Losing your job—or being told you’re about to—can feel like the floor drops out from under you. For many federal employees, the stress is amplified by the fear of retaliation, the worry that a single label (“security issue,” “not trusted,” “not fit”) will follow you, and the very real career impact that comes with a removal.
Sometimes the charge sounds official. Sometimes it involves words like “clearance” or “classified” that make it feel impossible to challenge. And sometimes you know you’ve been doing the same job for years—without access, without a clearance—and suddenly it’s the reason you’re being fired.
A published Merit Systems Protection Board (MSPB) decision shows why the details matter when an agency bases a removal on a supposed “security clearance” requirement. In Gamboa v. Department of the Air Force, the Board reversed a removal because the agency did not prove—by the evidence standard it must meet—that the employee’s position actually required a security clearance. Southworth PC did not represent any party in this matter.
Case Snapshot
Forum: Merit Systems Protection Board (final decision dated February 28, 2014)
Agency: Department of the Air Force
Position: GS-6 Supply Technician (non-critical sensitive)
Action: Removal effective December 14, 2010
Agency’s stated basis: Failure to meet a condition of employment due to revocation of “eligibility for access to classified information”
Procedural note: The decision references a prior EEO complaint and a Final Agency Decision issued February 1, 2012; the MSPB appeal was filed March 1, 2012
Outcome: Initial decision vacated; removal reversed; restoration and back pay ordered
What Happened
According to the decision, the Air Force removed a GS-6 Supply Technician from a non-critical sensitive position after the agency revoked his security clearance (described as his eligibility for access to classified information).
The employee appealed to the MSPB and argued, among other things, that his position did not require a security clearance. He pointed to the fact that his position description did not list a clearance requirement and that, even after the agency suspended his access to classified information in March 2007, he continued working for nearly four years before the removal took effect in December 2010.
An administrative judge affirmed the removal on the written record. The employee then petitioned for review. The full Board granted review, vacated the initial decision, and reversed the removal.
What the MSPB Decided—and Why
On the core removal issue, the MSPB explained that it cannot review the merits of a security-clearance decision. Instead, in a removal tied to a denied or revoked clearance, the Board’s review is limited to whether:
- the position required a clearance,
- the clearance was denied or revoked, and
- the employee received the procedural protections required for adverse actions.
Here, the Board found the agency did not prove the first point: that the Supply Technician position was subject to an established security clearance requirement. Key facts the Board relied on included:
- The position description said the job was non-critical sensitive but did not state that a security clearance was required.
- The employee’s SF-50 documenting his move into the Supply Technician job also did not mention a clearance requirement.
- The record lacked other common proof of an established requirement (for example, a vacancy announcement, a sworn affidavit from an agency official, or an agency policy announcing the requirement).
- Documents that did reference a clearance requirement were created later as part of adjudicatory processes (clearance adjudication, the removal process, and an EEO matter), years after the appointment into the position.
- The Board also found it “curious” that the agency suspended the employee’s access to classified information in March 2007 yet kept him working in the same job until the December 2010 removal decision—while claiming that any classified duties were routed to other employees.
Because the agency brought only one charge—failure to meet a condition of employment “as a result of” the clearance revocation—and did not prove the clearance requirement for the position, the Board reversed the removal and ordered restoration and back pay.
Why This Matters for Federal Employees
Security-clearance language can be intimidating, and it can feel like there is nothing you can do. This decision highlights a practical reality: even where the MSPB cannot second-guess the substance of a clearance determination, the agency still has to prove the job requirement it claims justified the adverse action.
It also underscores that “sensitive” does not automatically mean “clearance-required.” The Board emphasized that not all sensitive positions require a security clearance or access to classified information.
Finally, the decision is a reminder that federal cases can involve overlapping processes—like the EEOC federal sector process alongside the MSPB forum—especially when discrimination or retaliation allegations are part of the background.
Key Takeaways
Separate the question of clearance eligibility from whether the job actually requires a clearance. Focus on what the agency charged; the MSPB decides the case on the grounds the agency invoked.
Compare official personnel documents (position descriptions, SF-50s) against later-created litigation paperwork. Question gaps in the record when an agency claims a requirement but cannot point to contemporaneous proof.
Document how work was handled if access was suspended but the employee remained on duty for years. Remember that pro se employees may not know the clearance process—and the Board may account for that context.
