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05/13/2010 16:39 2026396441 AFGE PAGE 02/15

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

RHONDA K. CONYERS

Appellant,

v. Docket No. CH-0752-09-0925-M

DEPARTMENT OF DEFENSE,

Agency*

DEVON HAUGHTON NORTHOVER

Appellant,

v. Docket No. AT-0752-10-0184-M

' /

DEPARTMENT OF DEFENSE,

Agency.

COMMENTS TO OFFICE OF PERSONNEL MANAGEMENT ADVISORY

OPINION BY DEVON HAUGHTON NORTHOVER

Appellant Devon Haughton Norraover ("Northover') timely submits the following

comments pursuant to the April 20,2010, order of the United States Merit Systems

Protection Board ("Board") that granted the parties until May 13,2010, to submit their

comments to the advisory opinion prepared by the U.S. Office of Personnel Management

("OPM") in the above-captioned cases.

For the reasons that follow, and for the reasons previously discussed by Northover

as well as by the amicus curiae who filed briefs supporting the appellants in this matter,

the Board should not expand the holding ofDepartment of the Navy v. Egan, 484 U.S.

1
.05/13/2010 16:39 2026396441 AFGE PAGE 03/15

518, 530-31,108 S.Ct. 818,98 L. Ed.2d 918 (1988), ("£gan") to limit the scope of the

Board's review of adverse action appeals arising from an agency's determination that an

employee is ineligible to occupy a sensitive position. "Adjudication of a removal appeal

requires the Board to determine whether the agency has proven the charge or charges on

which the removal is based; and, when the charge consists of the employing agency's

withdrawal or revocation of its certification or other approval of the employee's fitness or

other qualifications to hold his position, the Board's authority generally extends to a

review of the merits of that withdrawal or revocation." Adams v. Dep 't of the Army, 105

M.S.P.R. 50,54-55 (2007).

I. BACKGROUND

Following a series of Board opinions that culminated with the Board's nowvacated opinion in Grumpier v. Department of'Defense, the Board elevated the instant

appeals from their respective regional offices to the Board itself for consideration of the

appropriate scope of review that the Board should apply to appeals concerning a federal

employee's eligibility to occupy a sensitive position. Grumpier v. Department of

Defense, \ 12 M.S.P.R. 636, 2009 MSPB 224 (2009), vacated, 2009 MSPB 233 (2009).

More or less contemporaneous with this elevation, the Board requested that OPM submit

an advisory opinion concerning the application of 5 C.F.R., Part 732, ("Part 732") to the

scope of review question, and invited interested parties to submit briefs amicus curiae on

the question as well. See Board Request to OPM (February 4,2010); see also 75 Fed.

Reg. 6728 (February 10,2010) (inviting amicus briefs).
05/13/2018 16:39 2026396441 AFGE PAGE 04/15

Interested parties, including the American Federation of Government Employees

("AFGE"), the National Employment Lawyers Association, the Metropolitan Washington

Lawyers Association, the Government Accountability Project, and the National Treasury

Employees Union accepted the Board's invitation and timely filed arnicas briefs on

March 1,2010. Amici raised numerous valid arguments against the application ofEgan

to appeals involving sensitive position eligibility determinations; three of which

Northover believes to be pertinent here. First, amici argued that nothing in Part 732

compels the application ofEgan to adverse action appeals involving an employee's

eligibility to occupy a sensitive position. Second, amici argued that the Board should not

apply Egan to limit the scope of its review of appeals involving an employee's eligibility

to occupy a sensitive position because the application ofEgan to such eligibility based

appeals would be inconsistent with the rationale underlying the Egan decision itself.

Three, amici argued that the Board should not apply Egan to appeals involving sensitive

position eligibility determinations because doing so would deprive vast swathes of the

Federal workforce of the fundamental due process protections guaranteed to them by the

United States Constitution, and the Civil Service Reform Act of 1978 ("Act"), 5 U.S.C. §

1201 etseq.

