UNITED STATES OF AMERICA
 

MERIT SYSTEMS PROTECTION BOARD
 

DEVON HAUGHTON NORTHOVER
 

Appellant,
 

v.	 Docket No. AT-0752-10-0184-I-l 

DEPARTMENT OF DEFENSE,
 

Agency.
 

NORTHOVER RESPONSE TO SUPPLEMENTAL AGENCY NARRATIVE
 

REGARDING SCOPE OF REVIEW
 

Facts: 

Devon Northover was hired at Gunter AF Base on September 8, 2002 as a 

Computer Assisted Ordering Specialist (CAO), aka Commissary Management Specialist, 

a GS-5 non-sensitive position. On September 21, 2003 he was promoted in this career 

ladder position to a GS-7, and was never infonned that position was other than nonsensitive. l	 Northover's function is to monitor quantities of Commissary inventory 

[basically grocery items] maintaining adequate inventory using a hand held transmittal 

and CAO program on a computer, providing a database of suppliers and merchan~by 

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There is considerable dispute as to whether Northover's position was actually designa~ea noncritical sensitive or whether he was notified of that designation. DOD has suggested in i~initial

Agency Narrative Response inadvertent errors in listing the non-sensitivity designation on the 

GS-7 Position Description, and unknowing alterations to the position descriptions. For purposes 

of this Response limited to the scope of review it is asswned that the position was properly 

designated non-critical sensitive and that Northover was properly notified of such action, 

although no such concession is made for the evaluation ofthis adverse action. 

I 
categories. 2 Gunter AF Base utilizes a Defense Integrated Buying System, and Northover 

is not responsible for entries on the program, maintaining that program or altering matters 

in the program, any such changes or maintenance done at HQ. 

After being in that position approximately 4 years, Northover was asked to 

complete an SF 85P, Background investigation. A National Agency Check with Inquiries 

[NACI] was performed by Washington HQ Services and OPM, (according to the Notice 

of Proposed Demotion, para. 2) and was submitted in January, 2007 and closed in April 

2007. 3 The Washington Headquarters Service, Consolidated Adjudications Facility 

(WHS/CAF) issued a Statement of Reasons on May 27, 2009 informing Northover of 

their tentative unfavorable determination to "deny him eligibility for access to classified 

information and/or occupancy of a sensitive position." Northover was permitted to 

respond to certain questions regarding financial obligations, and requested an extension. 

An extension was granted, and Northover requested a second extension "due to helping 

his mother care for his terminally ill father in _ having to attend his brother's 

2 In the Civilian Performance Plan (Plan) for the CAO position, (Appellant Exh.1) the- main 

corporate objective is Inventory Control - i.e. "maintains perpetual inventory balance on hand, 

shelves and in back up by line item; evaluates stock levels of all CA categories... through a 

physical review of storage and display locations; maintains the CAO ·system with current 

accurate data to ensure optimal order quantities are calculated to sustain customer demand and 

prevent NIS condition; resolve discrepancies." Regarding Inventory Control, the Plan also 

provides that the employee "evaluates stock level of all CAO categories daily, monitors and 

adjusts calculated orders when insufficient or excessive quantities are projected on orders." The 

Plan also addresses Administrative and Customer service functions, and addresses 

Safety/Security solely "in order to maintain a safe and secure work environment for our patrons 

and employees." See also two Job Descriptions purportedly for the same position at Agency Tab 

4p and Agency Tab 4aa. 

3 In response to Interrogatory 11 propounded to the Agency, DECA acknowledges that ''NACI 

investigations are normally supposed to be submitted within 3-5 days of a person's 

hire."(Appellant Exhibit 2). 

2 
funeral in__and because of "the stress involved." Agency Tab 4k. That additional 

extension was denied. On or about March 6, 2009, the Deputy Chief. WHS/CAF issued a 

Letter to Northover denying his eligibility for access to classified information and/or 

occupancy of a sensitive position. 

