Lead Opinion
Opinion for the Court filed by Circuit Judge TATEL.
On Petition for Rehearing
Appellee, an employee of the FBI, alleges that FBI officials retaliated against him in violation of Title VII of the Civil Rights Act of 1964 when, by reporting unfounded security concerns to the Bureau’s Security Division, they prompted an investigation into his continued eligibility for a security clearance. In our earlier opinion in this case, Rattigan v. Holder,
I.
As recounted in our earlier opinion, Plaintiff-Appellee Wilfred Rattigan is a black male of Jamaican descent who has converted to Islam. See Rattigan,
Around the same time, in November 2001, OIO Special Agent Donovan Leigh-ton, sent by Gleicher on a twenty-one day assignment to Riyadh, purportedly grew suspicious about Rattigan’s behavior and management of the office. In particular, Leighton worried that certain behavior, such as Rattigan’s appearance at the U.S.
In 2004, Rattigan filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging, among other things, that the decision to refer Leighton’s purported concerns to the Security Division, thus prompting a security clearance investigation, amounted to unlawful retaliation for Rattigan’s pursuit of discrimination claims. The jury found for Rattigan on the retaliation claim, ultimately awarding him $300,000 in damages. On appeal, the government argued primarily that Rattigan’s retaliation claim was nonjusticiable under the Supreme Court’s decision in Department of the Navy v. Egan,
We held that “Egan shields from review only those security decisions made by the FBI’s Security Division,” whose employees are trained and authorized to make security clearance determinations, and “not the actions of thousands of other FBI employees who, like Rattigan’s OIO supervisors, may from time to time refer matters to the Division.” Rattigan,
The government filed a petition for rehearing and rehearing en banc, arguing that our decision conflicts with both Egan and reporting obligations established by the President. As the government points out, Executive Order 12,968, which sets forth security clearance standards and procedures, states that employees granted access to classified information “are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.” Exec. Order No. 12,968, § 6.2(b), 60 Fed. Reg. 40,245, 40,253 (Aug. 2, 1995) (emphasis added). According to the government, the prospect of Title VII liability for reporting-based claims could deter employees from reporting information they find doubtful or difficult to verify — information
II.
In Egan, the Supreme Court made clear that the general presumption favoring judicial review “runs aground when it encounters concerns of national security,” as in cases “where the grant of security clearance to a particular employee, a sensitive and inherently discretionary judgment call, is committed by law to the appropriate agency of the Executive Branch.”
On rehearing, the government argues that decisions to report security concerns come within Egan’s scope because they “involve precisely the same type of predictions about risks to national security” as the decision to grant or deny clearance, Appellant’s Reh’g Br. 6; see also Dissenting Op. at 775-76, and because the Executive Order’s reporting mandate reflects a “categorical determination that all employees with access to classified information have the necessary ‘training and experience’ to report security concerns,” Appellant’s Reh’g Br. 21. But this argument is undercut by the government’s insistence — in the very same brief — that Executive Order 12,968 requires employees to report “any information that raises doubts,” Exec. Order No. 12,968, § 6.2(b), 60 Fed.Reg. at 40,253 (emphasis added), without making a judgment as to the information’s veracity or relevance to national security. Indeed, the government explains that “[ajlthough plaintiff may argue that Leighton or other OIO officials ‘should have known’ that some of the facts included in his EC did not raise significant security issues, it was not their place to make
III.
In addition to its arguments about the scope of Egan, the government urges us to reconsider our decision on grounds that, in the judgment of “the Executive Branch agencies that handle security clearance issues,” preserving Title VII liability for security reporting claims will impair the ability of the Security Division to fulfill its Executive Order 12,968 responsibility by “chill[ing] the timely and adequate reporting of security issues.” Reh’g Pet. 13. As we understand it, the government’s point is this: by imposing a standard for Title VII liability that conflicts with the reporting standard set forth in Executive Order 12,968, our earlier opinion creates a risk that an employee’s compliance with the Order could provide a basis for Title VII liability — a risk that could chill reporting and thus undermine the ability of the Security Division to fulfill its responsibilities to make fully informed security-clearance decisions.
