[00:00:01] Speaker 02:
Okay, the last case before the court today is Wilson v. Navy, case number 153225, actually an appeal from Merit System Protection Board.

[00:00:16] Speaker 02:
Mr. Lafond, do you want five minutes?

[00:00:22] Speaker 02:
Is that right, for rebuttal?

[00:00:30] Speaker 03:
If it please the court, I'm Matthew LaFonte for the petitioner, Nicholas Wilson.

[00:00:35] Speaker 03:
I'd like to begin by discussing briefly one of the more recent, most comprehensive discussions by this court in Egan, the Kaplan v. Connors case.

[00:00:47] Speaker 03:
I was kind of hoping that Judge Wallach would be here since he was the author of that opinion.

[00:00:52] Speaker 03:
However, all the judges here have joined in the majority opinion.

[00:00:59] Speaker 03:
One of the things that the court in Kaplan recognized is that contrary to congressional intent, congressional authorization, the judiciary and the administrative agency of the Merit Systems Protection Board may not intrude upon national security matters that are necessarily within the executive prerogative.

[00:01:19] Speaker 03:
And it is our position that unlike in Egan and in Kaplan, this particular case is

[00:01:28] Speaker 03:
One of those instances that Congress has spoken very clearly as to the responsibility of, first, the Merit Systems Protection Board and of this course to examine any complaint in which an employee claims that they have not been returned back to the precise point they'd have occupied prior to their military service.

[00:01:53] Speaker 03:
And in this regard, we have seen rather

[00:01:59] Speaker 03:
Extensive parsing of several courts regarding the contours of Egan as it might interact with this.

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In this instance, what we have seen is questions regarding Title VII claims, which are a different flavor of discrimination claims, and whether those particular claims can be considered in the context of deprivation of a security clearance.

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And what we have found is a distinction between

[00:02:28] Speaker 03:
the granting of this clearance where there has been either false statements predicated upon that or, in fact, a discriminatory attempt ascribed to that.

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Now, the courts have been run away from perhaps the idea that delving into the merits of that is possible because

[00:02:54] Speaker 03:
of what is recognized as those ordinary burden shifting analysis that come up in these sorts of discrimination claims under McDonnell Douglas.

[00:03:04] Speaker 02:
The problem is I understand the USERRA overlay here and why you think that is important.

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But first of all, I'm not even sure why you believe we're in a USERRA context.

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I mean, he was already re-employed after military service.

[00:03:24] Speaker 02:
after his military service ended, correct?

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He was almost immediately thereafter, subject to a revocation of his security clearance, which was expressly stated because of his military service.

[00:03:42] Speaker 02:
Well, no.

[00:03:42] Speaker 02:
That's not how I understand the facts.

[00:03:43] Speaker 02:
I mean, it was a year after his military service was completed when all of these things happened, right?

[00:03:49] Speaker 03:
They started within a couple of weeks.

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Within a couple of weeks after

[00:03:54] Speaker 03:
the events of September 16, 2013, two people in his office began making reference to the Schenectady headquarters of Naval Reactors to say that Commander Wilson, while acting in an official capacity and performance of his military service, did something we did not like

[00:04:17] Speaker 02:
And we say that that is... But the government disputes whether he was acting in an official capacity when he did that, right?

[00:04:23] Speaker 03:
Well, he's got the documentation, which is in the Joint Appendix, that says he is performing his military duties on September 16th and through October of specified dates in which he is performing his duties as a commissioned officer of the United States Navy and armed command investigator

[00:04:47] Speaker 03:
for the Navy Yard Police where this horrific shooting took place on September 16th.

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So there is this very large body of documentation, which is his muster sheets.

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There's correspondence from the agency that he worked for as this naval commander.

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And more importantly, we have the

[00:05:16] Speaker 03:
employees in his civilian job saying, we want his security clearance revoked because of what he did while performing those duties.

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And that itself is what makes this so different than the cases.

