MSPB Applies Ruling Limiting Appeal Rights

Wednesday, November 13, 2013

In Ingram v. Dept. of Defense, 2013 MSPB 78 (September 30, 2013), the MSPB affirmed the initial decision of an administrative judge, which had sustained an agency’s decision to demote Ingram. The MSPB held that it was bound by the decision on the U.S. Court of Appeals for the Federal Circuit (Fed. Circuit) in Kaplan v. Conyers, 2013 U.S. App. LEXIS 17278 (August 20, 2013), which prohibited the Board from reviewing Department of Defense national security determinations concerning the eligibility of an individual to occupy a "sensitive" position, regardless of whether the position requires access to classified information.

Ingram was a supervisory store associate with the agency, a non-critical sensitive position. In June 2007, the agency informed Ingram that it was tentatively denying her eligibility for access to classified information. Moreover, the told her that this decision was based upon an investigation into her personal history and credit report. After sustaining the denial of her access to classified information, the agency proposed Ingram's demotion to a GS-05 lead store associate position, which was a non-sensitive position. In the notice of proposed demotion, the agency explained that the proposed demotion was based upon a denial of the eligibility to access classified information and to occupy a sensitive position. The demotion was effected in January 2010.

Ingram appealed her demotion to the Board. However, because of the litigation surrounding Kaplan v. Conyers and related cases, the appeal was delayed. Finally, after the Federal Circuit's decision in Conyers in August 2013, the Board ruled in Ingram's case.

In affirming Ingram's demotion, the Board focused on how the Conyers decision applied the same review standard used in cases where adverse actions are based upon revocations of security clearances. In both cases where an adverse action is based upon a security clearance revocation, or where it is based upon a denial of eligibility to occupy a sensitive position, the Board is unable to reach the merits of the adverse action. Instead, the Board can only review whether the agency afforded the employee minimum due process in carrying out the adverse action. In examining Ingram's demotion, the Board found that the Department of Defense properly gave notice to Ingram of the proposed demotion, afforded Ingram a chance to reply, and provided Ingram with a written decision upholding her demotion. Thus, the Board ruled that it had to uphold Ingram's demotion.