U.S. Merit Systems Protection Board 
Case Report for March 7, 2014

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Jimmy R. Gamboa
Agency:  Department of the Air Force
Decision Number:  2014 MSPB 13
Docket Number:  DE-0752-12-0197-I-1
Issuance Date:  February 28, 2014
Appeal Type:  Adverse Action by Agency
Action Type:  Removal

Removal 
 - Failure to Meet Condition of Employment
 - Proof of Security Clearance Requirement

    The appellant petitioned for review of an initial decision that affirmed his removal based on a charge of failure to maintain a security clearance.  The appellant 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; ie; eligibility for access to classified information.   The removal was based on the agency's contention that the appellant 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 appellant 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 appellant's position was subject to a security clearance and, even if this were not true, according to the administrative judge, the result would be the same because the appellant's position was designated as non-critical sensitive.
 
Holdings:  The Board granted the appellant's petition for review, vacated and reversed the initial decision, and ordered the agency to reinstate the appellant to his position.  

1. The agency failed to meet its burden of proving the sole charge of failure to meet a condition of employment as a result of the appellant's clearance revocation because there was insufficient proof that the appellant was required to maintain a security clearance, in the form of eligibility for access to classified information, as a condition of employment.  

2.  The administrative judge's conclusion that it was more likely to be true than untrue that the appellant's position required a security clearance was unsupported because neither the appellant's position description nor the appellant's Standard Form 50's relating to his employment history evidenced a security clearance requirement, and the appellant 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 appellant' appointment and are of limited evidentiary value.  

3.  The administrative judge appears to have erroneously concluded that, even if the agency did not establish that the appellant's position was subject to a security clearance requirement, the charge could still be sustained because the appellant occupied a non-critical senstive 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.  



The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

England v. Office of Personnel Management, No. 2013-3164, (Mar. 7, 2014) (MSPB Docket No. DC-0841-13-0178-I-1) (affirming Board and OPM decisions denying the appellant's request to change irrevocable retirement coverage election because she failed to establish through substantial medical evidence that she was mentally incompetent at the time she was afforded the opportunity of electing either CSRS Offset or FERS coverage)

Tottle v. Merit Systems Protection Board, No. 2013-3182 (Mar. 7, 2014) (AT-4324-12-0819-I-1) (Mar. 7, 2014) (affirming the Board jurisdictional dismissal of this probationary removal based on findings that the appellant's allegation of discrimination against him for incidents that occurred during his military service cannot be considered when raised for the first time in the PFR and, alternatively, the appellant was ineligible to file a USERRA claim because his military service included a dishonorable discharge based on a court martial conviction)

Crawford v. Merit Systems Protection Board, No. 2012-3206 (Mar. 7, 2014) (DE-315H-11-0384-I-1)(affirming the Board's jurisdictional dismissal based on findings that the appellant had limited appeal rights as a probationary employee; the appellant did not establish entitlement to reinstatement rights as a former federal empoyee; the appellant did not fit the definition of "emplolyee" because she was still serving a probationary period at the time of her removal; the appellant provided no evidence to support allegations that her termination was for preappointment reasons; and the appellant's remaining allegations did not fit the definitions of termination based on discrimination for partisan political reasons or marital status discrimination)  

Abou-Hussein v. Merit Systems Protection Board,  No. 2014-3001 (Mar. 6, 2014) (MSPB Docket No. AT-1221-11-0850-W-1) (affirming the Board's decision, which dismissed the appellant's individual right of action appeal for lack of jurisdiction because he failed to exhaust his administrative remedies with the Office of Special Counsel in that there was insufficient proof that he submitted documentation on his protected disclosures to OSC prior to closure of his case)

Soroka v. Office of Personnel Management, No. 2013-3173 (Mar. 6, 2014) (MSPB Docket No. CH-0843-11-0788-I-1) (affirming Board's decision that order of precedence of FERS lump sum death benefits provides that the benefits go first to the beneficiary designated by a signed and witnessed writing received by OPM prior to death of the employee; court and Board have no discretion to modify this statutory requirement; former wife, and not parents was entitled to the benefit because former employee never changed the signed and witnessed beneficiary form prior to death)

Franklin v. Department of Veterans Affairs, No. 2014-3042 (Mar. 4, 2014)) (MSPB Docket No. AT-0752-12-0454-I-1) (Order allowing appellant 21 days to show cause why petiton should not be dismissed as untimely)

Barnes v. Merit Systems Protection Board, No. 2014-3058 (Mar. 4, 2014) (MSPB Docket No. DC-0752-13-0025-I-1) (Order granting petitioner's motion for leave to proceed in forma pauperis)

Hicks v. United States Postal Service, No. 2014-3017 (Mar. 4, 2014) (MSPB Docket No. PH-3443-12-0485-I-1 (Order denying motion to supplement record denied, motion to amend petition denied, motion to stay granted to file petition for review in PH-3443-13-0185-I-1)     
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