After submission of the above amicus briefs, OPM prepared its advisory opinion

as requested by the Board. Specifically, although the Board requested a single advisory

opinion from OPM, OPM submitted two letters in response to the Board's request.

OPM's first letter was dated March 31,2010. OPM's submitted its second letter, dated

April 15,2010 and labeled as a supplementary information letter, in order to correct an

error made by the National Treasury Employees Union in their amicus brief. For the
05/13/2010 16:39 2026396441 AFGE PAGE 05/15

purpose of these comments, however, Northover treats OPM's letters as a single advisory

opinion.

As mentioned above, the Board requested that in its opinion OPM address

whether, pursuant to Part 732, the rule in Egan limiting the scope of the Board's review

of an adverse action appeal based on the revocation of a security clearance, "also applies

to an adverse action concerning a "non-critical sensitive" position due to the employee

having been denied continued eligibility for employment in a sensitive position." Board

Request to OPM, p. 2.

H. COMMENTS

Consistent with the arguments raised by amici, Northover submits three

comments to OPM's advisory opinion, One, OPM's advisory opinion wholly supports

the argument that nothing in Part 732 compels the application ofEgan to adverse action

appeals involving an employee's eligibility to occupy a sensitive positioa Two, the

rationale underlying Egan does not support Egan 's application to adverse action appeals

involving a federal employee's eligibility to occupy a sensitive position. Three, the

expansion ofEgan would deprive federal employees of due process.

A. Part 732 Does Not Compel the Application ofEean to Adverse Action

Appeals Involving a Federal Employee's Eligibility to Occupy a

Sensitive Position

OPM's advisory opinion wholly supports the argument made by amicus American

Federation of Government Employees ("AFGE"), and in which Northover concurs, that

Part 732 does not compel the application ofEgan to adverse action appeals involving an

employee's eligibility to occupy a sensitive position. See AFGE Amicus, p. 3.
05/13/2610 16:39 2026396441 AFGE PAGE 06/15

Specifically, in its opinion, OPM expressly states that the regulations contained hi part

732, "are silent on the scope of an employee's rights to Board review when an agency

deems the employee ineligible to occupy a sensitive position." OPM March 31,2010,

letter, p. 2. As a result, "[t]he regulations do not independently confer any appeal right or

affect any appeal right under law." Id.

Moreover, although OPM distinguished between the particular OPM forms

associated with the different levels of employee background investigations conducted by

OPM, OPM concluded by advising that, '^resolution of the issue before the Board

regarding the scope of the Egan decision cannot be determined by reference to OPM's

regulations." Id, at p. 3; see also OPM April 15,2010, letter (distinguishing between

OPM forms SF-85, SF-85P and SF-86). This means that the Board must look to Egan

itself and the public policies behind that opinion for resolution of its question.

Indeed, Northover respectfully submits that regardless of any confusion as to

which OPM form an agency should use to initiate a particular level of background

investigation, the scope of the Board's adverse action review should not be determined

merely by reference to the investigation form that an employee may have completed in a

given case. To allow the substance of the Board's review to be dictated by the form used

by an agency to begin an employee's background investigation would be quite literally to

elevate form over substance.

Put differently, the Board should not rely on OPM's forms to determine its

statutory scope of review because at bottom OPM's forms are nothing more than an

administrative convenience adopted to assist OPM and its constituent agencies in

carrying out OPM's investigative responsibilities. Using OPM's advisory opinion as a
05/13/2010 16:39 202633G441 AFGE PAGE 07/15

guide, it seems clear that OPM's forms were simply not intended to address the Board's

scope of review. The dispositive factor in determining whether the rule ofEgan applies

to a given appeal should be whether the position at issue requires access to classified

national security information. By their nature OPM's forms are far more responsive to

the question of whether the particular position occupied by an employee is in feet a

sensitive position. Thus, where, as here, an employee has completed either an SF-S5 or

SF-S5P but not an SF-86, then, based on OPM's opinion, the form chosen should raise a

presumption that the position at issue is not a sensitive position.1

B. The Rationale Underlying Esan Docs Not Support Application to

AqVersc Action Appeals Involving a Federal Employee's Eligibility to

Occupy a Sensitive Position

Egan premised its limitation of Board review on the indivisible tie between an

employee's possession of a security clearance and her access to classified national

security information as a result of that clearance. See Egan, 484 U.S. at 529 (" ... the

protection nf rf)asqjfieri inforrnation must be committed to the broad discretion of the

agency responsible, and this must include broad discretion to determine who may have

access to it") (emphasis added).