On August 24, 2009, the Agency proposed Northover's demotion to the position 

of GS-II0 1-04 Store Associate due to his alleged loss of eligibility for access to 

classified information and/or occupancy of a sensitive position. After Northover 

submitted a Reply, DOD demoted him from his Management Specialist position to a 

Store Associate position GS-4, part-time, "based solely on Northover's inability to 

maintain eligibility to occupy a sensitive position," effective December 6, 2009. 

Northover did not hold, nor was he required to hold, a security clearance in order 

to occupy his Management Specialist position. In its Answer to Interrogatory 12, DECA 

acknowledged, "In his position as a CAO with the Agency, the Appellant did not work 

with classified information." (Appellant Exh. 1). 

In the position to which Northover was demoted, Store Associate, he has access to 

cash and non-cash transactions (checks, coupons, vouchers, food stamps, credit cards); 

which were previously not available to him as a CAO. The incumbent is to ensure 

adequate quantities ofproducts are maintained and there is stock rotation. He verifies and 

makes annotations to accountable documents, such as invoices, receipts, vouchers, data 

entry to computers, handheld devices and/or electronic systems. (Appellant Exh. 3 ­

Civilian Performance Plan for Store Associate position). Northover continues to "operate 

a computer terminal to maintain the CAO system with accurate data to ensure that 

3
 
optimal quantities are calculated and uses a frequency hand-held terminal to gather 

necessary inventory data.(Agency Tab 4a - Position description- Store Associate). By 

letter dated July 6, 2009, DCA HQ determined that Store Associate positions will have 

non-sensitive position determinations [no access to ADP/IT level II systems] (Agency 

Tab 4i). 4 

Argument 

The Merit Systems Protection Board [Board] has respectfully vacillated on the 

issue of whether it has the authority to review the merits of an agency determination 

where the removal is based on the denial of eligibility to an employee occupying a noncritical sensitive position that does not require a security clearance. However, in its last 

pronouncement on this matter, the current members of the Board [the present 

Chairman and Vice-Chairman having not yet weighed in on this issue] in Crumpler v. 

Dept. of Defense, 2009 MSPB 233, 2009 WL 5248887 (Dec. 18, 2009) reopened 

Crumpler's appeal, declaring: 

The Board's November 2,2009 decision marked a momentous change in the law. 

In the previous 21 years the Board has never interpreted [Dept. of Navy v.] 

Egan, [484 U.S. 518 (1988] as restricting Board access in an appeal brought 

by an employee who was not required to maintain a security clearance for 

access to classified information to hold this position. The Board's November 2, 

2009 decision thus announced a major limitation on "the basic procedural 

rights" of untold numbers of employees in the Department of Defense, 

Department of Homeland Security, and elsewhere whose work does not involve 

Thus, if there is any distinction in access to financial records or transactions, the Store 

Associate position provides access that the CAO position does not possess. 

4 

4 
access to classified information, but whose positions have been designated noncritical sensitive. 5 

Fonner Vice Chair and current Member Rose in Brown v. Dept. of Defense, 110 

MSPR 593 (2009), motion for remand pending in Federal Circuit, Dkt. No. 2009-3176, 

authored a cogent Separate Opinion, before then changing that Opinion in Crumpler, 

based on her very broad view of the governing principles under stare decisis, and before 

then agreeing to the Reopening there. That Opinion began with an analysis of the 

Supreme Court's ruling in Egan. Member Rose found Egan clearly distinguishable in that. 

Brown, a commissary contract monitor occupying a non-critical sensitive position, like 

Northover, was not required to have a security clearance nor had access to classified 

information. As Board member Rose pointed out in note 1, although the position held by 

the employee in Egan was also "non-critical-sensitive," the "Supreme Court's findings 

regarding the limited nature of the Board's review in that case were based on the 

requirement that the employee hold a security clearance, however, and as I noted above, 

on the government's need to protect the classified national security information to which 

the employee had access." Member Rose earlier referenced language from Egan 

regarding the Court's reference to "efforts to protect national security information by 

means of a classification system," Egan at 527; and to the "reasonable basis [it had 

found] for the view that an agency head who must bear the responsibility for the 

5 The Board thereafter permitted OPM and other amici the opportunity to express their views on 

this issue in a published Federal Register Notice. When the Crumpler case settled, the Board 

continued to invite amici briefs in Northover and Conyers, although the Northover case was not 

yet before it. AFGE submitted a Brief nonetheless, and at least 1 other amicus brief was filed by 

March 1. 

