NOTE: This disposition is nonprecedential.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Note: This disposition is nonprecedential.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
2007-3135 7

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.