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But even if we accept the proposition that he was on official military duty,

[00:05:41] Speaker 02:
They didn't say, we want his security clearance revoked because he was on military duty.

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They said, we want his security clearance revoked because of things that he did which are inconsistent with a security clearance.

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Performed in the course of his military duties.

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There is nothing that exists with regards to a complaint about him that does not

[00:06:09] Speaker 03:
deal with the time that he's performing his military service.

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And the strict liability under USERRA is that the service was a substantial or motivating factor in the employee's adverse action.

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And the Merit Systems Protection Board is charged with adjudicating any complaint that the federal employer has failed or refused to accord an employee rights under USERRA.

[00:06:35] Speaker 03:
And here we have

[00:06:38] Speaker 03:
The crux of the failing of the Merit Systems Protection Board is I very much appreciate the question that you're asking me, Judge O'Malley, but that never gets reached by the MSPB because they refuse to hear it.

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And this is very much also highlighted in the fact that when I bring this issue to the court, I want to start talking about Egan, and I want to start talking about what the MSPB can talk about because the MSPB

[00:07:06] Speaker 03:
in a written order says we will not hear anything that Commander Wilson has to say about the merits of this case.

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But that's all we hear in the opposition brief from the government is Commander Wilson did bad things while he was in the performance of his duties.

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And that is a disconnect which I think is intolerable here.

[00:07:32] Speaker 03:
because he is performing his military duties.

[00:07:36] Speaker 01:
And if it's a substantial, I'm sorry.

[00:07:40] Speaker 01:
I just want to ask about Egan and Hess.

[00:07:43] Speaker 01:
So in those cases, as I understand it, they say that there has to be congressional intent somehow in the statute or otherwise to that the board is supposed to review for security clearance.

[00:07:58] Speaker 01:
What are you relying on in USERA for that

[00:08:01] Speaker 01:
congressional intent.

[00:08:03] Speaker 03:
Well, let's look at what the facts are in Egan to distinguish that.

[00:08:07] Speaker 03:
And that is that in Egan, the employee goes to apply for a job for which a security clearance is required, and that the agency comes up with the conclusion that they aren't appropriate for some reason for having that security clearance.

[00:08:22] Speaker 03:
And thus, that gets appealed to a higher power

[00:08:28] Speaker 03:
saying that they abuse their discretion or there was some fault in the determination of that security clearance here.

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In the Uniform Services Employment and Reemployment Rights Act of 1994, Congress says there is strict liability for any employer who takes action, a substantial or motivating factor, an employer's adverse employment action.

[00:08:51] Speaker 03:
That sort of situation, that mandate, is not present.

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in Egan or in Egan's progeny.

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This is sort of a unique situation here.

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And that is to say, Congress has said that you must examine any complaint that deals with this person's military service.

[00:09:21] Speaker 02:
It never says... Are you saying that his military service required him to carry a weapon?

[00:09:27] Speaker 02:
Yes, it does.

[00:09:28] Speaker 02:
required him to carry a weapon on the base?

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Yeah, he was an armed... His identification is in the Joint Appendix.

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He's a member of the police department acting as an investigator.

[00:09:41] Speaker 03:
So he has... His own personal weapon?

[00:09:44] Speaker 01:
His own personal weapon.

[00:09:46] Speaker 01:
He carried his own personal weapon.

[00:09:47] Speaker 01:
No, no, no.

[00:09:48] Speaker 03:
He gets issued a weapon at

[00:09:52] Speaker 03:
when he's performing his duties.

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However, because he has Title X Apprehension Authority under the Uniform Code of Military Justice, he has afforded statutory immunities to District of Columbia and federal law with regards to carrying firearms when he's not performing those duties.

[00:10:12] Speaker 03:
And one of the things that I spoke to in the course of briefing this case is Congress's intent that persons who have these immunities

[00:10:21] Speaker 03:
are around because they create this homeland security force to respond to these catastrophic events such as what occurred at the Washington Navy Yard.