5 
protection of classified information committed to his custody should have the final say in 

deciding whether to repose his trust in an employee who has access to such information. 

Egan at 529." 

Thomas Egan occupied the position of "laborer leader" with the Department of the 

Navy. In this position, Egan worked on Trident submarines at the agency's Trident 

Naval Refit Facility in Bremerton, Washington. Egan, 484 U.S. at 521. At the time, the 

Trident was the Navy's premier nuclear submarine and was capable of carrying and 

launching nuclear weapons. The Trident played a "crucial part in our Nation's defense 

system." Id at 520. As a result of the Trident's direct and crucial role in national security, 

Egan was required to hold a security clearance in order to remain in his laborer leader 

position. Id at 522. The Agency denied Egan a security clearance following a 

background investigation and then removed Egan for failure to maintain a security 

clearance as required for his position. Id. The Supreme Court framed the question 

narrowly, asking whether the Board had statutory authority, "to review the substance of 

an underlying decision to deny or revoke a security clearance in the course of reviewing 

an adverse action." Id at 520. Citing "the Government's "compelling interest in 

withholding national security information from unauthorized persons in the course of 

executive business," the Court carved out a limited exception to the scope of the Board's 

review authority under Chapters 75 and 77 of Title V of the United States Code. Id at 

527. The Court reasoned that deference to the Executive was appropriate when access 

to classified information, which the Court equated with the formal grant of a security 

clearance, was at issue. Id at 529 {"...the protection of classified information must be 

6
 
committed to the broad discretion of the agency responsible, and this must include broad 

discretion to determine who may have access to it."). The Supreme Court repeatedly 

made it clear that access to classified infonnation was the primary consideration in 

limiting the Board's power to review the merits of an agency's decision to deny or revoke 

a security clearance. Id at 527-29. Thus, the Court did not address application of its 

holding to instances where access to classified infonnation was not present.6 

Note also Cole v. Young, 351 U.S. 356 (1956), cited in Egan, where the Supreme 

Court recognized that "national security" is defined as only those activities of the 

government directly concerned with protection of the nation from internal subversion or 

foreign aggression. The Supreme Court recognized: 

It is difficult to justify summary suspensions and unreviewable dismissals on 

loyalty grounds of employees who are not in sensitive positions and who are not 

situated where they can bring about any discernible adverse affects on the national 

security. In the absence of an immediate threat of harm to the national security, the 

normal dismissal procedures seem fully adequate and the justification for 

summary powers disappears. Indeed, in view of the stigma attached to persons 

dismissed on loyalty grounds, the need for procedural safeguards seems even 

greater than in other cases, and we will not lightly assume that Congress 

intended to take away those safeguards in the absence of some overriding 

necessity such as exists in the case of employees handling defense secrets. 351 

U.S. at 546. 

6 Moreover, Congress carefully provided an alternate procedure to be used when the 

Government detenmnes that an employee's removal is "necessary or advisable in the interests of 

national security." 5 U.S.c. 7532. Even under these more streamlined procedures where there are 

imminent national security risks, Congress guaranteed every discharged employee a hearing into 

the "cause" for his removal, even if the hearing there was confined to that within the Agency. 

Here, where the action is brought pursuant to 5 U.S.C. 7511-7514, an employee is entitled to a 

hearing before the Board. 5 U.S.C. 7701(a)(l), and the employee's discharge is to be sustained 

by the Board "only if supported by a preponderance of the evidence," 5 U.S.C. 7701(c)(I)(B, and 

"only for such cause as will promote the efficiency of the service." 5 U.S.c. 75 13(a). An 

employee under these circumstances here must be entitled to a hearing to challenge false 

allegations raised or improper characterizations in an investigation, or that the reasons lack any 

rational nexus to retention ofthat eligibility. 

