NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3135
ALTON L. WHITE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
Christopher D. Vaughn, Melville Johnson, P.C., of Atlanta, Georgia, for petitioner.
Tara K. Hogan, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, for respondent. On the brief were
Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, and Todd M.
Hughes, Assistant Director. Of counsel on the brief was John W. Grimes, Office of the
Staff Judge Advocate, United States Department of the Army, of Birmingham, Alabama
Appealed from: United States Merit Systems Protection Board
Note: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-3135
ALTON L. WHITE,
Petitioner,
v.
DEPARTMENT OF THE ARMY,
Respondent.
____________________________
DECIDED: October 5, 2007
____________________________
Before SCHALL, Circuit Judge, CLEVENGER, Senior Circuit Judge, and MOORE,
Circuit Judge.
MOORE, Circuit Judge.
Alton White appeals the final decision of the Merit System Protection Board
(Board) that denied White’s petition for enforcement of a prior Board order. White v.
Dep’t of the Army (White II), No. AT00752050119-C-2 (M.S.P.B. Aug. 3, 2006) (finding
Agency was in compliance with order in White v. Dep’t of the Army (White I), No.
AT0752050119-I-2 (M.S.P.B. Sep. 13, 2005)). We affirm.
BACKGROUND
White was appointed to a position as a Logistics Management Specialist with the
Army on April 23, 2000. That position required that White maintain membership in the
Selective Reserve and that he have a valid security clearance. Apparently, on
September 3, 2003, the U.S. Army Reserve Personnel Command issued an order
indicating that White was reassigned from active-duty reserve status to the Retired
Reserves because he was twice passed over for promotion. White was released from
active duty and transferred to the Retired Reserves on July 15, 2004. On August 21,
2004 the Army determined that White did not meet all of the requirements for the
position of Logistics Management Specialist because of his transfer to the retired
reserves and proposed his removal for failure to maintain a basic condition of
employment. His removal became effective on October 15, 2004. White appealed that
decision to the Board.
White also contested the Army’s refusal to promote him. While the appeal of
White’s October 15, 2004 removal was pending before the Board, the Army determined
that he should have been promoted and that he was improperly transferred from the
active to the retired reserves. As a consequence of this agency decision, the
Administrative Judge (AJ) determined that the reason for the Army’s removal action was
no longer valid and, therefore, the action was reversed. White I, No. AT0752050119-I-2
at 4-5. Accordingly the AJ ordered the Army to do two things: (1) retroactively restore
White effective October 15, 2004, and (2) pay White “the appropriate amount of back
pay.” Id. at 5. The AJ’s decision became final when neither party filed a petition for
review to the Board.
During the course of White’s Board appeal related to his October 15, 2004
removal, the Army learned that White’s security clearance had been suspended. Thus,
while White was a member of the Selected Reserves and satisfied that condition for the
position of Logistics Management Specialist, he no longer satisfied the requirement that
2007-3135 2
he have a valid security clearance. There is evidence in the record that his security
clearance was suspended effective December 4, 2003, although White continued to
work his position until his removal in October of 2004. 1 Therefore, the Army
retroactively restored White to the Army’s rolls of employees effective October 15, 2004,
but immediately placed him in a non-duty, non-pay status pending the outcome of the
investigation into his security clearance. The Army also denied White’s claim for back
pay because he was not “ready, willing, and able” to perform the duties of his previous
position.
White filed a petition for enforcement of the AJ’s order on April 6, 2006. The AJ
found that the Army was in compliance with the earlier order even though the Army had
placed White in a non-duty, non-pay status. White II, No. AT00752050119-C-2 at 8.
The AJ’s decision rested primarily on the notion that a restored employee is not entitled
to be placed in a better position than he would have been in if he had not been
removed. Id. at 3. The AJ also agreed that the Army properly calculated White’s back
pay based on the requirement in 5 C.F.R. § 550.805(c), which provides back pay cannot
include pay for any periods during which the restored employee was not “ready, willing,
and able to perform his or her duties.” White II, AT00752050119-C-2 at 7.
A number of things have occurred since the AJ’s August 3, 2006 decision. First,
White’s security clearance was restored effective September 20, 2006. Second, on
October 30, 2006, the Army issued a memorandum to White stating that because his
1
In her decision on White’s petition for enforcement, the AJ found that there
was a dispute concerning the effective date of the revocation of White’s security
clearance. White II, No. AT00752050119-C-2 at 5 n.2. The AJ found, however, that
she did not need to resolve that question because his security clearance was invalid
from prior to his removal until the date of her decision on White’s petition for
enforcement. Id.
2007-3135 3
security clearance was restored he could return to pay status in his former position
effective September 20, 2006. This memorandum also informed White that his former
position had been relocated from Ft. Gillem, Georgia to Birmingham, Alabama. White
declined the change in duty station. Thus, the Army removed White effective January 5,
2007.
