NOTE: This disposition is nonprecedential.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 decision 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 California, 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 regarding 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 documenting 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 prehearing 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 suspension. In his opinion, the administrative judge addressed 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 administrative judge rejected that argument, relying on the declaration 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 VanDuzer 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. VanDuzer, 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 competence, 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 classified 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 information.” 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 declaration and the regulations submitted by Mr. Zadzielski 

were part of the record and available to the administrative judge in making his decision. 

While it may have been imprecise for the administrative 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 affirmative 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