                         UNITED STATES OF AMERICA
                      MERIT SYSTEMS PROTECTION BOARD
                                      2015 MSPB 48

                            Docket No. DC-0752-15-0038-I-1

                                 Nicholas Jay Wilson,
                                       Appellant,
                                            v.
                               Department of the Navy,
                                         Agency.
                                      August 5, 2015

           Matthew August LeFande, Arlington, Virginia, for the appellant.

           David B. Gattis, Washington, D.C., for the agency.

                                        BEFORE

                            Susan Tsui Grundmann, Chairman
                               Mark A. Robbins, Member



                                OPINION AND ORDER

¶1         The appellant has filed a petition for review of the initial decision, which
     sustained his removal based on the revocation of his security clearance. For the
     reasons set forth below, we DENY the petition for review for failure to meet the
     Board’s criteria for review. See 5 C.F.R. § 1201.115.

                                     BACKGROUND
¶2         Effective September 20, 2014, the agency removed the appellant from his
     position as a Resource Analyst, GS-14, based on the revocation of his security
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     clearance. 1 Initial Appeal File (IAF), Tab 5 at 22-26. The appellant filed an
     appeal with the Board regarding his removal and requested a hearing.                 IAF,
     Tab 1.
¶3            On appeal, the appellant asserted that the agency’s decision to revoke his
     security     clearance   violated   the   Uniformed      Services    Employment       and
     Reemployment Rights Act of 1994 (codified at 38 U.S.C. §§ 4301-4333)
     (USERRA) and that, therefore, its removal action also violated USERRA. 2 IAF,
     Tab 11. During a status conference, the administrative judge informed the parties
     that the Board lacks authority to consider claims of discrimination and reprisal in
     the context of an appeal from a removal based on the revocation of a security
     clearance. IAF, Tab 9. However, because the appellant asserted that the instant
     appeal is distinguishable from such cases, the administrative judge afforded the
     parties an opportunity to file briefs regarding this issue. Id. After considering
     the parties’ submissions, the administrative judge issued an order ruling that she
     would neither allow discovery, nor hear any witnesses or evidence, as to the
     appellant’s claim that the agency revoked his security clearance and removed him
     based on his military service. IAF, Tab 13.



     1
       Although employed by the Department of the Navy (Navy), because of the nature of
     the appellant’s position involving nuclear material, decisions regarding his security
     clearance were made by the Department of Energy. Initial Appeal File (IAF), Tab 5
     at 141-46.
     2
       The stated security concerns included that the appellant: (1) knowingly introduced his
     personal firearm onto a United States Navy facility on multiple occasions, contrary to
     Navy regulations and specific directions he had received; (2) armed himself with his
     personal weapon while performing duties as a Metropolitan Police Department (MPD)
     reserve officer, contrary to regulations, on numerous occasions; and (3) made false
     statements and false time and attendance entries regarding his activities for his civilian
     employer, the Naval Reserve Unit, and the MPD, on numerous occasions. IAF, Tab 5
     at 141-46. The appellant appears to assert that the security clearance revocation was
     based on his military service because many of these actions took place during the
     course of his performance of duties as a Naval Reservist. See IAF, Tab 11 at 5.
                                                                                            3

¶4         Subsequently, after holding the requested hearing, the administrative judge
     issued an initial decision affirming the agency’s removal action. IAF, Tab 33,
     Initial Decision (ID). She found that: (1) a security clearance was required for
     the appellant’s position; (2) the appellant’s security clearance was revoked;
     (3) proper procedures were followed in revoking the appellant’s clearance, and
     the agency afforded him the procedural protections of 5 U.S.C. § 7513(b) in
     effectuating his removal; and (4) the agency was not required to transfer the
     appellant to a nonsensitive position. 3      ID at 4-11.     She also found that the
     agency’s removal action promoted the efficiency of the service. 4 ID at 11.
¶5         The appellant has filed a petition for review. Petition for Review (PFR)
     File, Tab 1. In it, he argues that he should have “been permitted to introduce
     evidence as to the discriminatory nature of the revocation of his security
     clearance.”   Id. at 5.   He also indicates that he is not making a “claim of a
     procedural failing in the security clearance revocation process.”            Id. at 10.
     Rather, he emphasizes, his claim is that “the revocation itself violates USERRA.”
     Id. (emphasis in original).
¶6         Disputing the applicability of Board precedent, he contends that Congress
     intended for USERRA to be broadly construed, such that the Board is permitted
     to review the merits of the revocation of his security clearance insofar as that
     decision was impermissibly based on his military service.                 Id. at 7-16.