Practical Next Steps
If you are facing discipline or removal connected to a security clearance, consider these general, practical steps:
- Preserve your position description, SF-50s, performance documents, and any notices referencing clearance or access.
- Build a clean timeline of events (dates of suspension of access, proposals, decisions, and any related EEO filings).
- Identify witnesses who can explain what duties you performed and whether classified work was reassigned.
- Save emails and letters showing what management said the requirements were—and when they first said it.
- Stay professional in writing; assume your communications may later be read by a decision-maker.
- Learn the basics of MSPB appeals and how “mixed cases” can create overlapping forums.
- Consider speaking with counsel early, because deadlines in federal employment matters can be short and fact-specific. If retaliation is part of what you’re experiencing, a federal employee retaliation attorney can help evaluate the process options in general terms.
Depending on your situation, you may also want to learn about EEOC retaliation, FMLA and disability discrimination, and Office of Special Counsel (OSC) whistleblower protection as related concepts that sometimes overlap with discipline and removals.
A Word From Southworth PC Leadership
“When an agency ties your job to a clearance requirement, the paper trail matters. Federal employees deserve a process grounded in real evidence—not assumptions.” — Shaun Southworth, Co-Owner of Southworth PC
How Federal Employment Attorneys Can Help
A removal or proposed removal can move fast, and it often comes with confusing terminology and overlapping forums. Support from experienced counsel can include:
Reviewing the agency’s stated charge and the evidence it is (and is not) relying on, identifying the documents that typically establish a condition of employment (like a clearance requirement), explaining, at a high level, how MSPB appeals work and what issues the MSPB can and cannot review, coordinating strategy when EEO issues are present—sometimes alongside a federal employee EEO attorney—while keeping the focus on the facts in the record, and helping you present a clear timeline and credible supporting materials, including witness statements where appropriate.
Some matters also involve MSPB wrongful termination issues, or allegations of disability discrimination under the Rehabilitation Act or retaliation for protected activity. Federal employee attorneys can help you understand the forums, the record, and what procedural protections may apply—without promising any particular outcome.
Working with attorneys for federal employees can be especially valuable when the situation involves multiple moving parts: personnel documentation, clearance-related allegations, and potential parallel processes.
Talk With Our Team
Southworth PC represents and advises federal employees in high-stakes workplace matters, including MSPB-related removals and EEO-connected disputes, serving federal employees nationwide and abroad. Use the contact form below to reach Southworth PC.
If you are looking for attorneys for federal employees who can help you understand your options and next steps (general information, not legal advice), our team can talk through the process and help you plan a path forward.
FAQ
Can the MSPB review why my security clearance was revoked?
In cases like the one discussed here, the MSPB explained that it does not review the substance of the clearance determination. Instead, it focuses on whether the job required a clearance, whether the clearance was denied or revoked, and whether the employee received required procedural protections.
What’s the difference between a security clearance and access to classified information?
The decision described a “security clearance” as a determination that a person is eligible for access to classified information. It also noted that actual access is separate and is granted by command on a need-to-know basis.
What kind of evidence can show a job really required a clearance?
In this case, the MSPB emphasized the absence of a clearance requirement in the position description and the employee’s SF-50. The Board also noted the lack of other proof such as a vacancy announcement, sworn statements, or an agency policy establishing the requirement.
When should someone talk with MSPB Attorneys?
If you are facing a proposed removal, a removal, or another serious adverse action, it can help to consult early to understand the forum, the record, and how the MSPB limits its review in clearance-related cases. MSPB Lawyers can also help explain how “mixed case” issues (where discrimination allegations exist) may affect the path forward.
Where can I read more about the rules that apply to federal sector EEO cases?
For general reference materials (not legal advice), many employees start with resources like the MSPB official site and eCFR 29 CFR Part 1614. If disability issues are part of your situation, you may also see the EEOC Rehabilitation Act (Sections 501 and 505) discussed in federal sector guidance, and leave issues may point you to the DOL FMLA page.
Disclaimer
This post is for informational purposes only and is not legal advice. Reading this post does not create an attorney-client relationship. Outcomes depend on the specific facts and evidence in each case. Southworth PC did not represent any party in this matter. Southworth PC handles matters for federal employees.