01980447
02-25-1999
Harold Hock, Appellant, v. William S. Cohen, Secretary, Department of Defense, (Defense Intelligence Agency), Agency.
Harold Hock v. Department of Defense
01980447
February 25, 1999
Harold Hock, )
Appellant, )
)
v. ) Appeal No. 01980447
) Agency No. 97-DI-06
William S. Cohen, )
Secretary, )
Department of Defense, )
(Defense Intelligence Agency), )
Agency. )
)
DECISION
The appellant timely filed an appeal with this Commission from a final
decision, dated September 23, 1997, which the agency issued pursuant
to EEOC Regulation 29 C.F.R. �1614.107(a). The Commission accepts the
appellant's appeal in accordance with EEOC Order No. 960, as amended.
The appellant alleged in his August 5, 1997 complaint that the agency
revoked his security clearance based on his mental disability.
The agency dismissed the complaint on the ground that an administrative
tribunal does not have the authority to review an agency's decision to
revoke a security clearance. In so doing, the agency relied on Section
703(g) of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. 2000e-2(g), and the Supreme Court's decision in Department of
the Navy v. Egan, 484 U.S. 518 (1987).
On appeal, the appellant contends that the Egan decision addressed the
specific and narrow question of whether the Merit Systems Protection
Board had jurisdiction to review the revocation of a federal employee's
security clearance under the Civil Service Reform Act, 5 U.S.C. 7513.
The appellant contends that a claim arising under the Rehabilitation Act
is of a different nature and asserts different rights, and that the Egan
decision should not be applied as a reflexive response.
The agency responds that courts have recognized that individual security
clearance decisions are not subject to review for alleged violations of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 791,
citing Guillot v. Garrett, 970 F.2d 1320, 1326 (4th Cir. 1992).
The Commission has held that although the Rehabilitation Act
does not specifically incorporate Section 703(g) of Title VII, 42
U.S.C. 2000e-2(g), the principle enunciated therein is applicable to
allegations of discrimination in violation of the Rehabilitation Act.
Thierjung v. Department of Defense, Defense Mapping Agency, EEOC Request
No. 05880664 (November 2, 1989).
On May 1, 1989, the Commission issued policy guidance on the
applicability of Section 703(g) of Title VII, as a defense to a charge
of discrimination. Therein, the Commission indicated that where an
individual has been denied a position or has been discharged from a
position because he does not have a security clearance, the Commission's
review is limited to a determination whether:
(1) the occupancy of such position, or access to the premises in or upon
which any part of the duties of such position is 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
(2) such individual has not fulfilled or has ceased to fulfill that
requirement.
"Policy Guidance on the Use of the National Security Exception Contained
in 703(g) of Title VII of the Civil Rights Act of 1964, as amended," EEOC
Notice No. N-915-041 (May 1, 1989). The Commission further indicated
that it is precluded from reviewing the substance of security clearance
decisions and the validity of the security requirement itself. Id.
Accordingly, the Commission finds that the appellant's security
clearance allegation fails to state a claim that may be processed under
29 C.F.R. Part 1614.
CONCLUSION
For the reasons stated above, the Commission AFFIRMS the agency's
dismissal of the appellant's August 5, 1997 complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and any supporting documentation must be submitted with your
request for reconsideration. The Commission will consider requests
for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. �1614.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that you have the right to file
a civil action in an appropriate United States District Court WITHIN
NINETY (90) CALENDAR DAYS from the date that you receive this decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. If you file a civil action,
YOU MUST NAME AS THE DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE
OFFICIAL AGENCY HEAD OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS
OR HER FULL NAME AND OFFICIAL TITLE. Failure to do so may result in
the dismissal of your case in court. "Agency" or "department" means the
national organization, and not the local office, facility or department
in which you work. If you file a request to reconsider and also file a
civil action, filing a civil action will terminate the administrative
processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. �2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. ��791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
Feb 25, 1999
______________
Date Ronnie Blumenthal, Director
Office of Federal Operations