                      NOTE: This disposition is nonprecedential.


United States Court of Appeals for the Federal Circuit
                                      2008-3071

                                  ALTON L. WHITE,

                                                            Petitioner,

                                          v.

                           DEPARTMENT OF THE ARMY,

                                                            Respondent.

      Alton L. White, of College Park, Georgia, pro se.

      Kenneth S. Kessler, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for respondent. With him on
the brief were Jeffrey S. Bucholtz, Acting Assistant Attorney General; Jeanne E.
Davidson, Director; and Donald Kinner, Assistant Director.

Appealed from: Merit Systems Protection Board
                      NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit

                                      2008-3071


                                  ALTON L. WHITE,

                                                            Petitioner,

                                           v.

                           DEPARTMENT OF THE ARMY,

                                                            Respondent.


   Petition for review of the Merit Systems Protection Board in AT0752050119-C-3.

                            _________________________

                                DECIDED: June 6, 2008
                            _________________________


Before SCHALL and PROST, Circuit Judges, and WARD, District Judge. *

PER CURIAM.

                                      DECISION

      Alton L. White petitions for review of the final decision of the Merit Systems

Protection Board (“Board”) that found the Department of the Army in compliance with

the Board’s prior decision that reversed Mr. White’s removal for failure to maintain his

membership in the Army reserves—a condition of his civilian employment with the

Army. White v. Dep’t of the Army, No. AT-0752-05-0119-C-3 (M.S.P.B. Sept. 21, 2007).

We affirm.


      *
             Honorable T. John Ward, District Judge, United States District Court for
the Eastern District of Texas, sitting by designation.
                                      DISCUSSION

                                            I.

         Mr. White was appointed to a position as a Logistics Management Specialist with

the Army on April 23, 2000. That position required him to maintain both (1) membership

in the Selective Reserve and (2) a valid security clearance. On September 3, 2003, Mr.

White was reassigned from the Selective Reserve to the Retired Reserve because he

was twice passed over for promotion.         His transfer to the Retired Reserve was

completed on July 15, 2004. Subsequently, the Army determined that Mr. White did not

meet all of the requirements for the position of Logistics Management Specialist

because of his transfer to the Retired Reserve, and it removed him from that position

effective October 15, 2004. Mr. White appealed his removal to the Board.

         While his appeal was pending before the Board, the Army determined that he

should have been promoted and that he was improperly transferred from the Selective

Reserve to the Retired Reserve. As a consequence of this decision, the administrative

judge (“AJ”) to whom Mr. White’s appeal was assigned determined that the reason for

the Army’s removal action was no longer valid. White v. Dep’t of the Army, No. AT-

0752-05-0119-C-3, slip op. at 4–5 (M.S.P.B. Sep. 13, 2005) (White I). The AJ ordered

the Army to do two things: (1) retroactively restore Mr. White to employment effective

October 15, 2004, and (2) pay Mr. White “the appropriate amount of back pay.” Id. at 5.

The AJ’s decision became final when neither party filed a petition for review with the

Board.

         Thereafter, the Army learned that Mr. White’s security clearance had been

suspended.      Thus, while Mr. White was a member of the Selective Reserve and




2008-3071                                   2
satisfied that condition for the position of Logistics Management Specialist, he no longer

satisfied the requirement that he have a valid security clearance. The record reflects

that Mr. White’s security clearance was suspended prior to his removal in October of

2004. Accordingly, the Army retroactively restored Mr. White to the Army’s rolls of

employees effective October 15, 2004, but it immediately placed him in a non-duty, non-

pay status pending the outcome of an investigation into his security clearance. The

Army also denied his claim for back pay because he was not “ready, willing, and able”

to perform the duties of his previous position. See 5 C.F.R. § 550.805(c)(1).

                                            II.

       On April 6, 2006, Mr. White filed a Petition for Enforcement of the AJ’s order.

The AJ determined that the Army was in compliance with the earlier order even though

it had placed Mr. White in a non-duty, non-pay status. White v. Dep’t of the Army, No.

AT-0752-05-0119-C-3, slip op. at 8 (M.S.P.B. Aug. 3, 2006) (White II).           The AJ

reasoned 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. In other words, even if Mr.

