                     NOTE: This disposition is nonprecedential.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                      Note: This disposition is nonprecedential.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
