United States Court of Appeals 

for the Federal Circuit ______________________ 

NICHOLAS JAY WILSON,

Petitioner

v.

DEPARTMENT OF THE NAVY,

Respondent

______________________ 

2015-3225

______________________ 

Petition for review of the Merit Systems Protection 

Board in No. DC-0752-15-0038-I-1.

______________________ 

Decided: December 7, 2016

______________________ 

MATTHEW AUGUST LEFANDE, Matthew August 

LeFande Attorney at Law PLLC, Arlington, VA, argued 

for petitioner.

RENEE BURBANK, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, Washington, DC, argued for respondent. Also represented by 

BENJAMIN C. MIZER, ROBERT E. KIRSCHMAN, JR.,

ELIZABETH M. HOSFORD. 

______________________ 

Before O’MALLEY, MAYER, and STOLL, Circuit Judges.
2 WILSON v. NAVY

O’MALLEY, Circuit Judge.

Nicholas Wilson (“Wilson”) seeks review of the Merit 

Systems Protection Board’s (“the Board”) decision denying 

his request for corrective action under the Uniformed 

Services Employment and Reemployment Rights Act of 

1994 (“USERRA”), 38 U.S.C. § 4301, et seq. Specifically, 

Wilson alleged that the Department of Energy (“the 

DOE”) improperly revoked his security clearance, and the 

Department of the Navy (“the Navy”) improperly terminated his employment thereafter. The Board rejected 

Wilson’s claims, finding that it lacked the authority to 

review adverse security clearance determinations and 

that the Navy had not acted improperly in terminating 

Wilson given the revoked clearance. Wilson v. Dep’t of the 

Navy, 122 M.S.P.R. 585 (2015). For the following reasons, 

we affirm. 

BACKGROUND

A. Clearance Revocation and Termination

Wilson worked as a civilian Resource Analyst at the 

Nuclear Propulsion Directorate at the Naval Sea Systems 

Command, a position that required him to hold a DOE

security clearance (“Q clearance”). On January 8, 2014, 

the DOE suspended Wilson’s security clearance. The 

DOE listed as security concerns that Wilson: (1) knowingly brought a personal firearm onto a Navy facility in 

violation of regulations and directions he received; 

(2) armed himself with a personal weapon while acting as 

a Metropolitan Police Department (“MPD”) reserve officer, 

contrary to regulations; and (3) made false statements

and false time and attendance entries to his civilian 

employer, the Naval Reserve Unit and the MPD. Wilson 

maintains that he brought his firearm to the Navy facility 

in response to the Washington Navy Yard shooting that 

occurred on September 16, 2013, in perceived fulfillment 

of his duty as a Navy Reservist. 
WILSON v. NAVY 3

Wilson argued to the DOE that the clearance revocation was based on his service as a Naval Reservist, in 

violation of USERRA. Unpersuaded, on July 25, 2014, 

the DOE revoked Wilson’s security clearance. On July 29, 

2014, based on the DOE’s revocation, Wilson’s supervisor 

at the Department of the Navy proposed Wilson’s removal. Wilson filed a response to the Navy’s proposal, arguing that the revocation violated USERRA and his due 

process rights. Nevertheless, on September 12, 2014, the 

Navy removed Wilson from federal service because he no 

longer had the security clearance that was a prerequisite 

for his position. Wilson appealed to the Board. 

B. The AJ’s Initial Decision

In an initial decision, the administrative judge (“AJ”) 

determined that the Board did not have authority to 

consider claims of discrimination or reprisal in the context 

of an appeal from a removal based on security clearance

revocation. In particular, the AJ stated that she would 

not allow discovery, hear witnesses, or consider evidence 

regarding Wilson’s USERRA defense, as it was entirely 

premised on the allegedly improper revocation. The AJ 

determined that she could only decide the facts of: 

(1) whether Wilson’s security clearance was required for 

his former position, and (2) whether it was actually revoked. She answered both of those questions in the 

affirmative and Wilson does not dispute those conclusions. 