7
 
Furthermore, Northover has a property and liberty interest in retention of his civil service 

position, enforced by a procedural mechanism designated for the determination of cause 

and an Agency burden ofproof. Board ofRegents v. Roth, 408 U.S. 564 (1972); Arnett v. 

Kennedy, 416 U.S. 134 (1974). Due process under the CSRA requires a full evidentiary 

post-termination hearing as provided in 5 U.S.c. 7513 and 770l(a)(1). Cleveland Board 

of Education v. Loudermill, 105 S. Ct. 1487 (1985); Arnett v. Kennedy, supra 

As Member Rose in Brown elaborated further, "the general rule is that the Board's 

review of the merits of an adverse action includes a review of any determination 

underlying that action." For example, she maintained that the Board has held that it has 

the authority to review the decision of an agency credentials committee to revoke an 

employee's clinical privileges, when that revocation was the basis of the employee's 

removal. Siegert v. Dept. of Army, 38 MSPR 684 (1988); and the authority to review the 

validity of a medical determination underlying the removal of an air traffic control 

specialist, Crosby v. FAA, 30 MSPR 16 (1986); positions, unlike that held by Northover, 

clearly having the potential to impact national security. Member Rose also cited Adams 

v. Department of the Army, 105 M.S.P.R. 50, 2007 MSPB 57 (2007), affd 273 F.App'x 

947 (Fed. Cir. 2008). 

In Adams, the Board addressed the application of Egan to an adverse action appeal 

where the possession of a security clearance, and hence access to classified information, 

was not a factor in an agency's decision to remove an employee from service based on 

the agency's revocation of his access to a computer system containing sensitive 

8 
information. In Adams, the Agency revoked Adams' access to a computer system used 

in his position as a human resources assistant after receiving the results of a background 

investigation conducted by OPM. As here, the Agency cited Adams' financial situation 

as the basis for its revocation. Id at 52. The Agency then removed Adams from service 

based on the revocation of his computer access. When Adams appealed to the Board, the 

Agency expressly argued that Egan precluded the Board from reviewing the merits of its 

decision to deny Adams computer access. Id at 54-55. In rejecting the Agency's 

argument, the Board first reiterated that when an Agency charge against an employee, 

"consists of the employing agency's withdrawal or revocation of its certification or other 

approval of the employee's fitness or other qualification to hold his position, the Board's 

authority generally extends to a review of the merits of that withdrawal or revocation." 

Id at 55. Next, the Board dispensed with the Agency's argument that Egan applied, 

finding that the national· security considerations that motivated Egan to be absent from 

Adams' case. Even though the Agency characterized the information in its computer 

system as "sensitive," the Board rejected the Agency's argument because the information 

contained in the Agency's system was not classified and because Adams was not required 

to hold a security clearance in order to occupy his position. Id. 

. Member Rose also cited Jacobs v. Dept. of the Army, 62 MSPR 688 (1994), the 

Board finding that it had the authority to review a security guard's qualification from the 

Chemical Reliability Program based on his verbal assault On a security officer; and 

Dodson v. Dept. of the Army, 35 MSPR 562 (1987), the Board holding it had the 

authority to review the employee's disqualification under the Agency's Personnel 

9 
7 

Reliability Program based on allegedly negligent conduct. Member Rose noted further 

with respect to Brown's similar Commissary position that Agency officials regarded his 

responsibilities as sensitive because of the need to protect the store's inventory, and not 

for any national security reasons; and that any duties with respect to store security are 

similar to those of others entrusted with the responsibility of safeguarding agency 

property, where the Board routinely reviews agency determinations underlying removals 

of such employees. Moreover, Member Rose recognized that the only computer programs 

to which Brown had access related to the personnel program, pricing, billing, inventory 

and ordering, which access does not possess any threat to national security, again citing 

Adams. 7 

The Board should not apply Egan to limit its review of adverse action appeals 

arising from agency determinations on employee eligibility to occupy sensitive positions. 