White had not been the subject of a removal action, he would have been placed in a

non-duty, non-pay status because of the suspension of his security clearance. The AJ

also agreed that the Army properly calculated Mr. White’s back pay based on the

requirements of 5 C.F.R. § 550.805(c)(1), 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.” Id. at 7.

       The Board denied Mr. White’s petition for review, and an appeal to this court

ensued. White v. Dep’t of the Army, No. 2007-3135 (Fed. Cir. Oct. 5, 2007) (White IV).




2008-3071                                   3
Prior to our consideration of his appeal, Mr. White’s security clearance was reinstated

effective September 20, 2006. In a letter dated October 30, 2006, the Army offered to

return him to pay status in his former position effective September 20, 2006. Id., slip op.

at 3–4. The Army informed Mr. White, however, that his former position had been

relocated from Ft. Gillem, Georgia, to Birmingham, Alabama as of December 12, 2004.

Id. at 4. On November 2, 2006, Mr. White informed the Army that he was unwilling to

relocate, and he was subsequently removed effective January 5, 2007. Id.

      On appeal to this court, Mr. White argued (1) that the Army violated the AJ’s

order in White I by temporarily placing him in a non-duty, non-pay status; (2) that he

was entitled to back pay calculated from his removal on October 1, 2004; and (3) that

his position was not properly relocated to Birmingham. We rejected the first contention

because “the undisputed evidence of record [was] that Mr. 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.” Id. at 5. With

respect to the second argument, we determined that the AJ erred in concluding that Mr.

White was 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)(1). Id. That provision,

we held, only applied where an employee is unable to work because of “an

incapacitating illness or injury.” Id. at 6. Nevertheless, we concluded that Mr. White

was not eligible to receive back pay under 5 C.F.R. § 550.805(c)(2) because he was

“unavailable for the performance of his . . . duties”—i.e., because he did not possess a

valid security clearance. Id. Finally, we declined to consider Mr. White’s arguments

relating to the relocation of his position to Birmingham, since those arguments were the




2008-3071                                   4
subject of a separate Petition for Enforcement that was then pending before the Board.

Id. at 6–7.

                                           III.

       On February 2, 2007, Mr. White filed a second Petition for Enforcement of the

order in White I. Specifically, he argued that the Army did not, in offering him the

position in Birmingham, restore him to the status quo ante. He also argued that the

Army’s transfer of his position was improper because the Army was required to notify—

but did not notify—his union of the relocation so that the relocation could be negotiated.

Finally, Mr. White contended that he was entitled to back pay for the period of

September 20, 2006, to January 5, 2007, because he was “ready, willing, and able” to

perform the functions of his position during that time period and because he would have

done so had his position not been relocated.

       The AJ issued a decision on May 8, 2007, concluding that the Army was in

compliance with the order White I. The AJ determined that Mr. White was, in fact,

returned to the status quo ante because the Army returned him to his former position,

which had been moved for reasons unrelated to his removal. White v. Dep’t of the

Army, No. AT-0752-05-0119-C-3, slip op. at 5 (M.S.P.B. May 8, 2007) (White III). The

AJ also determined that the alleged failure of the Army to provide notice to Mr. White’s

union was “not a basis for voiding the relocation of the position in this action.” Id.

Finally, the AJ denied Mr. White’s claims for back pay, noting that he was only in a non-

pay status for the period of November 3, 2006, to January 5, 2007, and that during that

period, he was not “ready or willing to report to work in his former position” because he

had refused to report for work in Birmingham. Id. at 5–6. Mr. White petitioned for Board




2008-3071                                   5
review of the AJ’s decision, which was denied on September 21, 2007. The AJ’s initial

decision thereby became the final decision of the Board. We have jurisdiction over Mr.

White’s appeal pursuant to 28 U.S.C. § 1295(a)(9).

                                            IV.

       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).

       On appeal, Mr. White essentially makes the same three arguments that he raised

before the Board in his second Petition for Enforcement. He contends (1) that the Army

failed to restore him to the status quo ante by offering him his former position at a

different duty location, (2) that the Army’s procedures for changing his duty station were

improper because it failed to provide timely notice of the relocation to him and his union

and (3) that the Army owes him “back pay and all benefits from approximately

December 2004 until 5 January 2007.” We have considered Mr. White’s arguments, but

we conclude that the Board’s decision is supported by substantial evidence and is

otherwise in accordance with the law.

