.