                 NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
                   is not citable as precedent. It is a public record.

 United States Court of Appeals for the Federal Circuit

                                       05-3362


                                   LAURA V. KING,

                                                     Petitioner,
                                          v.


                           DEPARTMENT OF THE NAVY,

                                                     Respondent.

                          __________________________

                          DECIDED: February 10, 2006
                          __________________________

Before LOURIE, GAJARSA, and LINN, Circuit Judges.

PER CURIAM.

      Laura V. King (“King”) appeals from the final decision of the Merit Systems

Protection Board (“Board”) denying her petition for enforcement. The Board determined

that the Department of the Navy (“Agency”) properly reconstructed its selection process

for GS-11 security specialist positions, that the Agency properly decided that any

entitlement to back pay would begin on September 10, 2001, and that the Agency

properly refused to award King back pay because she was not ready, willing, and able

to return to work. See King v. Dep’t of the Navy, SE-0353-01-0054-X-1 (M.S.P.B. Sept.

1, 2005) (“Back Pay Decision”); King v. Dep’t of the Navy, SE-0353-01-0054-X-1
(M.S.P.B. May 18, 2005) (“Reconstruction Decision”). Because the Board’s decisions

are in accordance with law and supported by substantial evidence, we affirm.

                                   I. BACKGROUND

       This appeal arises out a petition for enforcement of a Board decision requiring

the Agency to afford King priority consideration for a GS-11 security officer or equivalent

position, retroactive to June 7, 2000, and to give King priority for an equivalent position

elsewhere in the Agency if King could not be placed in her former commuting area.

Reconstruction Decision, slip. op. at 2. See also King v. Dep’t of the Navy, SE-0353-01-

0054-B-1 (M.S.P.B. Oct. 21, 2002), aff’d, 54 Fed. Appx. 294 (Fed. Cir. 2003). King

complained that the Agency had failed to act as directed by the Board. Reconstruction

Decision, slip. op. at 2.   The Administrative Judge (“AJ”) agreed and ordered the

Agency to reconstruct selections for GS-11 security specialist positions in the Puget

Sound Naval Shipyard commuting area for the period between June 7, 2000 and

June 6, 2002; to give King reemployment priority list (“RPL”) consideration; to offer King

placement in a position to which she was entitled; and to afford King priority for

positions Agency-wide if these actions did not result in an offer. Id. at 3. The Agency

stated that it complied with the order; King disagreed. Id. The matter went to the full

Board. Id.

       As to position selection, the Board held that the Agency properly reconstructed

its selection process, gave King RPL consideration, and offered King a position as a

GS-11 security specialist, effective September 10, 2001 in her commuting area. Id. at

4-5. The Board rejected King’s argument that the Office of Personnel Management

(“OPM”) regulation at 5 C.F.R. § 330.201(a) required the Agency to give King priority




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over Department of Defense (“DoD”) employees for positions which were available

earlier in the period, reasoning that DoD employees were internal candidates over

whom King need not have priority under the regulation and that the DoD RPL Guide

provided that DoD employees be considered before RPL candidates. Id. at 5-6. The

Board also rejected King’s argument that 5 C.F.R.§ 301(b) required the Agency to give

King priority for positions elsewhere in the Agency, reasoning that the Agency

discharged its duty by offering King a position in her commuting area during that period.

Id. at 6. Finally, the Board found that the Agency could require that King obtain a

security clearance and could preclude her from reporting for duty for failure to complete

the SF-86 Questionnaire for National Security Positions (“Questionnaire”). Id. at 7-10.

       As to back pay, the Board held that the Agency properly determined that any

entitlement to it began on September 10, 2001, because the first GS-11 security

specialist or equivalent position that became available during the relevant period and to

which King was entitled based on her RPL status was filled on that date. Back Pay

Decision, slip. op. at 3-4. The Board reasoned that King was not entitled to back pay as

of June 7, 2000, because she was not entitled to a position as of that date. Id. The

Board also found that because of King’s refusal to complete the Questionnaire and her

inability to obtain a security clearance, the Agency properly found that King was not

ready, willing, and able to return to work on September 10, 2001. Id. at 4-6. The Board

explained that because King’s lack of a security clearance was unrelated to the violation

of her restoration rights, she was not entitled to back pay. Id. at 6.

       King timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).




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                                   II. DISCUSSION

                                A. Standard of Review

      This court must affirm the Board’s decision unless 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); Chase-Baker v. Dep’t of Justice, 198 F.3d

843, 845 (Fed. Cir. 1999). The petitioner bears the burden of establishing reversible

error in the decision of an agency such as the Board. Harris v. Dep’t of Veterans

Affairs, 142 F.3d 1463, 1467 (Fed. Cir. 1998).

                                      B. Analysis

      On appeal, King makes three arguments: (1) that the Board’s decision is not in

accordance with law because the Agency improperly reconstructed its RPL selection

process under 5 C.F.R. § 330.201(a) by giving DoD candidates—whom she alleges are

in a different agency than the Department of the Navy—priority consideration over an

RPL candidate; (2) that the Board’s decision is not in accordance with law because the

Agency improperly followed the DoD RPL Guide (not 5 C.F.R. § 330.201(a)) and did not

consider her for a position until September 10, 2001, and that, accordingly, she is

entitled to back pay as of June 7, 2000, the date that the priority consideration period

began; and (3) that the Board’s finding that she was not ready, willing, and able to work

under 5 C.F.R. § 805(c), was unsupported by substantial evidence, because even

though she would not check “yes” or “no” in answer to questions on the Questionnaire,

she explained her answers in the “continuation” section, completed her application, and




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thus was entitled to require the Agency to forward her application to OPM and grant her

an interim security clearance.

