Zadzielski v. Department of Navy

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
STEVEN W. ZADZIELSKI,
Petitioner,
v.
DEPARTMENT OF THE NAVY,
Respondent.
__________________________
2011-3213
__________________________
Petition for review of the Merit Systems Protection
Board in Case No. PH0752110188-I-1.
___________________________
Decided: February 17, 2012
___________________________
STEVEN W. ZADZIELSKI, of Beachwood, New Jersey,
pro se.
ANUJ VOHRA, Trial Attorney, Commercial Litigation
Branch, Civil Division, United State Department of
Justice, of Washington, DC, for respondent. With him on
the brief were TONY WEST, Assistant Attorney General,
JEANNE E. DAVIDSON, Director, and HAROLD D. LESTER,
JR., Assistant Director.
ZADZIELSKI v. NAVY 2
__________________________
Before NEWMAN and BRYSON, Circuit Judges, and FOGEL,
District Judge. 1
PER CURIAM.
DECISION
Steven W. Zadzielski petitions for review from a deci-
sion of the Merit Systems Protection Board upholding the
Navy’s action suspending Mr. Zadzielski without pay from
his position pending an investigation of his security
clearance. We affirm.
BACKGROUND
Mr. Zadzielski was employed as a Security Specialist
at the Naval Air Warfare Center Aircraft Division in
Lakehurst, New Jersey, (“NAWCAD”) beginning on
December 20, 2009. That position is designated a Critical
Sensitive position and requires a Top Secret clearance.
On September 29, 2010, Mr. Zadzielski was arrested
for voyeurism and lewdness for taking pictures up
women’s skirts in the lingerie department of a local
department store. Mr. Zadzielski reported his arrest to
the Security Team Leader at his facility on the day of the
arrest. The following day, September 30, 2010, NAWCAD
informed Mr. Zadzielski that, as a result of the arrest, it
intended to suspend his access to classified information
and assignment to a sensitive position. On October 8,
2010, NAWCAD proposed to suspend Mr. Zadzielski
1 Honorable Jeremy Fogel, District Judge, United
States District Court for the Northern District of Califor-
nia, sitting by designation.
3 ZADZIELSKI v. NAVY
indefinitely without pay based on NAWCAD’s decision to
suspend his assignment to a sensitive position and his
access to classified information. On November 22, 2010,
NAWCAD suspended Mr. Zadzielski pending a final
security clearance decision by the Department of Navy
Central Adjudication Facility.
Mr. Zadzielski appealed his suspension to the Merit
Systems Protection Board. In his appeal, he argued, inter
alia, that he should have been given “non-sensitive”
duties or had his access to classified information limited
in his current position pending a final decision regarding
his security clearance. In support of that argument, Mr.
Zadzielski attached portions of the Navy’s manual regard-
ing its Personnel Security Program, SECNAV M-5510.30.
The administrative judge who was assigned to Mr.
Zadzielski’s case conducted a telephonic prehearing
conference on April 11, 2011. A memorandum document-
ing the conference stated that “[t]he parties agree[d] to
the issue [for the hearing]: ‘Whether the Agency provided
minimum due process in taking the indefinite suspension
action.’”
At the ensuing hearing, Mr. Zadzielski referred to
“other evidence that could not be heard today,” including
evidence of Navy and Department of Defense regulations.
The administrative judge responded that in the prehear-
ing conference “we indicated that the only issue [at the
hearing] was whether the appellant was given minimum
due process rights, and that we could not get into the
merits of the appeal.”
The administrative judge upheld Mr. Zadzielski’s sus-
pension. In his opinion, the administrative judge ad-
dressed Mr. Zadzielski’s argument that he “should have
ZADZIELSKI v. NAVY 4
been reassigned to a position for which no clearance is
needed involving non-sensitive duties.” The administra-
tive judge rejected that argument, relying on the declara-
tion of Douglas Lundberg, Director of Civilian Human
Resources for the Navy, which stated that “reassignment
following loss of a security clearance is not mandatory
and the Department of the Navy has never issued and has
no plans to issue regulations” to the contrary. See Van-
Duzer v. Dep't of the Navy, 41 M.S.P.R. 357, 360-61 (1989)
(finding no duty to reassign to a non-sensitive position
after loss of security clearance, unless agency regulations
require such a duty).
DISCUSSION
In a case involving a security clearance, the Board has
a limited role to play. It may not review an agency’s
decision to suspend or revoke an individual’s security
clearance, see Dep't of the Navy v. Egan, 484 U.S. 518, 530
(1988), nor can it review the agency’s decision to require a
security clearance for the individual’s position, see Skees
v. Dep’t of the Navy, 864 F.2d 1576, 1578 (Fed. Cir. 1989).
Mr. Zadzielski, however, raises a claim that is within the
Board’s authority to consider: that the Navy should have
assigned him to duties not requiring a security clearance.
See Griffin v. Def. Mapping Agency, 864 F.2d 1579, 1580-
81 (Fed. Cir. 1989). In order to establish a right to such
an assignment, an employee must show that the agency
has a duty, imposed by statute, regulation, or policy, to
seek such a position for the employee. In the absence of
such a statute, regulation, or policy, there is no general
duty for an agency to search for a non-sensitive position
for an employee who occupies a sensitive position and
whose security clearance is suspended or revoked. Van-
Duzer, 41 M.S.P.R. at 361-62.
5 ZADZIELSKI v. NAVY
The administrative judge recognized that the question
whether the Navy had a duty to seek a non-sensitive
position for Mr. Zadzielski was within the Board’s compe-
tence, but he rejected that claim based on the declaration
by Mr. Lundberg stating that the Department of the Navy
had “no official policy requiring reassignment following
the loss of clearance or the suspension of access to classi-
fied information,” and that the Department “has never
issued, and to the best of my knowledge has no plans to
issue, regulations that would require activities to consider
reassignment of employees following the loss of a security
clearance or the suspension of access to classified infor-
mation.” The administrative judge characterized that
evidence as “unchallenged,” but did not advert to the
regulations that Mr. Zadzielski submitted. While the
issue of reassignment was not discussed at the hearing
before the administrative judge, both the Lundberg decla-
ration and the regulations submitted by Mr. Zadzielski
were part of the record and available to the administra-
tive judge in making his decision.
While it may have been imprecise for the administra-
tive judge to characterize the Lundberg statement as
“unchallenged” in light of Mr. Zadzielski’s submissions,
the regulations that Mr. Zadzielski submitted do not
establish that the Navy had a policy or a regulatory duty
to seek a non-sensitive position for an employee in his
situation. Neither in his submission to the Board nor in
his brief to this court did Mr. Zadzielski point to any
specific provision of SECNAV M-5510.30 that imposes
such a duty on the Navy. Moreover, we have reviewed the
submitted portions of SECNAV M-5510.30 and have
found nothing that creates such a duty. Our conclusion in
that regard is consistent not only with the declaration of
Mr. Lundberg, but also with previous decisions regarding
the Navy’s duty to search for non-sensitive positions when
ZADZIELSKI v. NAVY 6
an employee loses his security clearance eligibility.
Compare Skees, 864 F.2d at 1578 (no Navy regulation
creates a duty by the Navy to search for a non-sensitive
position), with Lyles v. Dep't of the Army, 864 F.2d 1581,
1583 (Fed. Cir. 1989) (Army regulation creates an af-
firmative duty by the Army to search for a non-sensitive
position). Because the evidence supports the Board’s
conclusion that the Navy had no such duty, we sustain
the Board’s decision in this case.
No costs.
AFFIRMED