Case Title: DEVON HAUGHTON NORTHOVER v. DEPARTMENT OF DEFENSE 

Docket Number: AT-0752-10-0184-I-l 

Pleading Title: Supplemental Agency Narrative Response 

Filer's Name: Stacey Turner Caldwell, Esq. 

Filer's Pleading Role: Agency Representative 

N/A 

Pleading Number :•••• SUbmission dale: 2010-01-27 16:57:17 Confinnalion Number1. ••• page 1 of 8 
Table of Contents 

Pleading Interview 3
 

Uploaded Pleading Text Document. 4
 

Certificate of Service 7
 

Pleading Number;lt . •••• Submission date: 2010-01-27 16:57:17 Confirmation Number:_._ page 2 of 8
 
1. Would you like to enter the text online or upload a file containing the pleading? 

See attached pleading text document 

2. Does your pleading assert facts that you know from your personal knowledge? 

Yes 

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct? 

Yes 

Pleading Number :..... Submission date: 2010-01-27 16:57:17 Confirmation Number"S••• page 3 of 8 
UNITED STATES OF AMERICA 

2 MERIT SYSTEMS PROTECTION BOARD 

3 ATLANTA REGIONAL OFFICE 

4 

5 DEVON HAUGHTON NORTHOVER, 

6 Appellant, 

7 v. 

8 DEPARTMENT OF DEFENSE, 

9 DEFENSE COMMISSARY AGENCY, 

10 Agency. 

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) 

) DOCKET NUMBER 

) 

) AT-0752-1O-0184-I-l 

) January 27, 2010 

13 SUPPLEMENTAL AGENCY NARRATIVE RESPONSE 

14 Now comes the Department of Defense, Defense Commissary Agency (agency), through 

15 counsel, and files the following Supplemental Agency Narrative Response in the appeal brought 

16 by Devon Haughton Northover (appellant), in order to apprise the Judge and appellant of legal 

17 developments since the filing ofthe Agency Response File, which included the original Agency 

18 Narrative Response, on December 23, 2009. 

19 Agency Position 

20 In the Agency's Narrative Response filed in this matter on December 23, 2009, the Agency 

21 asserted its position that the limited scope of review set forth in Department afthe Navy v. Egan, 

22 484 U.S. 518 (1988), should apply to this appeal which concerns appellant's demotion from a 

23 non-critical sensitive position to a nonsensitive position based on his denial of eligibility for 

24 access to classified information and/or occupancy of a sensitive position. The Agency cited the 

25 Board's Final Decision in Stella Crumpler v. Dep't afDefense, DC-0752-09-0033-I-I, 2009 

26 MSPB 224 (Nov. 2, 2009), which applied the Egan rule limiting the scope ofBoard review to an 

27 appeal concerning an eligibility for occupancy of a sensitive position determination, in support 0 

28 its position. 

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After the Agency's filing of the Agency Response File, the Agency received notice that the 

2 Board had entered a new decision in the Crumpler case, vacating the November 2, 2009 Board 

3 decision and reopening that appeal. See Slella Crumpler v. Dep'l ofDefense, 109 LRP 78623 

4 (Dec. 18,2009) (reopening and vacating the Board's previous Final Decision entered Nov. 2, 

5 2009)). In vacating and reopening Crumpler, the Board determined that it would seek and 

6 consider an advisory opinion from the Office of Personnel Management before deciding this 

7 significant issue of law. 

8 Since the earlier Crumpler decision was the only actual Board-level MSPB decision which 

9 applied the Egan rule to a security determination case involving a denial of eligibility for 

10 occupancy of a sensitive position, as opposed to a denial of a security clearance for access to 

11 classified information itself, and it has now been vacated, the Agency is updating its legal 

12 position to represent the current status of the Crumpler appeal. However, the Agency continues 

13 to take the position that the Egan rule should apply to security determinations concerning 

14 eligibility for occupancy of a sensitive position denials as well as those concerning security 

15 clearance for access to classified information denials. MSPB Administrative Judges have 

16 consistently applied the Supreme Court's Egan ruling in their initial decision's on security 

17 determination cases involving positions which are designated as sensitive, but which do not 

18 require a security clearance for access to classified information. See, e.g:., Euslace A. Prince v. 

19 Dep'l ofDefense, DE-0752-08-0238-I-l, 2008 WL 4501659 (July 23, 2008) (Administrative 

20 Judge Patricia M. Miller); Jonelle D. Michael v. Dep 'I ofJuslice, NY-0752-09-0022-1-1, 2008 

21 WL 5552881 (Dec. 23, 2008) (Administrative Judge Maria M. Dominguez); Tammy E. Hanson 

22 v. Dep'l ofDefense, CH-0752-08-0540-I-l, 2008 WL 4923475 (Sept. 16, 2008) (Administrative 

23 Judge Scott D. Cooper); Arnold E. Dean v. Dep'l ofDefense, PH-0752-08-0411-I-l, 2008 WL 

24 4115653 (Jul. 3,2008) (Administrative Judge Wilhelmina Douglas Stevenson); Debbie L. 

25 Walkerv. Dep'lofDefense, No. AT-0752-04-0093-I-l, 2004 WL 331304 (Feb. 10,2004) 

26 (Administrative Judge Joseph E. Clancy). 

27 The Agency recognizes that the Board's pending decision in Crumpler regarding the 

28 appropriate standard review in cases such as this involving a certificate of eligibility for 

29 occupancy of a sensitive position may impact how and when your Honor proceeds forward with 

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the instant case. Of further significance, the Agency also notes that another denial of eligibility
 

2 for occupancy of a sensitive position case, Jeanell M Brown v. Dep 't ofDefense, CH-0752-08­


3 0415-1-1, 108 LRP 49268 (July 9, 2008) (Administrative Judge Howard Ansorge)(Initial
 

4 Decision applying Egan), 109 LRP 14317 (March 12, 2009)(split decision by Board on Petition
 

5 for Review, thereby rendering Initial Decision final), is now on appeal to the Federal Circuit.
 

6 Respectfully submitted this 27th day of January 2010:
 

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8 lsi Stacey Turner Caldwell
 

9
 Stacey Turner Caldwell 

Agency Representative 10
 

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ading Number _ Submission Confirmation Number: __., page 6 f 8 date: 2010-01-27 16:57:17 
Certificate Of Service
 

e-Appeal has handled service of the assembled pleading to MSPB and the 

following Parties. 

Name & Address Documents Method of Service 

MSPB: Atlanta Regional office Supplemental Agency e-Appeal I e-Mail 

Narrative Response 

Rosa V. Timmons Supplemental Agency e-Appeal I e-Mail 

Appellant Representative Narrative Response 

I agree to send a printed copy of the electronic pleading with attachments to 

non-efilers by the end of next business day, as follows: 

Name & Address Documents Method of Service 

Devon Haughton Northover Supplemental Agency US Postal Mail 

Appellant Narrative Response 

Pleading Number :_••• Submission date: 2010-01-27 16:57:17 Confirmation Number: __• page 7 of 8 
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Pleading Number:4l . •••Z•• Submission date: 2010-01-27 16:57:17 Confirmation Number:••• page 8 ot8