Navy Had No Duty to Give Employee “Non-Sensitive” Duties Pending Investigation of His Security Clearance Where Statute, Regulation or Policy Does Not Impose Such a Duty, Federal Circuit Rules

The Department of the Navy had no duty to give an employee “non-sensitive” duties pending an investigation of his security clearance where a statute, regulation, or policy does not impose such a duty on the agency, the Federal Circuit ruled last week.

In this case, the employee worked at the Naval Air Warfare Center Aircraft Division (“NAWCAD”) as a Security Specialist, which requires a Top Secret clearance. In September 2010, the Security Specialist was arrested for voyeurism and lewdness for taking pictures up women’s skirts in the lingerie department of a local department store. The Security Specialist reported his arrest to the agency the same day. The next day, NAWCAD informed him that because of the arrest, it intended to suspend his access to classified information and assignment to a sensitive position. Soon thereafter, NAWCAD proposed to suspend the Security Specialist indefinitely without pay based on NAWCAD’s decision to suspend his assignment to a sensitive position and his access to classified information. In November 2010, NAWCAD suspended the Security Specialist pending a final security clearance decision by the Department of Navy Central Adjudication Facility, prompting the employee to appeal to the U.S. Merit Systems Protection Board (“the Board”).

Before the Board, the Security Specialist contended 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, the Security Specialist attached portions of the Navy’s manual regarding its Personnel Security Program, SECNAV M-5510.30. The suspension was upheld by the Board, however, prompting him to appeal to the Federal Circuit.

In a decision issued last week, the Federal Circuit explained that in cases 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, nor can it review the agency’s decision to require a security clearance for the individual’s position. The Security Specialist, however, did raise 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.

In order to establish a right to such an assignment, the Federal Circuit stated that 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.

The Federal Circuit went on to say that the regulations that the Security Specialist cited in his appeal 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 the Federal Circuit did the Security Specialist point to any specific provision of SECNAV M-5510.30 that imposes such a duty on the Navy. Moreover, the appeals court stated that it reviewed the submitted portions of SECNAV M-5510.30 and found nothing that creates such a duty. Thus, the Federal Circuit concluded that, although other agencies, such as the Army, have regulations in place creating an affirmative duty by the agency to search for a non-sensitive position in these kinds of cases, the evidence showed that the Navy had no such duty. Accordingly, the Federal Circuit sustained the Board’s suspension of the Security Specialist without pay from his position pending an investigation of his security clearance.

The case is Zadzielski v. Dep’t of the Navy, U.S. Court of Appeals for the Federal Circuit, No. 2011-3213, February 17, 2012.

Posted in Case Law Update

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