The government’s argument rests on section 6.2(b) of the Executive Order, which, as explained above, states that employees with security clearances “are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.” Exec. Order No. 12,968, § 6.2(b),
The government is concerned that our earlier decision conflicts with this broad reporting standard because it would allow a jury to infer pretext — and find Title VII liability — from an employee’s decision to report dubious or potentially irrelevant information. See Rattigan,
We find the government’s arguments quite powerful, especially given the deference owed “the executive in cases implicating national security,” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice,
Critically for our purposes, this likely chilling effect presents serious Egan problems given that Security Division employees, trained to make security clearance decisions and thus covered by Egan, need all the evidence they can get to “control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to ... [have] access to such information,” Egan, 484 U.S. at 527,
The question, then, is whether we must bar reporting and referral claims altogether, as the government urges, or whether we can sufficiently minimize the chilling effect of Title VII liability by narrowing the scope of such claims. We ask this question because it is our duty not only to follow Egan, but also to “preserve] to the maximum extent possible Title VII’s important protections against workplace discrimination and retaliation.” Rattigan,
A knowingly false standard, unlike the standard suggested by our earlier opinion, would create no conflict with Executive Order 12,968’s broad reporting mandate. However critical it is for employees to report doubtful or unreliable information, the Security Division cannot possibly be assisted by employees who knowingly report false information — that is, outright lies — about fellow employees. Conceding as much, the government emphasizes that employees can face internal discipline for false or inaccurate reporting. See Appellant’s Reh’g Br. 8, 30-31. A knowingly false standard, moreover, would obviate any need for jurors to “weigh the strength” of the information reported, Rattigan,
The government objects that even limited Title VII liability for knowingly false reporting would likely have a chilling effect. According to the. government, plaintiffs will simply allege knowing falsity in every case, an allegation the government claims is “famously easy to make and difficult to rebut.” Appellant’s Reh’g Reply Br. 14. Given the ease with which plaintiffs could allege such claims, the government argues, employees might hesitate to report information they find doubtful, fearing that a plaintiff could argue, and a jury could find, that they knew the information was false when they reported it. As the government sees it, there is no need to make a “policy-based exception” for cases involving fabricated security reports because “such reports are, by definition, already subject to independent review and investigation” through internal agency pro
In our view, the government’s concerns are insufficient to justify the sweeping immunity from Title VII liability that it seeks. Although civil litigation can impose substantial burdens, internal agency proceedings carry a more immediate threat of discipline, “ ‘up to and including removal,’ ” see Rattigan,
In reaching this conclusion, we are not, as the government suggests, creating a “policy-based exception” for knowingly false reporting claims. Rather, given that Egan imposes an absolute bar only on review of Security Division decisions, the limits we place on Title VII liability for other decisions must be no broader than necessary to protect the integrity of the Division’s security clearance-related responsibilities. In this way, we preserve to the maximum extent possible congressionally mandated protections against and remedies for unlawful retaliation in the workplace. Were we to declare all reporting-based claims nonjusticiable, federal employees could no longer seek redress for the harm caused when a coworker fabricates security concerns in .retaliation for statutorily protected activity, and Congress’s purpose in enacting Title VII would be frustrated. But we need not grant the government such broad immunity. As explained above, a narrow, knowingly false standard for security reporting claims creates no conflict with Executive Order 12,968. And given the government’s representation that agencies have internal procedures for investigating and punishing knowingly false reports, we think that the marginal chilling effect, if any, of allowing such Title VII cases to go forward would be negligible. For all of these reasons, we hold that Rattigan’s Title VII claim may proceed only if he can show that agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false.
IV.
