In Gamboa v. Dept. of the Air Force, 2014 MSPB 13 (February 28, 2014), the Merit Systems Protection Board reversed the Air Force’s decision to remove the employee from federal service because the employee lost his security clearance.Gamboa occupied the non-critical sensitive, GS-6, position of supply technician.He was removed from his position based on the revocation of his security clearance; i.e. eligibility for access to classified information.The removal was based on the agency’s contention that the employee was required to maintain a security clearance as a condition of his employment and could not be reassigned because all positions were subject to this requirement.

The employee contended that his position did not require a security clearance because his position description did not specifically state that a security clearance was required, and although the agency initially suspended his access to classified information, he continued working in his position until he was removed four years later. The administrative judge affirmed the removal action based on findings that the agency presented preponderant proof that the employee’s position was subject to a security clearance and, even if this were not true, according to the AJ, the result would be the same because the employee’s position was designated as non-critical sensitive.

The Board reversed.The Board held that the agency failed to meet its burden of proving the sole charge against the employee — failure to meet a condition of employment as a result of the employee’s clearance revocation — because there was insufficient proof that the employee was required to maintain a security clearance as a condition of employment.The Board rejected the AJ’s conclusion that it was more likely to be true than untrue that the employee’s position required a security clearance because neither the employee’s position description nor the Standard Form 50s relating to his employment history evidenced a security clearance requirement, and the employee was retained in his position for nearly four years following his suspension of access to classified information.The documents the agency relied on were created as part of adjudicatory processes years after the employee’s appointment and were of limited evidentiary value.

Lastly, the Board stated that it was error for the AJ to conclude that even if the agency did not establish that the employee’s position was subject to a security clearance requirement, the charge could still be sustained because the employee occupied a non-critical sensitive position.The Board noted that it is required to adjudicate an adverse action solely on the grounds invoked by the agency and may not substitute what it considers to be a more appropriate charge.

* This information is provided by the attorneys at Passman& Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com.

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