To begin with, the Board should not expand Egan to cover sensitive position eligibility 

determinations because the Court in Egan relied on access to classified national security 

information and maintenance of a security clearance, governed by Executive Order 

10450, and its implementing regulations found in Part 732. Specifically, access to 

Chairman McPhie in his opposing Opinion asserted that "the Board's judgment as to whether 

the position involves access to classified infonnation or otherwise implicates national security is 

irrelevant." This is not a matter of the Board's judgment, but a manifest assessment of the plain 

facts before the Board whether maintenance of commissary grocery inventory is a matter of 

national security. Presumably, according to fonner Chairman McPhie, DOD can simply 

designate every civilian position without regard to actual national security implications as 

allegedly impacting national security, making every disqualification of a civilian employee 

virtually unreviewable. However, that ignores the E.O. 12968 addressing the truly recognized 

pertinent issue of Access to Classified Information, and the recognition therein that "the number 

of employees that each agency determines are eligible for access to classified information shall 

be kept to the minimum required for the conduct of agency functions." Sec. 2.1. 

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classified infonnation is controlled by Executive Order 12968. 60 Fed. Reg. 40245 

("This order establishes a uniform Federal personnel security program for employees 

who will be considered for initial or continued access to classified infonnation."). 

Executive Order 12968 sets forth, inter alia, the parameters governing when an employee 

should be granted access to classified infonnation, what constitutes classified 

information, and the procedures governing review of agency access determinations. 

It is the possession of a security clearance and the attendant access to classified 

information that implicates national security. It is the definite relationship between a 

security clearance, classified information and national security that formed the basis for 

the Court's opinion in Egan. Any other reading of Egan simply ignores the plain 

language of that decision. Consequently, the Board should· not apply Egan to sensitive 

position eligibilitydetenninations because there is no definite relationship between 

sensitive position eligibility detenninations and national security similar to that present in 

the security clearance context. See Brown, 110 M.S.P.R. at 603 (Agency designated 

appellant's position as non-critical sensitive because of the need to protect store 

inventory, and not for national security reasons). As we maintained in our Amicus Brief, 

"Put another way, whether the Commissary at Gunter Air Force Base has a sufficient 

number of mustard jars on its shelves is not the type of information that the Court sought 

to protect in Egan." 

Moreover, if an agency decides that a position does genuinely implicate access to 

classified national security infonnation, then that agency possibly may, subject to the 

appropriate procedures and arrangements, require a security clearance for the position, 

11 
and to thereby properly avail itself of Egan. Weighed against the large number of 

employees who occupy non-critical sensitive it is a perversion of the Court's rationale in 

Egan to allow the exception to swallow the rule of federal employment. See also 

Attachment 3 to Northover's Reply to the Proposed Demotion (Agency Tab 4f) 

references DOD 5200.2-R Personnel Security System. It also provides at Sec. C3.4.5 that 

"personnel security clearances must be kept to the absolute minimum necessary to meet 

mission requirements," and that "personnel security clearances shall normally not be 

issued ... to persons whose regular duties do not require authorized access to classified 

information.... [or to] "food service personnel, vendors and similar commercial sales or 

service personnel whose duties do not require access to classified information." 

The DeCA Directive 50-25 (Agency Tab 4gg) provides at para. 1-5 that the NACI 

utilized here is the minimum personnel suitability investigation required for all 

employees assigned to non-sensitive positions and positions of public trust where no 

security clearance is required, and the "SF85P, Questionnaire for Public Trust positions, 

will be submitted by OPM for initiation of appropriate personnel suitability 

investigation." Despite this position allegedly being non-critical sensitive, the type of 

investigation is one assigned to non-sensitive positions. Thus, it would seem appropriate 

to examine the analogous suitability regulations promulgated by OPM regarding MSPB 

revIew. 