Both Rattigan and the government argue that were we to adopt a knowingly
The government opposes remand on the ground that “[t]he basic facts reported in the Leighton EC were largely uncontested at trial, and the only question was what inference of security risk should properly be drawn from those facts.” Appellant’s Reh’g Br. 32 (citation omitted). As to many of the allegations in Leighton’s EC, the government is certainly correct. Rattigan has acknowledged, for instance, that he occasionally wore traditional Saudi clothing to the Embassy and that he restricted interactions between American temporary duty staff and Saudi intelligence personnel — both facts that formed part of the basis for the OIO security referral. Although Rattigan claims that these allegations were in dispute, his evidence suggests only that he had previously explained this behavior to his supervisors and provided an innocent explanation for his conduct. For example, Rattigan points out that he had explained to OIO management that Saudi personnel would view frequent meetings with temporary staff as an affront and that he therefore chose to limit such meetings in order to preserve good relations with the Saudi intelligence service. While this may indicate that OIO officials had little reason to believe that Rattigan’s actions raised legitimate security concerns — an issue that has no relevance under the knowingly false standard — it does not suggest that Leighton reported or that OIO officials referred factual information they knew to be false. The same can be said of the allegations that Rattigan dressed in traditional Saudi clothing, that the Saudi intelligence service attempted to find him a wife, and that he could be contacted only through the Saudi intelligence service while on the Haaj.
Nonetheless, our review of the record suggests that there may be evidence to support a claim that Leighton or other OIO officials chose to report other information that they knew to be false. For example, Leighton’s EC states that Rattigan hosted wild parties attended by “so-called ‘nurses,’ ” who Leighton claims were described in a manner suggesting “that the term ‘nurses’ was being used by Legat Rattigan as a euphemism for ‘prostitutes.’ ” Leighton EC, at 2. In support of his claim that this allegation was knowingly false, Rattigan contends that it was widely known by his co-workers, including OIO staff, that he was dating — and later married — a woman who was in fact a nurse. Given this, Rattigan claims, Leighton and his OIO supervisors knew, that his suggestion that the nurses might be prostitutes was false. The government responds that Leighton’s report only recounted various conversations that suggested to Leighton that the “nurses” might be prostitutes. According to the government, because Rattigan offers no evidence suggesting that Leighton fabricated the details of these conversations, Rattigan cannot establish any false reporting. But this argument ignores Rattigan’s contention that Leighton and other OIO officials knew that Rattigan was dating a woman who actually was a nurse. See Appellee’s Reh’g Br. 19-20; see also Manneson Dep. 29-30 (deposition of Rattigan’s wife describing meetings with Rattigan’s co-workers). Moreover, although Leighton’s EC states that he “was told” that Rattigan had hosted a party “in
At this stage, we have no need to determine whether the record evidence is sufficient to allow a reasonable jury to conclude that Leighton or his OIO supervisors knowingly reported or referred false factual allegations to the Security Division. Because we set forth this knowingly false standard for the first time on appeal, Rattigan had little reason to thoroughly develop evidence of knowing falsity in the district court. Given this, and given that the record contains some evidence that could form the basis for a claim of knowingly false security reports, we shall remand for the district court, after permitting any necessary discovery, to determine in the first instance whether there is sufficient evidence of knowing falsity to allow Rattigan to bring his claim before a jury.
V.
For the foregoing reasons, we vacate the district court judgment and remand for further proceedings consistent with this opinion. Our earlier opinion, Rattigan,
So ordered.
Dissenting Opinion
dissenting:
Although slightly tweaking its analysis in response to the Government’s petition for rehearing, the majority opinion still suffers from a basic flaw. The majority opinion continues to insist that some agency security clearance decisions are judicially reviewable. In my respectful view, the majority opinion’s conclusion cannot be squared with the Supreme Court’s decision in Department of the Navy v. Egan,
In Egan, the Supreme Court held that the Navy’s decision to deny Egan a security clearance could not be reviewed in the course of his personnel action against the Navy. Justice Blackmun’s opinion for the Court reasoned that “the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it.” Id. at 529,
The majority opinion here, however, reads Egan far more narrowly. Under the majority opinion, security clearance decisions are committed not “to the broad discretion of the agency responsible,” id.