     3
       The appellant does not challenge these findings in his petition for review, and we
     discern no basis for disturbing them on review.
     4
       The appellant also alleged below that the revocation of his security clearance was
     designed to prevent him from competing for a GS-15 position and, therefore,
     constituted a prohibited personnel practice. IAF, Tab 1 at 6. The disposition of this
     claim is unclear from the record, though it seems that the administrative judge’s
     January 6, 2015 order regarding affirmative defenses disposed of it. See IAF, Tab 13.
     The appellant does not raise any argument regarding this claim on review. However, to
     the extent that the January 6, 2015 order was not sufficiently explicit as to this claim,
     we note that the Board is precluded from reviewing this claim for the same reasons,
     discussed herein, that preclude it from reviewing his USERRA claim.
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     Accordingly, he asserts, the Supreme Court’s decision in Department of the Navy
     v. Egan, 484 U.S. 518 (1988), which holds that the Board lacks authority to
     review the merits of a security clearance determination in an appeal from an
     action taken under 5 U.S.C. § 7513, is inapplicable to USERRA claims. Id. at 10,
     13-14. He also cites Staub v. Proctor Hospital, 562 U.S. 411, 422 (2011), which
     holds that an employer is liable under USERRA if a supervisor performs an act
     motivated by antimilitary animus with the intention to cause an adverse
     employment action and that act is the proximate cause of the ultimate
     employment action. The appellant argues that because the agency revoked his
     security clearance based on his military service, and that revocation was the
     proximate cause of his removal, the Board must examine the merits of that
     revocation in order to determine whether his removal violated USERRA. 5 PFR
     File, Tab 1 at 11. The agency filed a response, to which the appellant replied.
     PFR File, Tabs 3-4.

                                           ANALYSIS
¶7         In Egan, the Supreme Court held that, unless Congress specifically
     provides otherwise, the Board lacks the authority to review adverse security
     clearance determinations. Roach v. Department of the Army, 82 M.S.P.R. 464,
     ¶¶ 50, 52 (1999); see Egan, 484 U.S. at 530. The Court found that 5 U.S.C.
     chapter 75 did not specifically grant the Board such authority. Egan, 484 U.S.
     at 530; Roach, 82 M.S.P.R. 464, ¶ 50. In finding that this statute did not confer
     such authority to the Board, the Court noted that a denial of a security clearance


     5
       The appellant also states that the agency has failed to provide him with a “position of
     like seniority, status and pay at another Federal executive agency,” in violation of
     38 U.S.C. § 4313. PFR File, Tab 1 at 7. We presume that he is actually referring to
     38 U.S.C. § 4314. This statutory provision has no applicability in the instant appeal. It
     relates to the Federal government’s obligations when an employee returns to his civilian
     Federal position following a period of uniformed service, which is not the issue in this
     case.
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      is not an adverse action under chapter 75 and is not, by its own force, subject to
      Board review. See Egan, 484 U.S. at 530; see also 5 U.S.C. § 7512. It further
      found     that,      when     an     agency     removes     an     employee    for   cause
      under 5 U.S.C. § 7513 based on the denial of a required security clearance,
      nothing in the Civil Service Reform Act of 1978 authorizes the Board to review
      the merits of the denial. Egan, 484 U.S. at 530.
¶8            Here, the agency cited 5 C.F.R. Part 752, which implements chapter 75,
      subchapter II, as the authority for the appellant’s removal. IAF, Tab 5 at 22;
      see 5 U.S.C. § 7514. Thus, Egan is clearly applicable here. We simply do not
      have the authority to look behind the security clearance determination in this
      chapter 75 removal appeal.
¶9            We are not persuaded by the appellant’s arguments to the contrary. First,
      the Supreme Court in Egan drew no distinction between the merits and
      affirmative       defenses   in    precluding   Board     review   of   security clearance
      determinations.       See Pangarova v. Department of the Army, 42 M.S.P.R. 319,
      322-23 (1989) (citing Egan, 484 U.S. at 530-32). 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, 42 M.S.P.R. at 322.                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).
¶10           In addition, USERRA does not authorize the Board to review security
      clearance determinations.          See generally 38 U.S.C. chapter 43; see also Egan,
      484 U.S. at 530. The appellant asserts that USERRA contains such authorization
      because it states that the Board “shall adjudicate any complaint” brought before it
      under USERRA.          PFR File, Tab 1 at 10; see 38 U.S.C. § 4324(c)(1).            This,
      however, is not an explicit authorization.                See Hesse v. Department of
                                                                                               6