On January 22, 2007, the Board denied White’s petition for reconsideration of the
AJ’s decision in White II. This appeal followed. We have jurisdiction pursuant to 28
U.S.C. § 1295(a)(9).
DISCUSSION
Our jurisdiction to review Board decisions is limited by statute. We must affirm a
Board decision unless we find that it is “(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).
White raises three issues in his appeal to this court. First, White contends that
the Army was required to restore him to his position as a Logistics Management
Specialist; placing him on non-duty, non-pay status, according to White, violated the
AJ’s order in White I. Second, White contends that he is entitled to back pay calculated
from October 15, 2004. Third, White contends that his position was not properly moved
to Birmingham, Alabama.
I.
We reject White’s contention that the Army was required to place him back in his
previous position despite his lack of a valid security clearance. White does not contest
2007-3135 4
that the AJ’s decision with respect to his restoration in White II was improper on the
merits. Rather, White contends that his petition for enforcement must be granted
because he currently possesses the requisite security clearance to be returned to his
position. White relies on the letter he received on September 28, 2006 informing him
that his security clearance had been restored. See Petitioner’s Br. at 14.
The September 28, 2006 letter is not relevant to whether the AJ’s decision to
deny White’s petition for enforcement is supported by substantial evidence or otherwise
in accordance with the law. The undisputed evidence of record is that White did not
satisfy all of the requirements for the position of Logistics Management Specialist
between October 15, 2004 and August 3, 2006, the date the AJ rendered her decision.
White does not once contend that the agency should have restored him to the Logistics
Management Specialist position without a valid security clearance; what White contends
is that he should now be restored retroactive to October 15, 2004. That White might
now possess the appropriate security clearance, however, is irrelevant to whether the
AJ’s decision was proper when it was rendered.
II.
White also contends that the AJ erred in denying his claim for back pay. Once
again, White relies primarily on the September 28, 2006 letter, which he argues entitles
him to back pay. The Army contends that White is not eligible to receive back pay
because he was “not ready, willing, and able to perform his . . . duties” as required by 5
C.F.R. § 550.805(c). Although we believe that both the Board and Army have misread
§ 550.805(c), we agree that White is not entitled to back pay for the period between
October 15, 2004 and the time that his security clearance was restored. White was not
2007-3135 5
entitled to back pay for this period not because he was not “ready, willing, and able to
perform his duties,” but because he was “unavailable” to perform his duties. Id.
The applicable back pay regulation, 5 C.F.R. § 550.805(c) provides:
(c) Except as provided in paragraph (d) of this section, in computing the
amount of back pay under section 5596 of title 5, United States Code, and
this subpart, an agency may not include--
(1) Any period during which an employee was not ready, willing,
and able to perform his or her duties because of an incapacitating
illness or injury; or
(2) Any period during which an employee was unavailable for the
performance of his or her duties for reasons other than those
related to, or caused by, the unjustified or unwarranted personnel
action.
Id. (emphases added).
The AJ based her decision on the “ready, willing, and able” provision of
§ 550.805(c)(1). This section, however, prohibits back pay during periods in which an
employee is unable to work because of “an incapacitating illness or injury.” Nothing in
the record shows that White suffered from an incapacitating illness or injury that would
prohibit him from receiving back pay under § 550.805(c)(1). The undisputed facts
demonstrate, however, that for the period between October 15, 2004 and the date
White’s security clearance was restored White was “unavailable for the performance of
his . . . duties” because he did not satisfy a necessary condition to perform his duties,
i.e., possess a valid security clearance. Therefore, although the AJ appears to have
applied the wrong provision in § 550.805(c), that error was harmless.
III.
White contends that the Army improperly relocated his position to Birmingham,
Alabama in violation of a collective bargaining agreement. According to White, the
2007-3135 6
Army’s offer to restore him to a position in Alabama is also not in compliance with the
AJ’s order in White I. The Army contends that this issue is not properly before us and
any consideration of it would be premature. We agree with the Army.
It would be inappropriate to consider any issues related to White’s arguments
related to the Army’s relocation of his position to Birmingham, Alabama or his
subsequent removal for refusal to relocate. These events all occurred after the August
3, 2006 Initial Decision in White II and are not properly before us in this appeal.
Moreover, White filed another petition for enforcement with the Board directed to these
precise questions. It appears that that petition is currently before the Board. See White
v. Dep’t of the Army, No. AT0752050119-C-3 (M.S.P.B. May 8, 2007).
CONCLUSION
Because the AJ’s decision to deny White’s petition for enforcement is supported
by substantial evidence and is otherwise in accordance with the law, we affirm.
COSTS
Each party shall bear its own costs.
2007-3135 7