Fedweek Legal

In a recent court decision, the U.S. District Court for the District of Columbia held that it had no jurisdiction to rule on a complaint alleging discriminatory termination once the agency raises the employee’s ineligibility to hold a security clearance, even if that justification for the employee’s termination was not given at the time of the termination. D.D.C. No. 03-2176, 5/14/04. In this case, the employee was terminated from employment as a criminal investigator with the Transportation Security Agency (TSA), an agency within the Department of Homeland Security (DHS). At the time of the employee’s termination, the agency stated she was terminated for falsifying an employment application which rendered her “unsuitable” for the position. However, after the employee filed an EEO complaint, the agency altered the reasons for her termination stating that the sole reason that she was terminated was that she could not obtain a security clearance.


After an EEO lawsuit was filed in court, the DHS moved to dismiss the case arguing that, under the Supreme Court case of Navy v. Egan, 448 U.S. 518 (1988), the court lacked jurisdiction because the litigation over the denial of her security clearance would call into questions national security decisions which are not reviewable by courts. That the agency’s rationale was not offered at the time of termination, was presented only after the filing on an EEO complaint and could be viewed as being made “in anticipation” of litigation, did not change the analysis, according to the court. Even if the government’s rationale is “post hoc” (after the fact) justification, which would usually require closer scrutiny, the court said that an assessment of whether the agency’s offered reason for her termination was pretextual would involve an examination of the reasons for denial of her security clearance. That examination, the court ruled, was impermissible. Even a post hoc national security explanation is sufficient to deny the court jurisdiction.


The impact of this decision will be to allow agencies to hide behind discriminatory reasons for adverse personnel decisions by claiming national security as a defense, even though no issue concerning national security or eligibility for a security clearance is offered at the time of the adverse personnel decision. This case strikes another blow against employee rights to be free from discrimination.

** This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com **