Unpublished Dispositionrobert L. Barbour, Petitioner, v. Department of Defense, Respondent, 824 F.2d 977 (Fed. Cir. 1987)

DECISION

The final decision of the Merit Systems Protection Board (board) dated August 8, 1986, denied a petition for enforcement filed by Robert L. Barbour (petitioner) seeking back pay. On the basis of the board's opinion, we affirm.

OPINION

The back pay claim arose as a result of an action for removal of petitioner from his position with the Department of Defense, Defense Logistics Agency (agency). When petitioner appealed the removal to the board, agency charges were withdrawn. Petitioner was reinstated with the agency on November 8, 1984. After his reinstatement, petitioner claimed entitlement to back pay in a petition for enforcement filed with the board. On December 17, 1985, the board dismissed the petition without prejudice and directed the agency to consider the dismissed petition as a claim for back pay solely for the period of August 17, 1984 through November 7, 1984, the only period for which the board found the record was not clear as to petitioner's fitness for duty. Back pay was to be computed and awarded if warranted under the back pay regulations.

Based on medical evidence of a non-occupational injury the agency determined that petitioner had not been "ready, willing and able" to perform his duties during the time period in question and was not entitled to back pay. See 5 U.S.C. § 5596; 5 C.F.R. Sec. 550.805(c) (1). On appeal, the board reviewed the evidence and sustained the agency's decision. The board's decision is supported by substantial evidence, in accordance with procedures required by law, rule and regulation, and not arbitrary, capricious, or an abuse of discretion. See 5 U.S.C. § 7703(c); Hayes v. Department of the Navy, 727 F.2d 1535, 1537 (Fed. Cir. 1984).