UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

JAMES MOSER,1

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

DC-0752-13-2643-I-1

DATE: March 3, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

James Moser, Arlington, Virginia, pro se.

Andrea L. Geiger, Esquire, April Christensen, Esquire, Craig G. Trower, 

Esquire, and Tracey Rockenbach, Esquire, Washington, D.C., for the 

agency.

BEFORE

Susan Tsui Grundmann, Chairman

Mark A. Robbins, Member

 1 Pursuant to 5 C.F.R. § 1201.36(a), this case was part of a consolidation, Financial 

Management and Comptroller v. Department of the Navy, MSPB Docket No. 

DC-0752-14-0477-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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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; 

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). 

BACKGROUND

¶2 The agency furloughed the appellant from his Supervisory Financial 

Management Analyst position with its Financial Management and Comptroller 

Operations Division for 6 work days based on “the extraordinary and serious 

budgetary challenges facing the Department of Defense (DOD) for the remainder 

of Fiscal Year (FY) 2013, the most serious of which is the sequester that began on 

March 1, 2013,” i.e., across-the-board reductions to federal budgetary resources 

caused by the Budget Control Act of 2011, as amended by the American Taxpayer 

Relief Act of 2012. Initial Appeal File (IAF), Tab 1 at 10-13, Tab 3 at 4-10. The 

appellant filed an appeal challenging the furlough action, which the Board 

consolidated with the appeals of similarly-situated employees. IAF, Tab 1;
3

MSPB Docket No. DC-0752-14-0477-I-1, Consolidated Appeal File (CAF), 

Tab 2. 

¶3 After holding the requested hearing, the administrative judge affirmed the 

furlough actions. CAF, Tab 16, Initial Decision (ID) at 1, 15. He found that the 

agency proved by preponderant evidence that the furlough actions promoted the 

efficiency of the service and that the agency applied its determination as to which 

employees to furlough in a fair and even manner. ID at 21-22. In so finding, the 

administrative judge rejected the appellant’s argument that the Secretary of 

Defense exceeded his authority in ordering the furlough actions over employees 

of the Department of the Navy (Navy). ID at 22-23; CAF, Tab 5 at 6-7 & n.3. 

¶4 Of the several appellants whose appeals were consolidated for processing, 

only the appellant has filed a petition for review. Petition for Review (PFR) File, 

Tab 1. The agency has filed a response in opposition to the petition for review, 

PFR File, Tab 3, to which the appellant has replied, PFR File, Tab 4. 

DISCUSSION OF ARGUMENTS ON REVIEW

¶5 In his petition for review, the appellant argues that the Navy, and not DOD, 

is responsible for decisions regarding the personnel matters of its employees 

under 10 U.S.C. § 5013. PFR File, Tab 1 at 4. He continues to assert, therefore, 

that the Secretary of Defense exceeded his authority in ordering the furlough 

actions. Id. at 4-6; CAF, Tab 5 at 6-7 & n.3. We disagree. As the administrative 

judge properly stated, although the Navy is separately organized under the 

Secretary of the Navy, it operates under the express authority, direction, and 

control of the Secretary of Defense. ID at 22; see 10 U.S.C. § 5011; see also Yee 

v. Department of the Navy, 121 M.S.P.R. 686, ¶ 14 (2014); Department of the 

Navy Administrative Record for FY 2013 Furlough Appeals, available at 

http://www.mspb.gov/furloughappeals/navy2013.htm (last visited February 24, 

2015), Tab 12 at 105-107. Indeed, the statute identified by the appellant as 

supporting his position, 10 U.S.C. § 5013, explicitly states that the Secretary of 
4

the Navy’s responsibilities are “[s]ubject to the authority, direction, and control 

of the Secretary of Defense.” 10 U.S.C. § 5013(b); PFR File, Tab 1 at 4. The 

appellant, therefore, has set forth no basis to disturb the administrative judge’s 

finding that the Secretary of Defense, as the head of DOD, clearly had the 

authority to order the furlough actions at issue in this appeal.

3

 ID at 22.

¶6 In his petition for review, the appellant also claims that the initial decision 

is internally inconsistent concerning the administrative judge’s analysis of the 

efficiency of the service standard. PFR File, Tab 1 at 6-9. In particular, he 

claims that the administrative judge’s statement that the agency only needed to 

establish, in general, that the furlough was a reasonable management solution to 

the financial restrictions placed on it contradicted his statement that he had no 

authority to examine the agency’s fiscal decisions regarding the furlough. Id. He 

claims that, because the Navy plainly showed that it had no need to furlough its 

employees, it was unnecessary for the administrative judge to “look behind” or 

examine the agency’s decision to implement the furlough actions. Id. In making 

this argument, the appellant appears to be challenging the administrative judge’s 

finding that the furlough action promoted the efficiency of the service. Id. We 

find this argument unavailing. Although the appellant claims that the Navy had 

adequate funding to avoid furloughing its employees, the Board has found that it 

was reasonable for DOD to consider its budget situation holistically, rather than 

isolating each military department’s situation, in making its furlough decisions. 

Yee, 121 M.S.P.R. 686, ¶ 14. Here, the administrative judge properly found that 

the agency established that DOD faced a lack of funds and that the furlough 

 3 The appellant cites White v. Department of the Army, 115 M.S.P.R. 664, ¶ 7 (2011), 

and Pervez v. Department of the Navy, 193 F.3d 1371, 1373-74 (Fed. Cir. 1999), to 

support his position that the Secretary of Defense lacked the authority to furlough Navy 

employees. PFR File, Tab 1 at 4-6. These cases, however, are not analogous to the 

present appeal, as they concerned whether the military departments were separate from 

DOD and each other for purposes of calculating probationary periods under the 

applicable Office of Personnel Management regulations. See White, 115 M.S.P.R. 664, 

¶¶ 7-11; Pervez, 193 F.3d at 1373-74. 
5

actions, including those of Navy employees, were a reasonable management 

solution to the problem. ID at 21-22; see Yee, 121 M.S.P.R. 686, ¶ 14.

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. 

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 court 

appeal, you may visit our website at http://www.mspb.gov/probono for a list of 

attorneys who have expressed interest in providing pro bono representation for 
6

Merit Systems Protection Board appellants before the court. 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board