       We affirm the Board’s decisions because they are in accordance with law and

supported by substantial evidence.

       First, we reject King’s argument that the Agency improperly reconstructed its

RPL selection process by giving DoD candidates priority consideration over King.

Under the applicable regulations, “[i]n filling vacancies, the agency must give RPL

registrants priority consideration over certain outside job applicants and, if it chooses,

also   may   consider   RPL      registrants   before   considering   internal   candidates.”

5 C.F.R.§ 330.201(a) (2005) (emphasis added). Thus, RPL consideration need not take

priority over “current, qualified employee[s]” that are “on an agency’s rolls.”           Id.

§ 330.205(c)(2) (emphasis added).        For purposes of subpart 330, “agency means

Executive agency as defined in 5 U.S.C. 105.”           5 C.F.R. § 330.201(b).   The statute

defines “Executive agency” to mean “executive department,” 5 U.S.C. § 105, and

identifies the DoD, but not the Department of the Navy, as an “executive department,”

id. § 101. Therefore, for the purposes of the OPM regulation, “agency” means the DoD

(not the Department of the Navy) and thus the Agency enjoyed discretion to follow the

DoD RPL Guide and to choose DoD candidates ahead of RPL candidates. The Board

thus acted in accordance with law in affirming the Agency’s decision to exclude

positions filled by employees who had been working for DoD from the list of positions for

which it was required to give King priority consideration according to the RPL.

       Second, we reject King’s argument that she is entitled to back pay as of

June 7, 2000, the date that the priority consideration period began. The primary basis




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for King’s challenge to the September 10, 2001 date is tied to her contention that the

Agency improperly reconstructed the RPL list by excluding positions that were filled by

DoD employees. In other words, King asserts that because she had priority over DoD

candidates, she should have been offered a position earlier than September 10, 2001.

However, we demonstrated supra that King was not legally entitled to priority over DoD

candidates and thus King’s argument must fail. King also argues that the Agency’s

search for positions available prior to September 10, 2001, was too narrow because (i)

the Agency erroneously considered the Puget Sound Naval Shipyard as her commuting

area and (ii) did not consider King for positions outside the Agency, e.g., elsewhere in

the DoD. These arguments are also without merit. The rule is that “[i]f the individual

cannot be placed in the former commuting area, he or she is entitled to priority

consideration    for   an    equivalent    position   elsewhere     in   the    agency.”

5 C.F.R. § 353.301(b). The Board found that King’s commuting area was the Puget

Sound Naval Shipyard commuting area.        Substantial evidence supports this finding

because King’s claim arises from a position she once held at the Puget Sound Naval

Shipyard. Because the Agency was able to place King in her former commuting area,

she is not entitled to priority consideration “elsewhere in the agency.” In her commuting

area, the first position to which King was entitled was posted on September 10, 2001.

The Board acted in accordance with law in affirming the Agency’s decision to make this

the start date for any back pay that might be owed to King.

      Finally, we reject King’s argument that the decision to deny her back pay was not

supported by substantial evidence and not in accordance with law. King cannot receive

back pay for, inter alia, any period during which an employee “was unavailable for the




05-3342                                    6
performance of his or her duties for reasons other than those related to, or caused by,

the unjustified or unwarranted personnel action.”       5 C.F.R. § 550.805(c).   King was

required to obtain a security clearance to begin work, but King refused to answer two

questions on the requisite Questionnaire. Although King provides many reasons why

she could not answer “yes” or “no,” the Agency has proffered sufficient evidence to

support the finding that King should have answered the questions and then explained

her answers in the continuation section of the Questionnaire—which the Agency had

instructed King to do. The Agency also submitted sufficient evidence to support the

finding that without complete answers to each question—which include a “yes” or “no”

response for each question requesting such a response—the Agency could not

complete in-processing, grant an interim security clearance, forward a security

clearance package to OPM for action, and allow her to report for duty. As a result,

substantial evidence supports the finding that King was unavailable to perform her

duties and that her unavailability was unrelated to the violation of her restoration rights.

King spends much of her briefs arguing that she believed that providing a “yes” or “no”

answer would constitute submitting a false statement and that she sought to avoid being

charged under 18 U.S.C. § 1001.        King cites Hathaway v. Department of Justice,

384 F.3d 1342 (Fed. Cir. 2004), as an example of what might happen to an individual

who answers questions untruthfully. We agree with King that she must answer the

Questionnaire truthfully; however, the Board found that a truthful response would have

constituted a “yes” or “no” answer along with an explanation in the continuation section.

Substantial evidence supports this finding. See Reconstruction Decision, slip. op. at 13

n.10 (“As observed by the Agency, the appellant could have answered the questions




05-3342                                      7
and then explained on the form the basis for her answer.”). We have considered King’s

other arguments and find them to be without merit. The other cases to which King cites

are not germane.

      For the foregoing reasons, we affirm the decision of the Board.




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