Jason Smith v. Department of the Air Force

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JASON SMITH,
Petitioner
v.
DEPARTMENT OF THE AIR FORCE,
Respondent
______________________
2015-3206
______________________
Petition for review of the Merit Systems Protection
Board in Nos. SF-0752-13-1253-I-1, SF-0752-14-0283-I-1.
______________________
Decided: January 13, 2016
______________________
J ASON SMITH , Woodbridge, VA, pro se.
ALEXIS J. ECHOLS , Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, for respondent. Also represented by
BENJAMIN C. MIZER, ROBERT E. K IRSCHMAN, J R.,
ELIZABETH M. H OSFORD.
______________________
Before M OORE, O’MALLEY , and WALLACH , Circuit Judges.
P ER CURIAM

-- 1 of 6 --

SMITH v. AIR FORCE 2
Jason Smith appeals the Merit Systems Protection
Board’s (“Board”) decision that affirmed the decision by
the Department of the Air Force (“Air Force”) to furlough
him for six days in July and August 2013 as a result of
the sequestration legislation. Because we find no reversi-
ble error in the Board’s decision, we affirm.
BACKGROUND
This case is one of many that arise from the seques-
tration legislation (i.e., the Budget Control Act of 2011
and the American Taxpayer Relief Act of 2012) adopted by
Congress. See, e.g., Nat’l Fed’n Fed. Emps., Local 1442 v.
Dep’t of the Army, Nos. 2014-3175, 2014-3189, 2015 WL
6143247, at *1–2 (Fed. Cir. Oct. 20, 2015) (“NFFE”);
Einboden v. Dep’t of the Navy, 802 F.3d 1321, 1323 (Fed.
Cir. 2015). As a result of this legislation, the Department
of Defense’s (“DOD”) yearly budget was cut by $37 billion
approximately halfway through Fiscal Year 2013. Know-
ing that its budget would be cut significantly, the DOD
took a number of steps to respond to the sequestration.
One such step involved notifying most of the DOD’s
civilian personnel of the possibility of furloughs. In a May
2013 memorandum, the Secretary of Defense explained
that more than $30 billion of the total $37 billion cut
would be to operation and maintenance accounts that pay
many, but not all, of the DOD’s civilian workers. The
memorandum also explained that furloughs of civilian
workers would be imposed in every military department,
with only limited exceptions for civilians deployed in
combat zones, necessary to protect life and property, or
excepted for specific mission reasons. While the DOD
originally expected to furlough civilian employees for up
to eleven days, it was able to reduce this number of days
to six after Congress approved a large reprogramming
request DOD made earlier that year, which gave the DOD
flexibility to move funds across accounts.
Mr. Smith is a civilian employee at the Space and
Missile Systems Center, Los Angeles Air Force Base, and

-- 2 of 6 --

SMITH v. AIR FORCE 3
his salary is paid from the Air Force’s Research, Devel-
opment, Test, and Evaluation program (“RDT&E” or
“Program”). Of the sixteen appropriations that fund the
Air Force, thirteen were directly impacted by the seques-
tration, including both the RDT&E program and Opera-
tions and Maintenance. Mr. Smith was provided notice of
the furloughs and ultimately was furloughed for six days.
Mr. Smith filed a timely notice of appeal with the Board,
alleging that he was improperly furloughed for several
reasons. The Board consolidated his case with several
others, and, after a hearing, determined that the Air
Force had shown there was cause for the furloughs and
that the furloughs promoted the efficiency of the service.
Specifically, the Board determined that the Air Force met
its burden by showing that the furloughs were a reasona-
ble management solution to the financial restrictions it
faced and that it determined which employees to furlough
in a fair and even manner. Mr. Smith timely appeals. We
have jurisdiction under 28 U.S.C. § 1295(a)(9).
D ISCUSSION
Our review of the Board’s decisions is limited by stat-
ute. We may set aside the Board’s decision only if we find
it to be: “(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); see also Einboden, 802 F.3d
at 1324. An agency, such as the DOD, may furlough an
employee for lack of work or funds or for other non-
disciplinary reasons. 5 U.S.C. §§ 7511(a)(5), 7512(5);
NFFE, 2015 WL 6143247, at *4. Because furloughs of
thirty days or less are adverse actions, an agency can only
take such action if it “will promote the efficiency of the
service.” NFFE, 2015 WL 6143247, at *4 (quoting 5
U.S.C. § 7513(a)). The “‘efficiency of the service’ standard
in a furlough case is satisfied by the agency demonstrat-
ing ‘that the furlough was a reasonable management
solution to the financial restrictions placed on it and that

