Wilfred Rattigan v. Eric Holder, Jr.

RATTIGAN, Appellee Wilfred Samuel HOLDER, Jr., Attorney

Eric H. Gen-

eral, Department United States Justice, Appellant.

No. 10-5014. Appeals,

United States Court

District of Columbia Circuit.

Argued Dec. 2011. July

Decided judicial decisions

clearance-related review, the Title VII claim could nonethe- long challenged so as it go less forward appellee to the Secu- Division’s deci- rity Division and not the investigate. rehearing, On howev- sion er, persuaded us that was too broad. For our earlier decision below, forth we narrow the the reasons set liability in these circum- scope of Title VII proceed- and remand for further stances opinion. with this ings consistent I. Scarborough, Attorney, U.S. Charles W. opinion, recounted in our earlier As Justice, argued the cause Department Rattigan is a Plaintiff-Appellee Wilfred him on the briefs With appellant. for descent who has black male of Jamaican West, Attorney, Assistant U.S. Tony were Rattigan, 643 converted to Islam. See Jr., Attorney, and Machen Ronald C. In the FBI transferred F.3d at 977. Dover, Attorney. Craig R. D. Marleigh employee, FBI long-term Lawrence, Attorney, en- Assistant U.S. Attaché at the Legal the Office of the appearance. tered an Riyadh, Embassy Saudi United States argued Moore the cause C. Jonathan Serving first as the Office’sAssis- Arabia. him the brief was appellee. With Legal At- Legal tant Attaché and then as R. Klimaski. James (Legat), Rattigan taché functioned as TATEL, ROGERS, Before: primary liaison to the Saudi intelli- FBI’s KAVANAUGH, Judges. Circuit reported to the FBI’s gence service (OIO) in Operations Office of International the Court filed Circuit Opinion for During his tenure Washington, D.C. TATEL. Judge office, made several com- Riyadh Dissenting opinion filed Circuit origin-based race- and national plaints of Judge KAVANAUGH. at an office- Specifically, discrimination. Rehearing On Petition 2001, Rattigan meeting wide October Gleicher, Cary supervisors accused OIO TATEL, Judge: Circuit and Leslie Kaciban Pyszczymuka, Michael FBI, alleg- an Appellee, claims pursued and later of discrimination him against retaliated es that FBI officials Equal Employment against them with Rights Title of the Civil in violation of (EEO) Office. Opportunity when, unfounded by reporting Act of 1964 time, in November Around the same to the Bureau’s security concerns Agent Leigh- Donovan Special OIO Division, they prompted investigation ton, twenty-one day sent Gleicher on for a eligibility into his continued grew Riyadh, purportedly assignment in this In our earlier clearance. Rattigan’s behavior suspicious about Holder, case, 643 F.3d 975 Rattigan v. particular, management of the office. (D.C.Cir.2011), although Su- held behavior, Leighton worried that certain precedent and D.C. Circuit preme Court Rattigan’s appearance at the U.S. such as Security Division’s shields costume,” Embassy review, in “full Arabian VII.”); Saudi cial including under Title suggested Rattigan might “inap- Reno, (D.C.Cir. Ryan 168 F.3d propriately under the influence of his Sau- 1999) (holding that “under an ad- 58, Trial Tr. counterparts.” (July di employment verse action based on denial 2009). 23, vacation, a Following short or revocation of security a clearance is not Leighton Washington returned to the OIO VII”). actionable under Title Office, dealings where he had further We “Egan held that shields from review Rattigan allegedly him led to become security those by decisions made consulting more concerned. After his OIO Division,” Security FBI’s employees whose supervisors, Leighton documented his con- are trained and authorized to make securi- cerns an “electronic communication” ty determinations, and “not the (EC), i.e., in- memorandum written for actions of thousands of other FBI employ- use, ternal which he sent to supervi- OIO who, ees like Rattigan’s supervisors, OIO Pyszczymuka sor for review. Pyszczymu- may from time to time refer matters to the ka Security then forwarded the EC to the Division.” 643 F.3d at Division, 983. We requesting a Leighton’s review of thus concluded that Rattigan’s claim based Following investigation, observations. its the Division on the potential reporting concluded that the OIO and referral could security alleged risks Leighton proceed long “so jury put is not corroboration “laek[ed] un- [were] position of second-guessing the Securi- founded.” Memorandum from Maureen ty Division.” Id. at 986. But finding that Chelak, Analytical Sec. Div. Integration the district court’s instructions invited the 2002). 18, (Sept. Unit 4 Accordingly, the jury to guess second the Security Divi- Division closed investigation, and Ratti- sion’s decision to investigation, initiate an gan security retained his clearance. we vacated the judgment and ordered the Rattigan filed suit under Title case remanded for further proceedings. Rights VII of the Civil Act of government a petition filed for re- §§ U.S.C. 2000e et seq., alleging, among hearing banc, and rehearing en arguing other things, the decision to refer that our decision conflicts both Leighton’s purported concerns to the Se- and reporting obligations established curity Division, prompting thus a security the President. As the government points clearance investigation, amounted to un- out, Executive Order which sets lawful retaliation for Rattigan’s pursuit of forth security clearance standards and discrimination claims. jury found for procedures, states that granted claim, on the retaliation ultimate- access to classified information “are en- ly awarding $300,000 him in damages. On couraged expected to report any in- appeal, argued primarily that raises doubts as to whether formation that Rattigan’s retaliation claim was non- employee’s another eligibility continued justiciable under the Court’s de- access to classified information clearly is cision in Department Navy Egan, consistent with the national security.” 