Because eligibility to occupy a sensitive position does not go hand-in-hand with

access to classified national security information in the same way as possession of a

security clearance, the Board should not expand Egan to cover adverse actions arising

from sensitive position eligibility determinations. See Adam$> \ 05 M.S.P.R. at 55 ("The

present appeal does not involve the national security considerations presented in Egan.

While the agency's computer system provides employees with access to sensitive

1

 Northovcr continues to contend that he did not occupy a sensitive position. Solely for the sake of these

comments, however, he assumes that he did.
05/13/2010 16:39 202G396441 ' AFGE PAGE 08/15

information, the agency has acknowledged that the information is not classified and has

indicated that it does not consider access to that information to be equivalent to

possession of a security clearance."); see also Agency answer to Northovcr interrogatory

12 (admitting that Northover did not access classified information prior to his demotion);

and compare Department of Defense Personnel Security Program, DoD 5200.2-R, §

C3.4.1.1. (limiting the grant of security clearances only to those personnel who require

access to classified infonnation) with DoD 5200.2-R, § C3.1.2.1.2. (listing in the

disjunctive 6 criteria that allow the Department of Defense to designate as a position as

non-critical sensitive - only one of which pertains to classified infonnation, and another

of which simply encompasses any other position so designated by an agency head). The

Department of Defense Personnel Security Program is available at

httpV/www.dtic.rm1/whs/directives/corres/pdfy520002r.T)df.

Put another way, Egan was a limited carve out of the Board's power to review

agency adverse action decisions. The Supreme Court did not find an affirmative

limitation in the express text of the Board's organic act, related statutes or regulations, or

even in the express language of Executive Order 10450 (because, of course, no such

express limitation on the Board's power of review resides there). Instead, and despite the

Court's claim to the contrary, what the Court did was create the rule of Egan from whole

cloth as a narrow limitation on federal employees' adverse action appeal rights based

upon the fact that the Act was silent with respect to the Board's review of security

clearance determinations. Egan, 484 U.S. at 530; see also Egan at 534 (White, J.,

dissenting) ("There is nothing in these statutory provisions to suggest that the Board is to

scrutinize discharges on national security grounds any less comprehensively than other
05/13/2010 16:39 202B396441 AFGE PAGE 09/15

discharges for "cause." Nor does the legislative history of these provisions suggest that

the Board is foreclosed from examining the reasons underlying the discharges of

employees who are alleged to be security threats."). The Court saw its narrow limitation

as justified by the Executive's power as Commander in Chief of the nation's armed

forces and the compelling need to protect classified national security information.

Under these circumstances, when the Egan court was implying a highly

proscribed limitation where no such limitation existed in the plain statutory language, and

in the absence of any contrary statutory or regulatory mandate since Egan was decided,

the Board should not voluntarily dimmish its scope of review in adverse action appeals

that do not involve access to classified national security information. And, again, OPM's

advisory opinion amply demonstrates that no limitation on the Board's scope of review of

appeals involving an agency's sensitive position eligibility determination lies within Part

732.