5 C.F.R.. 731.202 entitled Criteria for Suitability determinations provides that "in 

determining whether its action will promote the efficiency of the service, OPM or an 

agency to which OPM has delegated authority shall make its determination on the basis 

12 
of specific factors in para. (b) of this section with appropriate consideration to the 

additional considerations outlined in para. (c) of this section." The specific factors listed 

include, inter alia, issues of deception or material, intentional false statements in 

examination or appointment; refusal to furnish testimony; dishonest conduct and other 

matters. The additional considerations include, inter alia, the nature of the position, 

nature, circumstances and recency of the conduct. 5 C.F.R. 731.501 addresses appeals to 

the MSPB: 

(a) When aPM or an agency acting under delegated authority under this part takes 

a suitability action against a person, that person may appeal to the Merit Systems 

Protection Board. (b) Decisions by the Merit Systems Protection Board - (1) If the 

Board finds that one or more of the charges brought by OPM or an Agency against 

the person is supported by a preponderance of the evidence, it must affirm the 

suitability determination. The Board must consider the record as a whole and 

make a finding on each charge and specification in making the decision. (2) If the 

Board sustains fewer than all the charges, the Board shall remand the case to aPM 

the Agency to determine whether the action is still appropriate based on the 

sustained charge(s). However, the Agency must gold in abeyance a decision on 

remand until the person has exhausted all rights to seek review of the Board's 

decision, including court review. (3). Once review is final, aPM or an agency will 

determine whether the action is appropriate based on the sustained charges and 

this determination will be fmal without any further appeal to the Board... 

Similar arguments were made in these cases that Congress granted the President 

authority to make suitability determinations. Maximo v. aPM, 30 MSPR 510 (1986). 

Nevertheless, the Board held that to sustain its burden of proof in a negative suitability 

determination case, the Agency or aPM must show that the appellant's conduct may 

reasonably be expected to interfere with or prevent efficient service in his position or 

effective accomplishment by the employing agency of its duties or responsibilities. Here, 

it must be noted that Northover performed effectively for 5 years before any investigation 

13 
even commenced here. See Mervar v. OPM., 21 MSPR 309 )(employee's behavior as a 

disc jockey is not predictive of his behavior as an air traffic controller). See also Folio v. 

Dept. of Homeland Security, 402 F.3d 1350 (Fed. Cir. 2005) (Federal Circuit held that on 

appeal from the decision of the INS , the Board was not limited solely to reviewing the 

factual underpinnings of allegations on which suitability charges were based, but could 

review all aspects of an unsuitability determination, including whether the charged 

conduct renders an individual unsuitable for the position in question, there an 

Immigration Inspector. The Court held further that the AJ on remand may consider all 

aspects under 5 C.F.R. 731.202 of Folio's ability to perform as an Immigration Inspector 

in order to decide whether he is in fact unsuitable for the job. The statement retained in 5 

C.F.R. 73 L501 (modified in 2008) regarding final agency action without further Board 

appeal, "does not prevent the Board from considering the additional considerations that 

constitute the "nexus" between the specific factors of [731.202] para. (b) and the 

additional considerations of [731.202] para. (c). Section 731.202(a) expressly states that 

those specific factors and the additional considerations form the basis for the general 

determination whether the action will promote the efficiency of the service. They are all 

reviewable by the Board." The qualifications of a Homeland Security Immigration 

Inspector, and the suitability of his application for employment, all fully reviewable by 

the Board, clearly may have an impact on national security, unlike that of a Commissary 

employee whose position is confined to grocery store inventory. 

Whether considering an analogous suitability evaluation by the MSPB or not, the 

same standards governing adverse actions under 5 U.S.C. 7511-7514 and 7701 as would 

14 
apply to any other eligibility qualifications cases, Congress intended to be considered by 

the Board. 

Respectfully Submitted, 

Stuart A. Kirsc7 

~~- ....... 

Assistant General Counsel 

American Federation of Government. Employees 

6724 Church Street, Suite 2 

Riverdale, GA 30274 

W: (770) 907-2055 

F: (770) 907-2051 

kirscs@afge.org 

15 
Certificate of Service 

I hereby certify that a copy of the foregoing RESPONSE TO SUPPLEMENTAL 

AGENCY NARRATIVE REGARDING SCOPE OF REVIEW was served by certified 

mail this 11 th day of March, 2010 upon the following: 

Stacy Turner Caldwell 

Department of Defense 

Defense Commissary Agency 

Office of General Counsel 

1300 E. Avenue 

Fort Lee, VA 13801-1800 

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