[00:10:32] Speaker 03:
So when Congress in 2004 enacted the Law Enforcement Officer Safety Act, 18 USC to 925 B and C, it says we want

[00:10:50] Speaker 03:
police officers, or other persons who we designate have this sort of discretionary law enforcement authority to necessarily include Title X, UC, NSJ, Apprehension Authority, that they are exempt from these weapons laws, that they may carry their personal firearms in off duty anywhere they want except for some limitations.

[00:11:18] Speaker 03:
And the reason that Congress

[00:11:21] Speaker 03:
gave this sweeping immunity to these officers such that they could respond to the kind of catastrophe that occurred at the Washington Navy Yard.

[00:11:31] Speaker 03:
On September 16th, we have 117 police officers respond to the Washington Navy Yard, none of which were authorized to be there, none of which were authorized to have firearms there.

[00:11:50] Speaker 03:
This is a restricted access military base, which has guards and gates keeping people from coming and going.

[00:12:00] Speaker 03:
Once the shooting started, eight different agencies and 117 people who didn't belong there went in there and defended the people who worked there and killed the guy who was doing the shooting.

[00:12:20] Speaker 03:
is what Congress envisioned when it said, we're going to have people who aren't even working right now.

[00:12:28] Speaker 03:
We're going to make sure that they're allowed to carry a firearm concealed, loaded with hollow-point bullets, ordinary police-type firearms.

[00:12:37] Speaker 03:
We're going to let them carry that just about anywhere they go in the United States because we want them to be able to respond to something like this.

[00:12:48] Speaker 03:
What happens is 117 people get commendations.

[00:12:54] Speaker 03:
There's this huge fanfare about them.

[00:12:58] Speaker 03:
And even Commander Wilson is getting commended by the chief of police and the people that he works with.

[00:13:07] Speaker 03:
He's getting a lot of fanfare about this in the weeks following the September 16 shooting.

[00:13:13] Speaker 03:
And what happens is that- You're going way into your rebuttal time.

[00:13:18] Speaker 02:
Do you want to keep it?

[00:13:19] Speaker 02:
No, I'd like to reserve my time.

[00:13:39] Speaker 00:
Good afternoon, Your Honors.

[00:13:40] Speaker 00:
I may please the court.

[00:13:42] Speaker 00:
The MSPB correctly determined that it didn't have the authority to look into the merits of the security clearance revocation under USERRA because of the Supreme Court's decision in Eagan.

[00:13:56] Speaker 00:
And thus, all the MSPB looked at was whether the procedures for the removal action were appropriately followed, it determined they did, and sustained the agency's action.

[00:14:10] Speaker 02:
removal of security clearance is used for a discriminatory purpose, driven by discriminatory animus.

[00:14:18] Speaker 02:
Is that non-reviewable?

[00:14:21] Speaker 00:
In an individual action, Your Honor, it is non-justiciable under Egan.

[00:14:27] Speaker 00:
However, the Supreme Court also has a case Webster in which there was a constitutional discrimination claim that dealt with as a policy matter

[00:14:39] Speaker 00:
was the government inappropriately discriminating against a certain class of people, and in that case, homosexuals.

[00:14:48] Speaker 00:
And there was a right of action there under Title VII.

[00:14:52] Speaker 00:
I believe it was Title VII.

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But that's not the case we have here.

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Commander Wilson is not arguing that there is a constitutional claim, but rather a claim under USERA.

[00:15:06] Speaker 00:
Under Egan, the court has made very clear that Congress must specifically state that it intends for a review of a security clearance action to be reviewed by courts, or else because of the national security considerations that are typically reserved to the executive under Article 2, those are non-justiciable.

[00:15:31] Speaker 02:
I mean, well, the Congress was pretty clear in USERRA that it wanted to give a broad range of protections to those serving in military service and for their return from military service, correct?

[00:15:44] Speaker 00:
Yes, Your Honor.

[00:15:45] Speaker 00:
However, it did not extend that specifically to reviews of security clearance determinations.

