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No National Security Exemption Under Rehab Act for TVA Nuclear Security Officer, Says Sixth Circuit

No National Security Exemption Under Rehab Act for TVA Nuclear Security Officer, Says Sixth Circuit

In Hale v. Johnson, 2016 WL 7473785 (6th Cir., December 29, 2016), after the Eastern District of Tennessee overruled the defendant’s motion to dismiss and certified an interlocutory appeal,  the Sixth Circuit affirmed the district court’s decision. This case involved a claim by Hale, a nuclear security officer at TVA’s Sequoyah Nuclear Plant since 2009. The facts giving rise to the claim arose after TVA implemented a pulmonary function test for all plant officers in 2013. Hale failed the test due to his chronic obstructive pulmonary disease and was terminated. He sued under the Rehabilitation Act and the Americans with Disabilities Act. TVA moved to dismiss for lack of subject matter jurisdiction arguing that (1) Title VII’s national security exemption applied to the Rehab Act and precluded the court from reviewing physical fitness requirements imposed by the Nuclear Regulatory Commission; and (2) the Egan doctrine precluded the judiciary from reviewing TVA’s determination. (Dept. of Navy v. Egan, 484 U.S. 518 (1988) precludes judicial review of security-clearance decisions). The district court rejected both arguments.

On the first issue, the court dissected the statutory language under Title VII and the Rehab Act. Title VII does include a national security exemption, providing that it is not unlawful for an employer to discharge an employee from their position if performance of the position is subject to a requirement imposed in the interest of national security under a statue or executive order. The court then went on to analyze the remedies under the Rehab Act, which essentially provides the same as those provided under Title VII. (The ADA provides a similar reference to Title VII). In reconciling this issue, the court could find nothing in the Rehab Act which referenced to the Title VII exemption, and was unwilling to enlarge its provisions in that regard. Likewise, the court found no case authority or legislative history which would support TVA’s argument that the exemption be extended to the Rehab Act.

With respect to the second argument, the court held TVA’s argument was too broad an extension of Egan. The court noted that the Supreme Court had explicitly narrowed its holding there to address review of decisions to revoke or deny security clearances, and was focused on access to national-security information, not judgments with respect to physical capacity. Accordingly, TVA’s interlocutory appeal was denied.

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