King v. Department of the Navy , 167 F. App'x 191 ( 2006 )

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
05-3342 5
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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