UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD 

MATTHEW FURTEK,

Appellant,

v.

DEPARTMENT OF THE NAVY,

Agency.

DOCKET NUMBER

SF-0752-13-2167-I-11

DATE: June 22, 2015

THIS FINAL ORDER IS NONPRECEDENTIAL2

Matthew Furtek, Camarillo, 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2 A nonprecedential order is one that the Board has determined does not add 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 Parties may cite nonprecedential orders, 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

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). 

¶2 The appellant serves as an electronics engineer at the agency’s Naval 

Surface Warfare Center, Port Hueneme Division. Initial Appeal File (IAF), Tab 1 

at 7. 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. Id. at 8-10. After providing a written reply to the deciding official, the 

agency imposed the furlough action, which the Secretary of Defense subsequently 

reduced to no more than 6 days. Id. at 11-12 (decision letter); IAF, Tab 3 at 6-13 

(appellant’s written response to the deciding official); 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 2013 Furlough Appeals (Administrative Record), Tab 3, available 

at http://www.mspb.gov/furloughappeals/navy2013.htm.
3

¶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 appellant subsequently withdrew his request for a 

hearing, and after he submitted a close of record submission, the administrative 

judge issued an initial decision sustaining the agency’s furlough action. IAF, 

Tabs 2, 4; CAF, Tab 19, Initial Decision (ID). 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. The administrative judge further concluded that the 

appellants, collectively, did not establish any of their affirmative defenses, and 

that they had a meaningful opportunity to respond to the proposed furlough action 

prior to a final decision being issued. ID at 22-29.

¶4 The appellant has filed a petition for review raising several general 

arguments about the manner in which the agency furloughed employees. Petition 

for Review (PFR) File, Tab 1. On review, the appellant argues that the agency 

failed to present specific evidence that the unit to which he is assigned suffered a 

budget deficit, that there was no cause to impose a furlough, and that the 

Secretary of Defense exceeded his authority by ordering the several military 

agencies under the umbrella of the Department of Defense to furlough their 

employees. Id. at 8-9. The appellant also argues that the agency has failed to 

present evidence that his furlough resulted in specific savings to the agency, and 

he argues that the agency’s process for furloughing employees does not comport 

with reduction in force principles. Id. at 10-11. Finally, the appellant argues that 

the agency committed a prohibited personnel practice by furloughing employees 

when there was no financial need to do so, and he has requested an award of 

treble damages. Id. at 11. 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.
4

¶5 We have reviewed the initial decision, along with the record developed 

below, and we find no reason to differ with the administrative judge’s 

well-reasoned findings sustaining the agency’s furlough action. We agree with 

the administrative judge that the record adequately supports just cause for taking 

the furlough action based upon the sequester order. ID at 5-13. Although the 

appellant argues on petition for review that there is no specific evidence that the 

Department of the Navy suffered a budget shortfall, the Board has held that the 

efficiency of the service standard for a furlough action must be judged from the 

viewpoint of the Department of Defense, and not from the individual military 

departments under its authority. See Yee v. Department of the 

Navy, 121 M.S.P.R. 686, ¶¶ 13-14 (2014). In Yee, the Board sustained the 

employee’s furlough upon finding that it was reasonable for the Department of 

Defense to consider its budget situation holistically, rather than considering each 

military department’s situation individually. Id. We thus find no merit to the 

appellant’s argument that the Department of the Navy, or his specific unit, did not 

suffer a budget shortfall, which required employees to be furloughed.

¶6 We similarly find no merit to the appellant’s argument that the agency 

failed to present evidence of specific savings tied to his furlough. See PFR File, 

Tab 1 at 10. In Einboden v. Department of the Navy, 122 M.S.P.R. 302, ¶ 18 

(2015), the Board recently held that an agency is not required to show that any 

funds saved from an employee’s furlough actually were used for any other 

purpose. Instead, the Board found that, to meet the efficiency of the service 

standard, it is enough for the agency to show that the furlough action was a 

reasonable management solution when the action was taken. Id. We find that the 

agency’s furlough in this case meets the standard in Einboden based upon the 

evidence of an anticipated budget shortfall at the time it imposed the furlough. 

¶7 Finally, to the extent that the appellant argues that the agency’s furlough is 

inconsistent with reduction in force principles, the Board has found that a 

furlough, although guided by such principles, also is governed by a separate set of 
5

regulatory standards under chapter 75, and that employees in different 

competitive areas may be treated differently in a furlough because they are not 

similarly situated. See Salo v. Department of Defense, 122 M.S.P.R. 417, ¶ 10

(2015) (citing Weathers v. Department of the Navy, 121 M.S.P.R. 417, ¶¶ 8-9 

(2014)). The appellant’s argument that the agency’s furlough is inconsistent with 

the reduction in force regulations thus provides no basis for disturbing the initial 

decision. See id., ¶ 7 (finding that the regulations found at 5 C.F.R. Part 752 

apply to furlough actions); PFR File, Tab 1 at 11.

¶8 We have considered the appellant’s remaining arguments on petition for 

review, including his request for an award of treble damages and that the agency 

committed a prohibited personnel practice under 5 U.S.C. § 2302(b)(12) by 

imposing his furlough,

3 and we find that they present no basis for overturning the 

initial decision. The administrative judge’s initial decision sustaining the 

agency’s 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 

 3 We agree with the administrative judge’s finding that the appellant’s section 

2302(b)(12) affirmative defense is duplicative of his appeal of the agency’s furlough 

action and that it does not present a separate basis for challenging the furlough. ID at 

29.
6

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 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:

Washington, D.C.

______________________________

William D. Spencer

Clerk of the Board