Fifth Circuit to Decide Scope of the National Security Exemption Under Title VII

Title VII of the Civil Rights Act of 1964 contains a national security exemption, which prohibits any discrimination claim based on the denial or revocation of a security clearance.  The rationale for this exemption is that the federal agencies should not be required to defend the basis for security classification decisions in court.  The Supreme Court later expanded the national security exemption to other cases involving federal government employees in Department of the Navy v. Egan, 484 U.S. 518 (1988)

The Fifth Circuit will soon decide a case involving the FBI and the national security exemption, Bobbi-Anne Toy v. Eric Holder, No. 12-20471.  The author is counsel for the plaintiff, Ms. Toy.  The case was argued on April 2, 2013.

Ms. Toy worked as a civilian contractor at the FBI’s Beaumont regional office.  She applied for a position as an FBI employee and received a conditional offer of employment.  However, Ms. Toy had an ongoing series of incidents with the head of the Beaumont regional office.  On July 13, 2004, based on information supplied by head of the Beaumont regional office, Ms. Toy’s direct supervisor in Houston canceled Ms. Toy’s building access and purported to revoke her security clearance. Once this happened, the company for which Ms. Toy worked had no choice but to terminate her.

Ms. Toy initiated an EEO proceeding at the FBI on the day when she was terminated, alleging gender discrimination.  FBI personnel subsequently gave negative references in connection with Ms. Toy’s conditional job offer. The FBI withdrew the conditional job offer on the basis of those references.  Ms. Toy subsequently added a retaliation claim.

In fact, the FBI personnel in Houston and Beaumont had no authority to revoke Ms. Toy’s security clearance.  The FBI has an extensive set of procedures for the revocation of security clearances, and none of those procedures were ever invoked.  Instead, Ms. Toy’s top-secret security clearance remained intact and apparently remains in full force and effect
today.  In fact, FBI witnesses acknowledged that the only thing that was ever revoked was her building access.

Nonetheless, the FBI invoked the national security exemption to Title VII and Egan, and moved to dismiss the lawsuit.  The district court agreed and dismissed the case.  Ms. Toy appealed that ruling to the Fifth Circuit.

Around the same time, the District of Columbia Circuit decided a case that was similar in some respects.  Rattigan v. Holder, 689 F.3d 764 (D.C. Cir. 2012).  The Rattigan court rejected the notion that the "security" concerns on the part of lower level employees (such as the supervisors in Ms. Toy's case) implicate Egan.  Instead, the "predictive judgments" that fall within the scope of Egan and the national security exemption are the province of the FBI’s Security Division. The court stated:

In other words, employees outside the Security Division are expected to refrain from making sensitive, predictive judgments and it is "not their place" to make the kinds of decisions that Egan shields from review.  Given this, and for the reasons set forth in our earlier opinion, we adhere to our holding that Egan's absolute bar on judicial review covers only security clearance-related decisions made by trained Security Division personnel and does not preclude all review of decisions by other FBI employees who merely report security concerns.

689 F.3d at 768.  The District of Columbia Circuit denied rehearing en banc. Shortly before the oral argument in Ms. Toy's case, the deadline for the filing of a petition for certiorari in the Supreme Court expired.  The Solicitor General did not seek review in the Supreme Court.

At the oral argument on April 2, 2013 (which can be found by going to this page and searching for Case No. 12-20471), counsel for the FBI argued that Rattigan was wrongly decided and that the Fifth Circuit should create a circuit split.  The case is now awaiting decision by the Fifth Circuit.  The briefs are attached.

Brief of Appellant

Brief of Appellee

Reply Brief of Appellant

David C. Holmes is a Houston employment lawyer with The Law Offices of David C. Holmes

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