This recent case involves suspension of a Security Specialist—whose position was “Critical Sensitive” and required a Top Secret clearance–stemming from his arrest for voyeurism and lewdness. (Zadzielski v. Department of the Navy, CAFC No. 2011-3213 (nonprecedential), 2/17/12)
Mr. Z was employed at the Naval Air Warfare Center Aircraft Division in Lakehurst, New Jersey. About nine months into that assignment, Mr. Z was arrested “for taking pictures up women’s skirts in the lingerie department of a local department store.” (Opinion p. 2)
Mr. Z duly and promptly informed his bosses of the arrest. The next day, Navy informed Mr. Z of the intent to suspend his access to classified information, which access was required for his assignment to a sensitive position. This, in turn, led the Navy to suspend Mr. Z indefinitely without pay “pending a final security clearance decision” by the appropriate Navy office. (p. 3)
Mr. Z took his appeal to the Merit Systems Protection Board where he argued he should have been given a position involving “non-sensitive” duties or simply had his access to classified data in his current position put on hold pending a final decision on his security clearance. (p. 3)
Navy argued that reassignment under these circumstances is “not mandatory,” and the Board accepted that argument, ruling against Mr. Z.
Mr. Z took his argument to the appeals court. The court points to the “limited role” of the MSPB in security clearance cases: “It may not review an agency’s decision to suspend or revoke and individual’s security clearance…nor can it review the agency’s decision to require a security clearance for the individual’s position.” (p. 4) While the MSPB can consider whether Navy should have assigned Mr. Z to other duties not requiring a clearance, the court goes on to hold that the Board’s conclusion that the Navy had no such duty was supported by the evidence. (p. 6)
In short, the suspension of Mr. Z is affirmed.
When it comes to suspensions of security clearances and personnel actions based on those suspensions, it will be the rare case that is overturned by the MSPB or the appeals court, usually involving a failure to follow procedures.