* * *
To begin with, contrary to the majority opinion’s approach, the Supreme Court in Egan consistently referred to “the agency” — not to certain employees within an agency — as the decisionmaker that may not be second-guessed in security clearance cases. Consider the following from Egan:
• “[T]he grant of security clearance to a particular employee ... is committed by law to the appropriate agency of the Executive Branch.” Egan,484 U.S. at 527 ,108 S.Ct. 818 .
• “[Cjertain civilian agencies ... were entrusted with ... protecting ... information bearing on national security.” Id. at 527-28,108 S.Ct. 818 .
• “Presidents ... have sought to protect sensitive information ... by delegating this responsibility to the heads of agencies.” Id. at 528,108 S.Ct. 818 .
• “Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.” Id. at 529,108 S.Ct. 818 .
• “[A]n agency head ... should have the final say in deciding whether to repose his trust in an employee who has access to [classified] information.” Id. (citation omitted).
• “[T]he Senate and House Committees ... gave no indication that an agency’s security-clearance determination was now to be subject to review.” Id. at 531 n. 6,108 S.Ct. 818 .
• “Placing the burden on the Government” would involve “second-guessing the agency’s national security determinations.” Id. at 531,108 S.Ct. 818 .
In the face of the recurring “agency” theme in Egan, the majority opinion here concludes that Egan protects only the actions of certain agency employees. The majority opinion relies on a single sentence in Egan that mentions “those with the necessary expertise in protecting classified information.” Id. at 529,
Predictive judgment of this kind must be made by those with the necessary expertise in protecting classified information. For reasons too obvious to call for enlarged discussion, the protection of classified information must be committed to the broad discretion of the agency responsible, and this must include broad discretion to determine who may have access to it. Certainly, it is not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.
Nothing in Egan’s language suggests that the Supreme Court was only barring review of the security clearance actions of “appropriately trained” employees, as the majority opinion here contends. Maj. Op. at 767 (quoting Rattigan,
Moreover, the Supreme Court in Egan protected the security clearance process as a whole. The Court did not suggest that courts could review distinct parts of that process. The majority opinion here, however, says that only the initiation of security clearance investigations and the grant, denial, or revocation of clearances are within the Egan rule. In the majority opinion’s view, the reporting of security risks is not within the Egan rule. I do not find that distinction in Egan. Nor do I think it makes much sense. Investigations and revocations of security clearances will often be prompted by reports of misconduct. Reports of misconduct are an essential part of the overall process of maintaining national security and preventing those who may be security risks from accessing sensitive government information. Egan protects the front end of the security clearance process — including reports of possible security risks — as much as it protects the back end.
One powerful indication that the reporting of security risks is important to national security and falls within the Egan rule is that the President himself has required such reporting. In an executive order issued by President Clinton and still in effect, all federal employees with security clearances must make a predictive judgment about what constitutes suspicious behavior and report any such behavior for investigation: “Employees are encouraged and expected to report any information that raises doubts as to whether another employee’s continued eligibility for access to classified information is clearly consistent with the national security.” Exec. Order No. 12,968, § 6.2(b), 60 Fed.Reg. 40,245, 40,253 (Aug. 2, 1995). Egan recognized that the “authority to protect such [national security] information falls on the President as head of the Executive Branch and as Commander in Chief.” Egan,
I appreciate and share the majority opinion’s concern about deterring false reports that in fact stem from a discriminatory motive. But there are a host of sanctions that deter an agency employee from engaging in such behavior. See, e.g., 71 Fed.Reg. 64,562, 64,563 (Nov. 2, 2006) (De
The rule that the Supreme Court announced in Egan applies “unless Congress specifically has provided otherwise.”
I respectfully dissent. When we vacated the prior panel decision, we indicated that the parties would have an opportunity to file new petitions for rehearing en banc after our new opinion was issued. If the Government files a petition for rehearing en banc in response to today’s revamped but still-flawed majority opinion, I will urge the full Court to grant it.