[00:15:50] Speaker 00:
And therefore, Egan applies.

[00:15:54] Speaker 01:
USERRA does have a position that it would have to be specifically stated

[00:15:59] Speaker 01:
like a broad pronouncement upon under which this could fall is not enough that the statute has to be specific and refer to security determinations?

[00:16:12] Speaker 00:
The specific word security determination wouldn't necessarily be required.

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But a general catch-all provision is not sufficient, as this court held in Hess.

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A broad sort of catch-all provision about

[00:16:29] Speaker 00:
we will hear any complaint is not sufficient.

[00:16:32] Speaker 00:
Similarly, the use of the word benefits, that something affecting the benefits of employment may be reviewed under USERRA.

[00:16:43] Speaker 00:
But a security clearance is not a benefit of employment, and thus it's not a USERRA claim to discuss the security clearance determination.

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The USERRA claim that might be viable in this case is the revocation

[00:16:59] Speaker 00:
under Section 4311 of USERRA.

[00:17:03] Speaker 00:
And that is not sufficient to get around Egan.

[00:17:06] Speaker 00:
That is exactly what happens in Section, excuse me, in Chapter 75, removal actions, that there is a removal action that's being appealed, but you cannot look at the, the board cannot look at the security clearance determination that was the predicate to the removal action.

[00:17:27] Speaker 02:
DC Circuit's decision in Radigan.

[00:17:29] Speaker 02:
Why isn't this like Radigan?

[00:17:32] Speaker 00:
Respectfully, we disagree with the court's decision in Radigan.

[00:17:37] Speaker 00:
We think Judge Kavanaugh's discussion about this is slicing and dacing the security clearance determination in an unworkable way.

[00:17:45] Speaker 00:
That's certainly the case here.

[00:17:48] Speaker 00:
And this court's decision in Kaplan v. Conner is explaining that it's not simply the narrow box of security clearance determinations, but a broader

[00:17:58] Speaker 00:
sensitive positions certainly undergirds that.

[00:18:02] Speaker 00:
In addition, Radigan would be inapplicable anyway, even if it were binding on this court, because in Radigan, the claim was for a Title VII claim for retaliation.

[00:18:20] Speaker 00:
And under that claim, the referral itself could be

[00:18:27] Speaker 00:
a viable Title VII claim.

[00:18:30] Speaker 00:
Here, the mere referral for a security clearance determination isn't a USERRA claim.

[00:18:38] Speaker 00:
Even under Commander Wilson's arguments that the removal itself, I'm sorry, not the removal, the security clearance revocation itself is a USERRA action with which we disagree with that.

[00:18:52] Speaker 00:
But this is even a step further from that.

[00:18:55] Speaker 00:
This is just the referral.

[00:18:58] Speaker 00:
And the executive expects, and this is an executive order 12968 that's referred to in some of the DC Circuit opinions, expects and encourages people to refer to national security

[00:19:17] Speaker 00:
personnel to determine security clearance, to make a security clearance determination, even if that referral may be on its face somewhat dubious, that is the responsibility of the security division or security personnel who make the security clearance determination.

[00:19:35] Speaker 00:
And that's what happened here.

[00:19:37] Speaker 00:
It's not simply a referral, but there is also a determination given in the prospective judgment

[00:19:45] Speaker 00:
of the people entrusted to make these prospective decisions, that keeping a clearance would not be clearly consistent with national security.

[00:20:00] Speaker 00:
And that's the standard.

[00:20:01] Speaker 00:
And the Supreme Court in Egan recognized that the clearly consistent standard required for that prospective judgment was incompatible with review by the courts.

[00:20:12] Speaker 00:
And that's why this type of case

[00:20:14] Speaker 00:
not justiciable.

[00:20:16] Speaker 02:
I have a little bit of a problem with your re-employment argument.

[00:20:20] Speaker 02:
You essentially argue, if you take it to its logical extreme, that if they're re-employed for any period of time before the security clearance is withdrawn, that somehow you can't fall under USERRA.