C. The Expansion ofEzan Would Deprive Federal Employees of Due

Process

Although the factual record in this matter is less than complete on this question,

the availability of the Board's full scope of neutral third party review in appeals involving

sensitive position eligibility determinations is especially critical considering the vast

number of Federal positions that have been designated as non-critical sensitive despite

the feet that their occupants, e.g. Northover, do not access or handle classified national

security information. For example, the Defense Finance and Accounting Service has

designated 100% of its employees as sensitive. Cf. DFAS Memorandum For All DFAS

Employees (March 4,2005), attached to these comments as Exhibit 1. Tliis means that if

the Board chooses to expand Egan, then agencies such as DFAS may completely evade
05/13/2010 16:39 2026396441 AFGE PAGE 10/15

the teeth of Board review by couching any type of adverse action in terms of revocation

of eligibility to occupy a sensitive position; without even resort to suitability

considerations.

f As discussed by araicus Government Accountability Project» this is so because an

agency decision to designate a position as sensitive is unreviewable, and hence, unlike

the revocation of a security clearance, there exists no forum for an employee to challenge

the designation of her position as sensitive. GAP Amicus, p. 5; see also OPM March 31,

2010, letter, p. 3 ("OPM's regulations do not furnish a procedure for appealing an

agency's designation of a position as "sensitive" at one of the three prescribed levels.'*).

Allowing agencies to wholesale avoid substantive Board review would be an absurd

result in light ofEgan. It was surely not the Supreme Court's intention in Egan to

exclude the entire civilian workforces of federal agencies from the full scope of the

protections offered by the Act. Yet this is precisely what would occur if the Board were

to limit the scope of its review in adverse action appeals involving agency sensitive

position eligibility determinations. Moreover, had it been the Court's intent to craft such

a vague and open-ended exclusion from the full scope of Board review, the Court could

easily have done so. Instead, the Court used carefully chosen language emphasising the

narrow breadth of the limitation that it was creating, and the limitation's dependence on

access to classified national security information.

Further, the Board should not be misled by any argument that a wholesale

deprivation of full Board review would somehow be cured by the existence of an

agency's internal review procedures. Even the existence of an infinite number of layers

of internal non-third party review, layered no doubt like a Thcscan labyrinth, would not
05/13/2010 16:39 2026396441 AFGE PAGE 11/15

serve as a substitute for the independent and neutral review provided by the Board

pursuant to its statutory mandate.

Similarly, the Board should remain conscious that applying the full scope of

Board review to agency sensitive position eligibility determinatiqns will not prevent

agencies from taking conduct-based Chapter 75 adverse actions or suitability actions in

appropriate cases. Likewise, agencies would retain their ability to respond to urgent

criminal or national security issues through their ability to administer indefinite

suspensions and through the national security provisions contained in 5 U.S.C. § 7532.

Thus, the Board should not expand its application otEgan.

10
05/13/2010 16:39 202G39G441 AFGE PAGE 12/15

ra. CONCLUSION

Based on all of the foregoing, Northover respectfully submits that the Board

should not apply Egan to limit its review of adverse action appeals arising from or

involving an agency's determination that an employee is ineligible to occupy a sensitive

position.

Respectfully submitted,

Mark D. Roth

General Counsel

AFGE,AFL-CIO

80 F Street, NW

Washington, D.C. 20001

Tel: (202)639-6424

RotfaMfSiafee.org

ss M. Graji

Assistant Gei

AFGE, AFL80 F. Street, NW

Washington, D.C. 20001

Tel: 202-639-6426

Fax.: 202-639-6441

Email; Grajaa@afge.org

Mav 13.2010

Date

11
05/13/2010 1&:39 2026336441 AFGE • PAGE 13/15

CERTIFICATE OF SERVICE

CONYERS AND NORTHOVER. COMMENTS BY APPELLANT NORTHOVER

I hereby certify and affirm that on this day, May 1 3, 20 1 0, 1 caused complete

copies of the Comments by Devon Haughton Northover to OPM's Advisory Opinion in

the above-captioned cases to be filed and served as follows:

(via fax and U.S, First Class Certified Mail)

William D. Spencer

Clerk of the Board

Office of the Clerk of the Board

U.S. Merit Systems Protection Board

1615 M. Street N.W.

Washington, D.C. 2041 9

202-653-71 30 <fax)

