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UNITED STATES OF AMERICA 

2 MERIT SYSTEMS PROTECTION BOARD 

3 ATLANTA REGIONAL OFFICE 

4 

DEVON HAUGHTON NORTHOVER, 

6 Appellant, 

7 v. 

8 DEPARTMENT OF DEFENSE, 

9 DEFENSE COMMISSARY AGENCY, 

Agency. 

11 

) 

) DOCKET NUMBER 

) 

) AT-0752-10-0184-I-l 

) 

December 22, 2009 

) 

) 

) 

) 

12 --------------) 

13 AGENCY NARRATIVE RESPONSE 

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

counsel, and files the following Agency Narrative Response in the appeal brought by Devon 

16 Haughton Northover (appellant). 

17 Summary of Material Facts 

18 Pursuant to the authority granted to the agency by Executive Order 10450, as amended, and 

19 further by 5 C.F.R. Part 732, the agency has designated the position of GS-1144, Commissary 

Management Specialist as a "moderate risk" national security position with a sensitivity level of 

21 "non-critical sensitive." See 5 C.F.R. § 732.102 and § 732.201; Agency Response File (ARF), 

22 Tabs 40, pp. 2, 7 and 4gg, pp. 3, 34-35. Based on this designation, an employee occupying the 

23 position ofGS-1144, Commissary Management Specialist is required to undergo a background 

24 investigation and maintain eligibility for access to classified information and/or occupancy of a 

sensitive position. See ARF, Tab 4gg, pp. 3-4, 24. The Department of Defense Washington 

26 Headquarters Services Consolidated Adjudication Facility (WHS/CAF) is the security agency 

27 responsible for adjudicating individual personnel suitability and security investigations results 

28 for the agency for the purpose ofgranting or denying security clearances and eligibility to 

29 occupy sensitive positions. See ARF, Tab 4gg, pp. 2, 13. 

Confirmation Numbe _ page 11 of 67 PIe Submission date: 2009-12-23 05:01:14 ing Number •••• 
Appellant was hired as a GS-1144-05 Commissary Management Specialist (also referred to 

2 as a "CAO") at the agency's Gunter Air Force Base (AFB) Commissary, effective September 8, 

3 2002. See ARF, Tab 4ii. Appellant's original position number as a GS-05 CAO was J4M3005­

4 31653. See ARF, Tab 4ii, Block 15-18. The sensitivity level of "non-critical sensitive" was 

5 specified on Appellant's appointment SF-50. See ARF, Tab 4ii, Block 41 (listing the position 

6 sensitivity level as "2," which indicates "non-critical sensitive"); see also ARF, Tabs 40, pp. 2, 7; 

7 4gg, p. 31. The sensitivity level of "2 - noncritical sensitive" was also indicated in the Position 

8 Description for the GS-05, CAO, Position No. J4M3005N, which is filed in appellant's Official 

9 Personnel Folder (OPF). See ARF, Tab 4hh, Box 12. The sensitivity level of"2," indicating 

10 "non-critical sensitive," was specified on every SF-50 for personnel actions concerning 

II appellant's position as a GS-05 CAO. See ARF, Tabs 4cc thru 4ff(Block 41 on each form). 

12 Appellant was promoted to the position ofGS-1144-07 Commissary Management Specialist 

13 (CAO) effective September 21,2003. See ARF, Tab 4bb. Appellant's position number as a GS14 07 CAO was J4M3007-46953. See ARF, Tab 4bb, Block 15-18. The sensitivity level of"2," 

IS indicating "non-critical sensitive," was specified on appellant's promotion SF-50 and on every 

16 SF-50 for personnel actions concerning the appellant's position as a GS-07 CAO. See ARF, 

17 Tab 4bb, Block 41; Tabs 4m and 4q thru 4z (Block 41 on each form). 

18 The Agency Position Description in use at the time of appellant's promotion inadvertently 

19 listed the sensitivity level for the position ofGS-07, CAO, Position No. J4M3007N, as "I ­

20 nonsensitive." See ARF, Tab 4], Block 12. However, this error in the Position Description did 

21 not change the fact that the position was, in actuality, designated as a non-critical sensitive 

22 position in the Agency's security directive, dated February 2002. See ARF, Tab 4gg, pp. 34-35; 

23 see also ARF, Tab 40, pp. 2, 7. Moreover, the error in the Position Description for the GS-7 

24 CAO did not prevent the appellant's sensitivity level from being properly designated as level 2, 

25 non-critical sensitive, in documentation concerning all of appellant's personnel actions, as 

26 referenced above. 

27 The GS-07 CAO, No. J4M3007N, Position Description filed in appellant's OPF includes an 

28 un-initialed white-out alteration in Block 12, obliterating the" I-nonsensitive" designation and 

29 checking the "2-noncritical sensitive." See ARF, Tab 4aa, Box 12. The Agency does not know 

Pie ing Number.'..... Submission date: 2009-12-23 05:01 :14 Confirmation Number1. ••• page 12 of 67
who made this alteration or when the alteration was made. It is possible that an HR staff 

2 member may have noticed the error in the sensitivity designation and attempted to correct the 

3 error on the form. However, such an alteration in a Position Description is not effective unless 

4 initialed by a classifier. Nonetheless, the J4M3005/J4M3007 Position Descriptions for a 

5 Commissary Management Specialist (CAO) were reissued with new position numbers of 

6 ES07036/WS07036 on or around January 24, 2007. 1 See ARF, Tabs 40 and 4p. The new CAO 

7 Position Description correctly designates the position with a sensitivity level of"2 ­ noncritical 

8 sensitive." See ARF, Tab 4p, Block 12. 

