  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, Washing-
ton, 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 termi-
nated 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) knowing-
ly 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 revoca-
tion 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 remov-
al. Wilson filed a response to the Navy’s proposal, argu-
ing 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 re-
voked. She answered both of those questions in the
affirmative and Wilson does not dispute those conclu-
sions.
    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, rea-
sonable time to answer, notification of the right of repre-
sentation 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 securi-
ty 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 proce-
dures were consistent with agency policy, the AJ sus-
tained 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 ar-
gued that the agency revoked his security clearance based
on his military service, and the revocation was the proxi-
mate cause of his dismissal; therefore, the Board must
examine the merits of the revocation to determine wheth-
er 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 re-
    late 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. Depart-
    ment 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 rea-
    sons for revocation of a security clearance).
Wilson, 122 M.S.P.R. at 589. Unless Congress has specifi-
cally authorized otherwise, the Board held, it cannot
review security clearance determinations. Wilson’s asser-
tion that USERRA did offer such authorization was
rejected; the Board found USERRA’s “[s]hall adjudicate
any complaint” language insufficiently explicit to “consti-
tute 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 au-
thority 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 “initiat-
ed” based on a discriminatory motivation without review-
ing 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 argu-
ments 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 author-
ity 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 dis-
tinction without a difference. The core of Wilson’s allega-
tion 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 trustworthi-
ness 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 determina-
tions” 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 re-
   porting and referral claims altogether, as the gov-
   ernment 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 ex-
   tent possible Title VII’s important protections
   against workplace discrimination and retalia-
   tion.’ . . . Title VII claims based on knowingly false
   reporting present no serious risk of chill, [so] we
   believe that claims of knowingly false security re-
   ports 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” require-
ment 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 ser-
vices.” 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