[00:20:35] Speaker 02:
Putting aside the security clearance question, I'm a little troubled by that because that could mean you could just bring somebody back for a short period of time

[00:20:43] Speaker 02:
hold off on your discriminatory action.

[00:20:46] Speaker 00:
And Your Honor, it's not our position that there would be no claim under USERRA at all.

[00:20:50] Speaker 00:
It's that there would be no claim under Section 4312 of USERRA.

[00:20:56] Speaker 00:
So those are specifically dealing with re-employment rights.

[00:21:01] Speaker 00:
But 4311 also covers not only re-employment, but also employment in the first instance, revocation,

[00:21:10] Speaker 00:
And so if there's a revocation action, there can be a USERRA claim, but it's under 43.11, not under 43.12.

[00:21:22] Speaker 00:
So as I discussed previously, the removal action could be a USERRA claim, but that

[00:21:37] Speaker 00:
falls squarely within the same analysis that the court did in Egan, that the removal action predicated on the loss of security clearance requires, looking at just whether the agency looked at whether the position required a security clearance, whether it was required to give the employee a different job without a security clearance,

[00:22:06] Speaker 00:
whether the procedures were met.

[00:22:09] Speaker 00:
And the MSPB made those determinations in this case in the context of its Chapter 75 removal appeal.

[00:22:16] Speaker 00:
And therefore, there is nothing else that the MSPB could review for the removal action portion of a USERRA claim.

[00:22:26] Speaker 00:
The security clearance, the merits of the security clearance are not reviewable under EGIN.

[00:22:32] Speaker 02:
What is your response to the friend on the other side when he says,

[00:22:36] Speaker 02:
that his military duty required him to engage in the very actions that resulted in the withdrawal of the security clearance?

[00:22:45] Speaker 00:
Well, as Your Honor noted, there is a factual dispute about the context of Commander Wilson's actions and whether he actually did act under military orders.

[00:22:59] Speaker 00:
But even putting that aside,

[00:23:03] Speaker 00:
That sort of analysis and, again, in the predictive judgment of the security personnel, whether his actions under military service were clearly consistent with the national security, that is not reviewable by this court and not reviewable by the MSPB.

[00:23:22] Speaker 00:
Because the discussion about whether

[00:23:28] Speaker 00:
whether he was carrying his personal weapon, and that's against the regulations and laws applicable.

[00:23:38] Speaker 00:
That was something for the security personnel to analyze, to review.

[00:23:44] Speaker 00:
And they did.

[00:23:44] Speaker 00:
And they made a determination.

[00:23:45] Speaker 00:
And that determination is final and not revealed by the MSPB.

[00:23:50] Speaker 00:
If there are no further questions, we respectfully request this court affirm the MSPB's decision.

[00:23:57] Speaker 00:
OK.

[00:23:57] Speaker 00:
Thank you.

[00:24:02] Speaker 03:
Thank you, Your Honor.

[00:24:02] Speaker 03:
I think we're very much getting to the crux of this question is, what is this court going to do with Ratigan?

[00:24:08] Speaker 03:
Now, I've only cited one instance of Ratigan.

[00:24:11] Speaker 03:
But in the course of the DC Circuit's litigation, we've had three separate opinions in Ratigan.

[00:24:19] Speaker 03:
And in April, we had Cerci already denied in Ratigan, all of which have a consistent holding, which is,

[00:24:28] Speaker 03:
the court may first look at the discriminatory intent in the referral and also as to false allegations in the referral.

[00:24:40] Speaker 03:
Now, there was an important part about Radigan here, which is distinguished, is in Radigan, they were reluctant to try to figure out if the agency relied upon the false statements

[00:24:56] Speaker 03:
to come to a conclusion as to their security clearance revocation.

[00:25:02] Speaker 03:
But that actually never happened in Ratigan.

[00:25:04] Speaker 03:
And that was kind of a part that got sidestepped.

[00:25:08] Speaker 03:
Instead, as was later noted by a district court case, that the court really could not reach what false statements might have been considered in this course of the security clearance revocation.