9 On February 11,2008, Washington Headquarters Services, Consolidated Adjudications 

10 Facility (WHS/CAF) issued the appellant a Statement of Reasons (SOR) informing the appellant 

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

12 information and/or occupancy of a sensitive position." See ARF, Tab 4j and 41. On March 3, 

13 2008, the appellant acknowledged receipt ofthe SOR, indicated his intention to respond to the 

14 SOR, and requested an extension oftime to respond. See ARF, Tab 41. Appellant was granted an 

15 extension until May 2, 2008 to respond to the SOR. Id. However, the appellant did not file a 

16 timely response to the SOR, nor did appellant submit a timely request for further extension. !d. 

17 Since the appellant failed to submit a timely response, Susan B. Edenfield, Deputy Chief ofthe 

18 WHS/CAF issued a Letter of Denial (LOD) to the appellant on March 6, 2009, denying his 

19 eligibility for access to classified information and/or occupancy of a sensitive position. !d. 

20 WHS/CAF directed the agency to terminate the appellant's access to classified information 

21 and/or occupancy of a sensitive position. See ARF, Tab 4k. 

22 On August 24, 2009, the agency proposed the appellant's demotion from the position ofGS23 1144-07, Commissary Management Specialist/CAO to the position ofGS-1101-04, Store 

24 Associate. See ARF, Tab 4h. The Notice ofProposed Demotion specified that the proposed 

25 action was due to appellant's loss of eligibility for access to classified information and 

26 

27 

28 I The date ofthe final signature by the Agency's Deputy Director on the new Position Description is illegible. 

29 However, the HR Specialist/Classifier signed offon the new Position Description on January 24, 2007. See ARF, 

Tab 4p. 

Pie ing Number •••• Submission date: 2009-12-2305:01:14 Confirmation Number"••_ page 13 of 67 
occupancy of a sensitive position. !d. 2 Appellant, through his representative, responded to the 

2 Notice of Proposed Demotion on October 5, 2009. See ARF, Tabs 4fand 4g. Appellant asserted 

3 that his position ofCAO was "nonsensitive," as indicated in his copy of the Position Description, 

4 and that appellant had never been made aware that his position was "non-critical sensitive." See 

5 ARF, Tab 4f. The agency demoted appellant to the position ofGS-ll 01-04, Store Associate 

6 effective December 6, 2009, "based solely on [his] inability to maintain eligibility to occupy a 

7 sensitive position." See ARF, Tabs 4b thru 4e. 

8 Agency Position 

9 The Merit Systems Protection Board has consistently applied the Supreme Court's ruling in 

10 Department ofthe Navy v. Egan, 484 U.S. 518 (1988), and the applicable burdens of proof 

11 referenced therein, to cases such as this where a security clearance or eligibility for such 

12 clearance is at issue. See Stella Crumpler v. DOD, DC-0752-09-0033-1-1, 2009 MSPB 224 

13 (Nov. 2, 2009)(Final Decision applying the Egan rule limiting the scope of Board review and 

14 affirming the appellant's removal); Eustace A. Prince v. DOD, DE-0752-08-0238-I-l (July 23, 

15 2008) (Affirming the agency's removal for loss of eligibility to occupy a noncritical-sensitive 

16 position, describing the removal as tantamount to a loss of a "security clearance," and applying 

17 the Egan standard). In Egan, the Supreme Court held that the grant of a "security clearance" to a 

18 particular employee is a sensitive and inherently discretionary judgment call that is committed by 

19 law to the appropriate agency ofthe Executive Branch. See Egan, 484 U.S. at 527. Similarly, 

20 the decision to deny an individual eligibility to occupy a National Security Position in the 

21 Department of Defense based on inability to maintain eligibility to occupy a Sensitive position is 

22 also a sensitive and inherently discretionary judgment call committed to the appropriate agency 

23 

24 2 The Sales Associate position is a new position title created under the Agency's new Workforce of the Future 

(WOF) structure. The position generally replaces the older positions of Sales Store Checker and Store Worker. The 25 

position is currently officially designated as a non-critical sensitive position. See ARF, Tab 40, p. 5; see also ARF, 

26 Tab 4a (Position Description for the GS- I 10 I-04, Store Associate, Position No. 99043, indicating in Box 12 that the 

position is "2 - noncritical sensitive"). However, in July 2009, the Agency conducted an in-depth review and 

27 determined to revise its security designations for several positions, including the Store Associate position. See ARF, 

Tab 4i. The official process of finalizing the new nonsensitive designations for these positions in the Agency's 

28 security directives is still underway. However, the Agency has begun utilizing the new nonsensitive designations 

pending finalization. This has assisted the agency in offering viable alternatives for placement of employees who 

29 are denied eligibility needed for other non-critical sensitive positions, as opposed to removal from employment, 

under the Agency's discretionary policy. See ARF, Tab 4n, p. 2. 

