Dale v. Department of the Navy
705 F. App'x 990
| Fed. Cir. | 2017Background
- In 2013 sequestration under the Budget Control Act forced DoD to reduce spending; Secretary Hagel issued guidance prompting furloughs of most civilian DoD employees for up to 11 days (later reduced to 6 days).
- Richard C. Dale, a Navy Office of General Counsel attorney, received notice proposing a discontinuous furlough and then a decision ordering up to 11 days of furlough (ultimately 6). He appealed to the MSPB.
- The deciding official, Mary Wohlgemuth (NUWC Newport), reviewed responses, exempted 104 employees under DoD guidance, and determined Dale did not qualify for exemption.
- On appeal to the MSPB, Dale sought broad discovery and alleged (inter alia) improper ex parte communications, inadequate notice/due process, violation of 10 U.S.C. § 129 and other statutes/regulations, political motivation, and a violation of SECNAVINST 5430.25E concerning attorney personnel actions.
- The MSPB AJ denied most discovery requests, found the Navy proved a factual basis for the furloughs and that procedures and due process were satisfied, and held the Navy did not violate § 129 or SECNAVINST 5430.25E.
- The Federal Circuit affirmed, finding no legal error, no prejudicial procedural error, and that substantial evidence supports the Board’s findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of discovery | Dale sought broad discovery and alleged AJ abused discretion in limiting it | Navy produced responsive material; AJ properly limited discovery as not likely to lead to admissible evidence | No abuse of discretion; Dale failed to show prejudice |
| Ex parte communications with MSPB | Communications between Navy and Board were improper and addressed merits | Communications were procedural (managing volume) and not substantive | Communications were permissible; not improper ex parte |
| Due process / deciding official authority | Wohlgemuth lacked independent authority; decision was driven by DoD direction so Dale had no meaningful chance to affect outcome | Wohlgemuth had authority to exempt/reduce furloughs and did exercise discretion for many employees | Due process satisfied; official had sufficient authority to take or recommend action |
| Compliance with statutory/regulatory requirements (10 U.S.C. § 129, 5 C.F.R. § 752.404, SECNAVINST 5430.25E) | Furlough improperly constrained man-years, notice failed to state basis for selecting Dale, and SECNAVINST required General Counsel approval (no delegation) | Furlough was consistent with managing workload within available funds, selection-basis notice rule did not apply because whole competitive level was affected, and delegation was not prohibited by SECNAVINST | Substantial evidence supports that furlough complied with § 129; § 752.404(b)(2) inapplicable; no violation of SECNAVINST or reversible error |
Key Cases Cited
- Templeton v. Office of Personnel Management, 951 F.2d 338 (Fed. Cir.) (employees may obtain broad discovery but Board has discretion over scope)
- Curtin v. Office of Pers. Mgmt., 846 F.2d 1371 (Fed. Cir.) (procedural discovery and evidentiary matters fall within Board discretion)
- Jones v. Dep’t of Health & Human Servs., 834 F.3d 1361 (Fed. Cir.) (petitioner bears burden to show Board error)
- Whitmore v. Dep’t of Labor, 680 F.3d 1353 (Fed. Cir.) (appellant must show agency error prejudiced outcome)
- Calhoun v. Dep’t of the Army, 845 F.3d 1176 (Fed. Cir.) (deciding official need only have authority to take or recommend action for due process)