[00:25:23] Speaker 03:
because that would then delve into the merits, would invade the executive prerogative.

[00:25:27] Speaker 03:
What is distinguished here is that it goes in through the referral from the very beginning saying, we are doing this because of Commander Wilson's military service.

[00:25:40] Speaker 03:
Every single document states this is because of what Commander Wilson did in his military service.

[00:25:48] Speaker 02:
But even if you are able to

[00:25:51] Speaker 02:
to get yourself within Radigan, and even if we decided that Radigan was persuasive authority that we should adopt, even there, the DC Circuit narrowed the context of that precedent to only apply where you're talking about knowingly false referrals, right?

[00:26:09] Speaker 03:
Two things.

[00:26:11] Speaker 03:
And they're in the disjunctive.

[00:26:12] Speaker 03:
They are in the disjunctive.

[00:26:13] Speaker 03:
That is, knowingly false referrals and referrals for a discriminatory purpose.

[00:26:18] Speaker 03:
And that I am quite comfortable with.

[00:26:24] Speaker 03:
689 Federal Third, 771, for instance.

[00:26:30] Speaker 03:
That's the 2012 case.

[00:26:33] Speaker 03:
And the problem with the discriminatory purpose, again, as I said the first go around was it's really hard to delve into this McDonnell Douglas kind of

[00:26:48] Speaker 03:
Was there a discriminatory purpose?

[00:26:51] Speaker 03:
Or what this court would use as the Xi'an factors under USERA, most recently in Jones v. Health and Human Services, 834 Federal Third 361 this year by this court.

[00:27:08] Speaker 03:
You can't really try to figure out if there's a discriminatory motive without getting into the meat and potatoes of what their determination was.

[00:27:18] Speaker 03:
Here, we have a factual distinction, and everyone is saying it's because of his military service.

[00:27:26] Speaker 03:
I wanted to point to the court on JA 61.

[00:27:30] Speaker 03:
We have his military orders that say those dates signed by his commanding officer.

[00:27:36] Speaker 03:
It says that these are his records showing that he was performing military service.

[00:27:42] Speaker 03:
Judge O'Malley brought up a good point about what about if he's required for military service?

[00:27:48] Speaker 03:
Is he required to be here?

[00:27:49] Speaker 03:
And one of the things that the government says is nobody asked him to come.

[00:27:54] Speaker 03:
Nobody asked him to show up there.

[00:27:56] Speaker 03:
Nobody asked him to bring a gun onto this base.

[00:28:00] Speaker 03:
But that ignores the military concept of standing orders.

[00:28:04] Speaker 03:
And that is to say, when something bad happens, you should come here and we'll figure out what to do.

[00:28:12] Speaker 03:
That's a very ordinary standing order that a military person, upon some extraordinary event, should reach a rally point and await further orders.

[00:28:22] Speaker 03:
This is exactly what Commander Wilson does.

[00:28:25] Speaker 03:
And he's even provided with special identification by the base police there that says, I am here in case of an emergency, and I am authorized to carry a firearm.

[00:28:39] Speaker 03:
And that is what he did.

[00:28:42] Speaker 03:
USERRA prohibits the other agency from looking behind the motivation of the military, from looking at his performance in the military.

[00:28:51] Speaker 03:
They're not allowed to do that.

[00:28:53] Speaker 03:
You're not allowed to say, oh, well, you bombed children.

[00:28:56] Speaker 03:
So therefore, we're not going to let you have your job back.

[00:28:59] Speaker 03:
That's exactly what USERRA prohibits.

[00:29:02] Speaker 03:
OK, you're out of time.

[00:29:03] Speaker 03:
For these reasons and the reasons associated in our briefs, we ask that Commander Wilson be reinstated to his position with the

[00:29:11] Speaker 03:
naval reactors and that the Emerit Systems Protection Board decision be vacated.

[00:29:17] Speaker 03:
Thank you very much.