Sixth Circuit Rules National Security Exemption Inapplicable to Rehabilitation Act
After failing a pulmonary function test – a requirement imposed to maintain medical clearance – a Tennessee Valley Authority employee was discharged by the agency. After he brought a disability discrimination claim to district court under the Americans with Disabilities Act and the Rehabilitation Act, the agency moved for summary judgment, arguing that the court lacked jurisdiction under Title VII’s “national-security exemption” and the “Egan doctrine.”
The district court disagreed with the agency, but certified the case for interlocutory review by the Sixth Circuit Court of Appeals. On December 29, 2016, the Sixth Circuit denied the agency’s interlocutory appeal.
The employee, who had been employed by TVA since 2009, lost his medical clearance after the pulmonary function test was made a requirement to maintain a clearance in 2013. His claims alleged that the agency failed to accommodate his disability under the Americans with Disabilities Act and the Rehabilitation Act, which prohibits federal agencies from discriminating against their employees on the basis of disability. But the agency argued that Title VII’s national-security exemption precluded the court from reviewing the physical fitness requirements imposed by the Nuclear Regulatory Commission (“NRC”) on TVA employees in the “interests of national security.”
The district court disagreed with the agency’s summary judgment argument, finding that neither the Rehabilitation Act nor any provisions of Title VII mentioned the national-security exemption. The district court also disagreed with the agency’s argument regarding the Egan doctrine, holding that nothing in Department of the Navy v. Egan, 484 U.S. 518 (1988) indicated an intent for its doctrine to apply outside of the context of security clearances. However, due to the “importance of the issues involved on appeal and the lack of Sixth Circuit precedent on the issues, the court certified the case for interlocutory appeal.”
On appeal to the Sixth Circuit, the appeals court noted that while Title VII confers a private right of action against federal employers for employment discrimination, it is not unlawful for an employer to discharge a federal employee if the national-security exemption applies. This exemption applies if “the occupancy of such position, or access to the premises in or upon which any part of the duties of such position is performed or is to be performed, is subject to any requirement imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any statute of the United States or any Executive order of the President;” and “such individual has not fulfilled or has ceased to fulfill that requirement.”
The appeals court analyzed whether, under the “recognized principles of statutory construction, the national security exemption applies” to the Rehabilitation Act, notwithstanding the absence of an explicit reference to the exemption. Looking at the plain language of the statute, the appeals court presumed that by declining to include a reference to Title VII in its entirety in the preceding subsection, the Rehabilitation Act intended for only the specified sections of Title VII to apply. The national security exemption was not one of those specified sections of Title VII.
In looking at the legislative history, the appeals court noted that the agency was unable to cite anything in the legislative history of the Rehabilitation Act or Section 717 that “firmly establishes the applicability of” the national security exemption. Finding that the inapplicability of the national security exemption was “reinforced by the seeming absence of case law applying the exemption to claims brought under the Rehabilitation Act,” the court found that the agency had not supplied a single case that supported its specific applicability.
The appeals court cited Chandler v. Roudeboush, 425 U.S. 840 (1976) in finding that the agency’s position could not prevail and that the national-security exemption did not apply to Rehabilitation Act claims, stating that the “plain, obvious and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.”
The appeals court also disagreed with the agency’s argument that the Egan doctrine precluded judicial review of an agency’s determination regarding an employee’s physical capability to perform the duties of his or her position, declining to adopt the “untenable position” wherein the appeals court would be “precluded from reviewing any federal agency’s employment decision so long as it is made in the name of national security.”
For the above stated reasons, the Sixth Circuit Court of Appeals denied the Tennessee Valley Authority’s interlocutory appeal.
Read the full case: Hale v. Johnson
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