Additionally, because Wilson alleged that the Navy 

violated his due process rights, the AJ examined whether 

the Navy provided him the procedural protections of 

5 U.S.C. § 7513(b): 30 days advance written notice, reasonable time to answer, notification of the right of representation by an attorney, and provision of a written 

decision detailing the agency’s reasoning. Looking to the 

record, the AJ found that the Navy proposed Wilson’s 

removal in writing, gave him a reasonable time to re-
4 WILSON v. NAVY

spond, notified Wilson of his right to an attorney, and 

provided a written decision as to the agency’s reasoning. 

The AJ also found that the Navy did not have a policy or 

regulation to reassign employees to alternate positions 

that do not require a security clearance. Absent such a 

policy, the AJ concluded, the Navy was not required to 

reassign Wilson to a position that did not require a security clearance. See Griffin v. Def. Mapping Agency, 864 

F.2d 1579, 1580–81 (Fed. Cir. 1989) (“[I]f the Defense 

Mapping Agency had an ‘existing policy,’ manifested by 

regulation, to transfer applicants who unsuccessfully seek 

a security clearance to nonsensitive positions if available, 

it could be held to that policy and the Board could review 

its efforts. In the absence of this policy, the Board has no 

role.”). Because the investigation and subsequent procedures were consistent with agency policy, the AJ sustained the agency’s decision. Wilson appealed.

C. Appeal to the Board

The Board issued its final decision on August 5, 2015. 

Wilson had argued that the AJ’s decision to not allow 

discovery, hear witnesses, or consider evidence regarding 

his USERRA defense was in error. USERRA, Wilson 

argued, was intended to be broadly construed—such that 

the Board could (and should) review the merits of his 

security revocation because it constituted a violation of 

USERRA. Wilson also noted that he did not claim there 

was a procedural violation in the course of the agency’s 

revocation of his security clearance, but rather that the 

revocation itself violated USERRA. That is, Wilson argued that the agency revoked his security clearance based 

on his military service, and the revocation was the proximate cause of his dismissal; therefore, the Board must 

examine the merits of the revocation to determine whether there was a violation of USERRA. 

The Board noted at the outset that it could not review 

agency revocations of security clearances because such
WILSON v. NAVY 5

revocations are not considered adverse actions. The 

Board relied in particular on Department of the Navy v. 

Egan, 484 U.S. 518 (1988), stating:

The Board has thus interpreted Egan to preclude 

review of allegations of prohibited discrimination 

and reprisal when such affirmative defenses relate to the revocation of a security clearance. 

Pangarova [v. Dep’t of the Army], 42 M.S.P.R. 

[319], 322 [(1989)]. Our reviewing court also has 

taken this approach. See, e.g., Adams v. Department of Defense, 688 F.3d 1330, 1334 (Fed. Cir. 

2012) (stating that neither the Federal Circuit, 

nor the Board, has authority to review a charge 

that retaliation and discrimination were the reasons for revocation of a security clearance).

Wilson, 122 M.S.P.R. at 589. Unless Congress has specifically authorized otherwise, the Board held, it cannot 

review security clearance determinations. Wilson’s assertion that USERRA did offer such authorization was 

rejected; the Board found USERRA’s “[s]hall adjudicate 

any complaint” language insufficiently explicit to “constitute a specific statement of congressional intent.” Id.

(citing Hesse v. Dep’t of State, 217 F.3d 1372, 1378 (Fed. 

Cir. 2000)). The Board thus held that it lacked the authority to consider Wilson’s USERRA claim as it related 

to the revocation of his security clearance, and denied 

Wilson’s petition for review, finding no error in the AJ’s 

decision. Wilson timely appealed to this court, and we 

have jurisdiction pursuant to 5 U.S.C. § 7703(b)(1)(A).

DISCUSSION

The scope of our review in an appeal from a decision 

of the Board is limited. We must affirm the Board’s 

decision unless it is “(1) arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law; 

(2) obtained without procedures required by law, rule, or 
6 WILSON v. NAVY

regulation having been followed; or (3) unsupported by 

substantial evidence.” 5 U.S.C. § 7703(c). 