       In determining whether an agency has complied with a restoration order, the

Board must determine whether the agency has placed the employee “as nearly as

possible in the status quo ante,” Kerr v. Nat’l Endowment for the Arts, 726 F.2d 730,

733 (Fed.Cir.1984), which requires “restoration of the situation, as nearly as possible, to

that which would have obtained but for” the agency’s wrongful action, id. (citing Phelps




2008-3071                                    6
Dodge Corp. v. Nat’l Labor Relations Bd., 313 U.S. 177 (1941)). Here, substantial

evidence supports the decision of the Board that Mr. White’s position as a Logistics

Management Specialist was moved to Birmingham for reasons unrelated to Mr. White’s

removal. White III, slip op. at 5. The AJ determined that the relocation occurred in 2004

as part of a nationwide transition of programs within the U.S. Army Reserve Command.

Even if Mr. White had never been removed, his position would have been relocated to

Birmingham. Thus, the Board did not err in concluding that the Army had restored Mr.

White to the status quo ante by offering him his former position, despite the intervening

change in that position’s geographic location. See Grant v. Dep’t of Transp., 833 F.2d

1023, 1987 WL 38745 (Fed. Cir. 1987).

       Mr. White’s arguments that the relocation was procedurally improper also lack

merit. The Army was not required to notify Mr. White of the relocation in 2004, as it is

undisputed that he was not eligible to resume his position until his security clearance

was reinstated in September of 2006.        In other words, at the time the position of

Logistics Management Specialist was relocated to Birmingham, Mr. White was not

employed in that position.    Therefore, the Army had no duty to notify him that the

position was being moved.       Further, we do not interpret the collective bargaining

agreement negotiated between Mr. White’s union and the Army as requiring the Army to

provide notice of job relocation to the union independent of whether there is an affected

employee who is entitled to notice. 1



       1
                Although Mr. White has not identified a particular provision of the
collective bargaining agreement that he contends was violated by the alleged lack of
notice provided to his union, we gather that he relies upon ARTICLE 12, which provides:
“Prior to official notification of employees and at the earliest practicable date, the Union
will be notified of any pending . . . transfer of function affecting bargaining unit


2008-3071                                    7
       Finally, we conclude that Mr. White is not entitled to any back pay. Our prior

opinion held that “[Mr.] White is not entitled to back pay for the period between October

15, 2004 and the time that his security clearance was restored [on September 20,

2006].” White IV, slip op. at 5. As far as the remaining period of time at issue is

concerned, Mr. White was only placed in a non-pay status from November 3, 2006, the

day after he declined to relocate, to January 5, 2007, the date of his removal. The AJ

concluded that Mr. White was not entitled to back pay for this period of time because

“his actions demonstrated that he was not ready or willing,” under 5 C.F.R.

§ 550.805(c)(1), “to report to work in his former position.” White III, slip op. at 6. We

conclude that Mr. White is not entitled to back pay from November 3, 2006, to January

5, 2007, for a different reason.

       Section 550.805(c)(1), upon which the AJ relied, is part of 5 C.F.R. § 550.805(c),

a regulation which sets forth what time shall not be included in calculating an

employee’s back pay, where the employee is otherwise entitled to back pay. In this

case, section 550.805(c) did not come into play, however. Back pay is only available to

employees that have been “affected by an unjustified or unwarranted personnel action.”

5 U.S.C. § 5596(b)(1); see also 5 C.F.R. § 550.805(a). Here, Mr. White was not entitled

to back pay in the first instance. He refused to relocate to his new duty station in

Birmingham, and neither the Army’s subsequent placement of him in absent-without-

leave status on November 3, 2006, nor its ultimate removal of him on January 5, 2007,




employees.” We express no opinion on whether the relocation of Mr. White’s then-
former position as Logistics Management Specialist was a “transfer of function” under
the agreement.


2008-3071                                  8
have been shown to be “unjustified or unwarranted.” The predicate for entitlement to

back pay thus is lacking.

       Because the Board’s decision to deny Mr. White’s second Petition for

Enforcement is supported by substantial evidence and is otherwise in accordance with

law, it is affirmed.




2008-3071                                9