      State, 217 F.3d 1372, 1378 (Fed. Cir. 2000) (finding that a “catch-all clause”
      in 5 U.S.C. § 2302 does not constitute a specific statement of congressional intent
      to allow Board review of security clearance determinations in the context of a
      whistleblower retaliation claim); Roach, 82 M.S.P.R. 464, ¶ 52 (finding authority
      lacking     to   review    security    clearance   determinations   absent   a     specific
      unmistakable expression of congressional intent to confer such authority).
¶11          Based on the foregoing, we lack the authority to consider the appellant’s
      USERRA claim relating to the revocation of his security clearance as an
      affirmative defense raised in the context of his chapter 75 removal appeal and we
      also   lack      jurisdiction   over   the   claim   as   a   separate   appeal.       See
      Roach, 82 M.S.P.R. 464, ¶ 48 (holding that the Board lacked jurisdiction over the
      appellant’s claim relating to the suspension of his security clearance as either an
      individual right of action appeal or a whistleblowing retaliation affirmative
      defense in a chapter 75 appeal). Accordingly, we DENY the appellant’s petition
      for review. We find no error in the administrative judge’s decision to preclude
      the appellant from taking discovery and introducing evidence regarding the merits
      of the revocation of his security clearance.         The initial decision, therefore, is
      affirmed.

                                                ORDER
¶12          This is the final decision of the Merit Systems Protection Board in this
      appeal.     Title 5 of the Code of Federal Regulations, section 1201.113(c)
      (5 C.F.R. § 1201.113(c)).

                           NOTICE TO THE APPELLANT REGARDING
                              YOUR FURTHER REVIEW RIGHTS
             You have the right to request review of this final decision by the United
      States Court of Appeals for the Federal Circuit. You must submit your request to
      the court at the following address:
                                                                                  7

                               United States Court of Appeals
                                   for the Federal Circuit
                                 717 Madison Place, N.W.
                                  Washington, DC 20439

The court must receive your request for review no later than 60 calendar days
after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec. 27,
2012). If you choose to file, be very careful to file on time. The court has held
that normally it does not have the authority to waive this statutory deadline and
that filings that do not comply with the deadline must be dismissed. See Pinat v.
Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
         If you need further information about your right to appeal this decision to
court, you should refer to the Federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States     Code,    at   our     website,   http://www.mspb.gov/appeals/uscode/htm.
Additional         information         is      available        at   the     court’s
website, www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide
for Pro Se Petitioners and Appellants,” which is contained within the
court’s Rules of Practice, and Forms 5, 6, and 11.
         If you are interested in securing pro bono representation for an appeal to
the United States Court of Appeals for the Federal Circuit, you may visit our
website at http://www.mspb.gov/probono for information regarding pro bono
representation for Merit Systems Protection Board appellants before the Federal
Circuit. The Merit Systems Protection Board neither endorses the services
                                                                                8

provided by any attorney nor warrants that any attorney will accept representation
in a given case.



FOR THE BOARD:


______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.