Dep't of Defense

(via fax and U.S. First Class Certified Mail)

Stacy Turner Caldwell

Department of Defense

Defense Commissary Agency

Office of General Counsel

1300 E. Avenue

Fort Lee, VA 1380 M 800

804-734-8259 (fax)

ss M. Graj

Assistant Genwaf Co

12
05/13/2010 16:39 2026396441 AFGE PAGE 14/15

DEFENSE FINANCE AND ACCOUNTING SERVICE

INDIANAPOLIS

8889 EAST 56TH STREET

INDIANAPOLIS, INDIANA 46249

MEMORANDUM FOR ALL DFAS EMPLOYEES

SUBJECT: Position Sensitivity Level

MIR

 r* 2OT5

In response to Presidential Decision Directives, PDD-62, Combating Terrorism, and PDD-63,

Critical Infrastructure Protection, DFAS formed a team to conduct assessments at each of its

sites to identify risks and recommend risk mitigation strategies. The team was called the Safety,

Protection, Infrastructure, and Recovery Integration Team or SPIRIT. They looked specifically

at programs related to safety, security and emergency planning.

One of the findings in the 2003 SPIRIT report was that many positions in DFAS had routine

access to sensitive information and/or access to classified information, yet were erroneously

designated as non-sensitive. According to Chapter 3 and Appendix 10 of DOD 5200.2-R, DOD

Personnel Security Program, DoD positions that include duties of a sensitive nature (including

access to classified information) such that the misconduct or malfeasance of an incumbent in the

position could adversely impact national security will be designated as sensitive. Sensitive

positions are either non-critical sensitive (NCS) or critical-sensitive (CS). As a result of the

SPIRIT report, the agency will be reviewing the position sensitivity designation of all positions.

Currently, only about 35% of DFAS positions are non-critical sensitive or critical-sensitive.

When the positioti sensitivity review is completed we. expect that about 99% of DFAS positions

will be NCS or CS. The review will begin in March 2005 with the Indianapolis site.

What does this mean for you? As positions are re-designated NCS or CS, employees will be

required to complete and submit the fonns for a NCS or CS background investigation. The

background investigation determines your eligibility to occupy a NCS or CS position. If upon

review your position is re-designated, you will be asked to complete the appropriate investigation

forms.

The Washington Headquarters Services, Consolidated Adjudication Facility (CAP)

determines eligibility for DoD employees to occupy a sensitive position and/or have access to

classified information. Guidelines for adjudication include, but are not limited to: issues related

to financial considerations, foreign preference, alcohol consumption, drug involvement, criminal

conduct, and personal conduct. The investigative forms you complete will be forwarded to the

CAP for adjudication. The CAF will determine whether you are eligible to occupy a position

designated as NCS or CS.

If you are currently or have in the past experienced any of the types of issues identified in the

above paragraph it is strongly suggested that you start now to take appropriate steps to resolve

your issues. This will better position you to meet the requirements for your position.

wymy.dfaa.mil

Your Financial Partrw @ Wort
05/13/2010 16:39 202B39G441 AFGE PAGE 15/15

A site has been set up on the DFAS eportal to provide farther information regarding the types

of things the adjudicating facility will consider. This site can be accessed at

^tofl!//a)arUl.dEa8.mil/tiQrtal/caF'"^"'/^«*"^*Yi 1fr?ThrniiTTh640. Additionally, the Site provides

you with sources from which you can obtain assistance, i.e. the Employee Assistance Program

provides financial and legal assistance.

please keep in mind that neither the security process nor the criteria for assignment of position

sensitivity level designations have changed. Rather, we are appropriately applying the criteria in

DOD 5200.2-R, Personnel Security Program and those found in 5 CFR 732.201 along with the

recommendations of the SPIRIT. Employees will continue to receive due process during the

security adjudication process, and, if appropriate, no administrative action will be taken untU

such time as a final determination is made regarding the employee's ability to obtain/retainthe

necessary eligibility or clearance.

M Shorty

Director, Shared Services Center