Wilson maintains on appeal that the Board should 

have reviewed whether the security clearance revocation 

was in violation of USERRA. Specifically, he argues that: 

(1) USERRA necessarily authorizes review of security 

clearance determinations, (2) alternatively, the Board 

could have reviewed whether his revocation was “initiated” based on a discriminatory motivation without reviewing the merits of the revocation itself, and (3) irrespective 

of his revocation, he was entitled to reemployment in a 

similar position under USERRA. None of these arguments are persuasive.

In Egan, the Supreme Court “established that MSPB 

review of an agency’s denial or revocation of a security 

clearance is limited to determining whether the agency 

provided minimal due process protection.” Adams v. Dep’t 

of Def., 688 F.3d 1330, 1334 (Fed. Cir. 2012) (citing Egan, 

484 U.S. at 529–31). That is the well-established limit of 

our review; “neither this court nor the [Board] has authority to review the charge that . . . discrimination w[as] the 

reason[] for revocation of the security clearance.” Id. 

Congress has not “specifically . . . provided otherwise” in 

this case, because USERRA makes no mention of security 

clearances, explicitly or otherwise. Egan, 484 U.S. at 530. 

Nor does Wilson—relying solely on USERRA on appeal—

raise a constitutional claim that might transcend these 

limitations. See, e.g., Dubbs v. CIA, 866 F.2d 1114, 1120 

(9th Cir. 1989) (permitting review of a security clearance 

determination on Equal Protection grounds). 

Wilson’s shift in the alternative to the initiation of 

revocation—as opposed to the “merits”—relies on a distinction without a difference. The core of Wilson’s allegation is that his security clearance revocation was initiated 

based on “false” complaints and accusations. Because the 

DOE’s security determination was based on the infor-
WILSON v. NAVY 7

mation contained therein, it evaluated the trustworthiness of those statements as part of its determination—

and specifically found them reliable. If the Board—or this 

court—were to reverse or remand on the basis that those 

statements were false, it would therefore necessarily

involve “second-guessing . . . national security determinations” in abrogation of Egan. Kaplan v. Conyers, 733 F.3d 

1148, 1155 (Fed. Cir. 2013). 

Wilson’s reliance on Rattigan v. Holder, 689 F.3d 764 

(D.C. Cir. 2012), is misplaced. In Rattigan, the D.C. 

Circuit stated:

The question, then, is whether we must bar reporting and referral claims altogether, as the government urges, or whether we can sufficiently 

minimize the chilling effect of Title VII liability by 

narrowing the scope of such claims. We ask this 

question because it is our duty not only to follow 

Egan, but also to ‘preserv[e] to the maximum extent possible Title VII’s important protections 

against workplace discrimination and retaliation.’ . . . Title VII claims based on knowingly false 

reporting present no serious risk of chill, [so] we 

believe that claims of knowingly false security reports or referrals can coexist with Egan . . . . 

Rattigan, 689 F.3d at 770 (quoting Rattigan v. Holder, 

643 F.3d 975, 984 (D.C. Cir. 2011)). Even if this court 

were to follow the approach set forth in Rattigan, which 

we are not required to do, the “knowingly false” requirement of Rattigan has not been met here given the DOE’s 

findings of reliability. 

Nor is Wilson entitled to reemployment independent 

of his USERRA discrimination claim. USERRA does 

provide a right to reemployment following “absence . . . 

necessitated by reason of service in the uniformed services.” 38 U.S.C. § 4312(a). But when an employee has

returned to employment and is subsequently terminated
8 WILSON v. NAVY

due to antimilitary animus, no claim exists under § 4312, 

even if a claim for discrimination under § 4311 might 

otherwise be available. See Pittman v. Dep’t of Justice, 

486 F.3d 1276, 1279–80 (Fed. Cir. 2007). Wilson does not 

dispute either that he returned to work after his alleged 

military service or that the only reemployment claim he 

asserted was under § 4312. He thus has not asserted an 

actionable reemployment claim. 

Accordingly, after careful consideration, we find no 

error in the Board’s decision. 

AFFIRMED