Pie ing Number: ~2••• Submission date: 2009-12-23 05:01 :14 Confirmation Number~'..... page 14 of 67 
of the Executive Branch. Since an individual does not have a property right or liberty interest in 

2 obtaining or retaining a security clearance (see Egan, 484 U.S. at 528), an individual would also 

3 not appear to have a property right or liberty interest in occupying a position that the head of an 

4 agency has designated as sensitive for national security reasons. See 5 C.F.R. §§ 732.1 02(a), 

5 732.201 (a)(2008). 

6 Under Egan, the Board is barred from reviewing the merits of an agency's security7 clearance/eligibility determination. Therefore, the validity of the decision by WHS/CAF should 

8 not be a material issue in this appeal. Rather, in order for the Board to sustain the agency's 

9 action, the agency need only prove, with preponderant evidence, the following elements: (I) the 

10 employee's position required eligibility to occupy a sensitive position; (2) his eligibility to 

II occupy a sensitive position was revoked; (3) the agency followed the procedural requirements of 

12 5 U.S.c. § 7513 in the processing ofthe action at issue 3 

; and (4) in the case ofa removal, that 

13 reassignment was not possible (if consideration is required by agency regulations). See Dept. of 

14 Navy v. Egan, 484 U.S. 518 (1998); Griffin v. DMA, 864 F.2d 1579 (Fed. Cir. 1989); Benoist v. 

15 Dept. ofDefense, 40 MSPR 418 (1989); Weissberger v. USIA, 39 MSPR 370 (1988). 

16 Here, the appellant challenges whether his position required eligibility to occupy a sensitive 

17 position based on the indication that the position is "I-nonsensitive" in the original Position 

18 Description that applied to the position of CAO. However, the specification regarding sensitivity 

19 in the Position Description is not dispositive. See Diana R. Houston v. DOD, 106 LRP 53410, 

20 DE-0752-06-0205-I-l (Aug. 4, 2006)(stating, where the position description contained a 

21 "nonsensitive" indication, that "[t]he position description is only one piece of evidence in 

22 determining the appellant's actual duties and, thus, her need to possess a security clearance."); 

23 see also Diana L. Tinker v. DOD, 108 LRP 19392, DC-0752-08-0118-I-l (March 13, 

24 2008)(considering that a later-issued position description specified that the position was non25 critical sensitive and that the position was designated as non-critical sensitive in DeCA Directive 

26 50-25 in determining that the position required eligibility/a clearance despite the original positio 

27 

28 3 In Robinson v. Department of Homeland Security, 498 F.3d 1361, 1364-65 (Fed. Cir. 2007), the United States 

29 Courts of Appeals for the Federal Circuit ruled that security clearance decisions are not reviewable for minimum du 

process protection. 

Pie ing Number.·••• Submission date: 2009-12-23 05:01: 14 Confirmation Number: •••• page 15 of 67 
description's specification of "nonsensitive"). As referenced above in the agency's factual 

2 summary, the CAO position is designated as non-critical sensitive in DeCA Directive 50-25 (at 

3 Tab 4gg). The CAO position was designated as non-critical sensitive in the appellant's original 

4 Position Description for the GS-05 position and in all of the appellant's SF-50 forms, from the 

5 time of his initial appointment as a grade 5 through his promotion to a grade 7. Thus, the 

6 appellant had notice of the appropriate non-critical sensitive designation. In addition, the agency 

7 reissued the position description in 2007 with an indication that the position is non-critical 

8 sensitive. The job duties of the CAO position require access to agency systems that contain 

9 sensitive information, thereby supporting the non-critical sensitive designation. 

10 There is no dispute that appellant's eligibility was revoked in this case. Nor has the appellant 

11 raised any argument that the agency failed to follow applicable procedural requirements. 4 The 

12 agency has no policy mandating reassignment; however, the agency exercised its discretion in 

13 this case to place appellant in a vacant nonsensitive position as opposed to removing him from 

14 employment. 

15 Based on the foregoing, the agency submits that it has met its burden under Egan, and the 

16 Board should sustain the agency's action. 

17 Respectfully submitted this 22nd day of December 2009: 

18 

19 /s/ Stacey Turner Caldwell 

20 Stacey Turner Caldwell 

Agency Representative 21 

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27 4 In addition to his assertion that his Position Description indicated that his position was nonsensitive, the appellant 

raises an allegation ofdiscrimination based on reprisal and/or race and sex in his appeal form. However, appellant 

28 offers no further information in support ofhis allegations ofdiscrimination. Although appellant has filed a 

discrimination complaint against the agency, that complaint alleges discrimination on the basis ofrace and gender 

29 with regard to a different agency decision: appellant's non-selection for a general manager position on or around 

January 23, 2009. 

Page 6 

Pie ing Number: ..... Submission date: 2009-12-23 05:01: 14 Confirmation Number: ••••St page 16 of 67