-- 3 of 6 --

SMITH v. AIR FORCE 4
the agency applied its determination as to which employ-
ees to furlough in a ‘fair and even manner.’’” Id. (quoting
Chandler v. Dep’t of the Treasury, 120 M.S.P.R. 163, 171
(2013)).
The Board determined that the Air Force met its bur-
den of establishing that Mr. Smith’s furlough promoted
the efficiency of the service. Noting that agencies have
broad discretion to take action to avoid deficits, the Board
found that the Air Force showed that the DOD had to
make significant budgetary cuts as a result of the seques-
tration legislation to avoid a deficit. It also found that the
DOD’s response was a reasonable management solution to
the financial restrictions and that the DOD decided which
employees to furlough in a fair and even manner. We see
no reversible error in the Board’s analysis.
On appeal, Mr. Smith argues that his furlough notice
only discussed a shortage of funds in Operations and
Maintenance funds—not the RDT&E program funds from
which he was paid. He argues that, while the Air Force
could “reprogram” funds from one RDT&E program
element to another program element on its own, any
transfer of funds from an RDT&E account requires Con-
gressional approval. Thus, Mr. Smith argues that be-
cause his furlough notice only identified shortages in
Operations and Maintenance accounts and the Air Force
did not request Congressional approval to transfer funds
from the specific RDT&E program account that paid his
salary, the Air Force failed to establish any need for these
funds.
Mr. Smith’s argument fails. The Air Force, like the
Department of the Army, “operates under the authority,
direction, and control of the Secretary of Defense.” 10
U.S.C. § 8011; see NFFE, 2015 WL 6143247, at *7 (citing
10 U.S.C. § 3011). And, similar to the Secretary of the
Army, the Secretary of the Air Force is responsible for
“the effective and timely implementation of policy, pro-
gram, and budget decisions and instructions of the Presi-

-- 4 of 6 --

SMITH v. AIR FORCE 5
dent or the Secretary of Defense relating to the functions
of the Department of the Air Force.” 10 U.S.C.
§ 8013(c)(3); see NFFE, 2015 WL 6143247, at *7 (citing 10
U.S.C. § 3013(c)(3)). Thus, as explained in NFFE, it was
reasonable for the DOD to consider its budget holistically
when faced with sequestration, rather than isolating
components—or, as here, accounts—of a military depart-
ment. 2015 WL 6143247, at *7.
Mr. Smith’s argument that the Air Force neither re-
programmed nor requested transfer of funds similarly
fails. First, as the Board explained, the DOD did submit
a request to Congress to reprogram funds—a request that
Congress approved. The fact that the DOD ultimately did
not need to reprogram funds out of the specific program
that paid Mr. Smith’s salary does not matter here. In
Einboden, we held that a military department organized
under the DOD is not required to show actual repro-
gramming of funds saved by the furlough in order to prove
that the “efficiency of the service” standard is met. 802
F.3d at 1325. Rather, we explained that we “give wide
berth to agency decisions as to what type of adverse
action is necessary to ‘promote the efficiency of the ser-
vice,’ provided that the agency’s decision bears some
nexus to the reason for the adverse action.” Id. at 1325–
26. Here, as in Einboden, that nexus requirement is met.
The DOD was faced with an agency-wide funding short-
fall. As part of the measures to adapt to this shortfall, the
DOD implemented agency-wide furloughs of civilian
employees with only limited exceptions, which the DOD
estimated would save it about $2 billion. S.A. 2.
Mr. Smith has not shown that the Air Force’s decision
to furlough him was unreasonable. He argues this deci-
sion was unreasonable because it was based on a concern
for fairness and equity, not because the RDT&E program
lacked funds. Specifically, he alleges that Air Force
commanders testified that they did not want to furlough
employees paid with Operations and Maintenance funds
while employees paid with RDT&E program funds were

-- 5 of 6 --

SMITH v. AIR FORCE 6
still able to work. In order to meet the “efficiency of the
service” standard, an agency must show that it applied its
determination as to which employees to furlough in a fair
and even manner in addition to showing that the furlough
was a reasonable management solution to the financial
restriction placed on it. NFFE, 2015 WL 6143247, at *4.
As the Board recognized, the Air Force offered evidence
that it applied the furloughs uniformly to all civilian
employees, with only a limited set of exemptions. S.A. 5.
The Air Force commanders’ testimony supports the
Board’s finding.
Finally, Mr. Smith argues that the Air Force failed
to include relevant documents in the administrative
record and that the Board erred in denying his motion to
compel responses to some of his discovery requests.
“Procedural matters relative to discovery and evidentiary
issues fall within the sound discretion of the board and its
officials.” Curtin v. Office of Personnel 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. Mr. Smith does not show how
the Board’s denial of his motion to compel certain docu-
ments and information resulted in a clear and harmful
abuse of discretion. And we discern no clear or harmful
abuse of discretion on our own review of the record. We
have considered Mr. Smith’s remaining arguments and
they are without merit.
CONCLUSION
For the foregoing reasons, the judgment of the Board
is affirmed.
AFFIRMED
COSTS
No costs.

-- 6 of 6 --