484 U.S. 98 L.Ed.2d 918 Exec. Order No. 60 Fed. (1988), which we interpreted to bar 40,245, 40,253 1995) Reg. (Aug. (empha- judicial review of employment adverse ac- added). sis According government, tions based on the denial or revocation of a the prospect of Title security for re- clearance. See Bennett v. Cher- toff, (D.C.Cir.2005) porting-based 425 F.3d claims employ- could deter (“[E]mployment ees from reporting actions based on denial of find subject judi- clearance are not doubtful or difficult to verify—information authority training Security Divi- nor the to make critical to the that can be an effective inves- ability Accordingly, to conduct clearance decisions.” Id. sion’s argument tigation. Persuaded finding by non-expert “[t]he consideration, granted further merited colleague poten- refer a for a rehearing panel petition investigation categorically tial security briefing scope Egan’s on the quested unlike made predictive judicial review of bar on adjudicative ‘appropriately person- trained decisions, for Title VII liabili- potential nel’ who make clearance decisions concerns ty to chill delegated authority pursuant to Division, and the conse- subject adjudicative to established by narrowing Title VII quences that guidelines,” Egan’s we held bar on on referrals of limiting it to claims based judicial extends to review knowingly false information. by decisions made clearance-related Security Division itself and to not decisions II. by employees report other FBI their to clear Court made concerns Division. (quot- Id. at 984 presumption favoring ju- general 12,968, 3.1(b), ing § No. Exec. Order 60 when it en- aground review “runs dicial 40,250). Fed.Reg. at security,” national as concerns of counters grant “where clear- in cases ar rehearing, On employee, a particular to a sensitive ance report security to gues that decisions con call, discretionary judgment inherently Egan’s cerns because scope come within appropriate law to the is committed type of precisely “involve the same Branch.” 484 to predictions about risks national securi 527,108 explained in As at S.Ct. 818. ty” grant deny as decision to or clear however, do opinion, not be- prior our 6; ance, Reh’g Br. see also Appellant’s from Title all Egan that insulates lieve 775-76, at Dissenting Op. and because might upon employ- that bear decisions reporting mandate re Executive Order’s to classified informa- eligibility access ee’s “categorical flects a determination that all Rather, Egan empha- tion. Court employees access to infor with classified grant deny or that the decision sized ‘training and necessary mation have the “[pjredictive requires concerns,” experience’ report made that “must be those judgment” argu Br. 21. Appellant’s Reh’g But this necessary protecting expertise with the government’s in ment is undercut Id. at 108 classified information.” very Ex sistence—in the same brief —that Likewise, under Executive Or- S.Ct. 12,968requires employees ecutive Order 12,968, grant deny or der information that raises report “any information must be access classified doubts,” 6.2(b), § No. Exec. Order judgments by appropriately “based added), 40,253 Fed.Reg. (emphasis 60 adjudicative personnel.” Exec. trained to the infor making without 12,968, 3.1(b), Fed.Reg. § No. Order national veracity mation’s or relevance to 40,250. expert, predictive judg- It is this Indeed, security. government explains by “appropriately per- made trained” “[ajlthough plaintiff may argue judicial from insulates sonnel Leighton other OIO ‘should or officials F.3d at 983. At the review. facts includ have known’ that some FBI, person- trained” “appropriately in his did not raise secu significant ed EC Security By work Division. nel issues, not their to make contrast, rity place it was OIO officials “have neither judgment or undertake a mini- ployees clearances “are en- investigation verify those Appel- facts.” couraged and expected report any infor- Reh’g added); lant’s Br. 32-33 (emphasis mation that raises doubts as to whether Reh’g see also Pet. 14 n. 3 (suggesting that employee’s another eligibility continued employees should even “information access to classified information clearly might directly believe is not consistent security.” national accurate”). words, relevant In other Exec. 12,968, 6.2(b), § Order No. 60 Fed. outside the Division 40,253. Reg. at According to govern- expected are to refrain from making sensi- ment, 6.2(b) section adopts a mar- “broad tive, judgments predictive and it is “not gin of error in favor of security,” national their place” to make the kinds of decisions Appellant’s Reh’g Br. requiring em- that Egan shields review. Given ployees to report “any information that this, the reasons set forth in our doubts,” raises Exec. Order No. opinion, earlier we adhere to our holding (emphasis Egan’s judicial absolute bar on review added), even if that information is mere only security covers clearance-related deci- rumor or has only uncertain relevance to by sions made trained Security Division national security. This broad reporting personnel preclude and does not all review mandate reflects the judgment Executive’s by of decisions other FBI employees who that “[t]he of reliability final security merely report security concerns. clearance decisions ... necessarily de- pends on the proper having officials full III. and complete access to all potentially rele- In addition to its arguments about vant information, including information the scope the Egan, the government urges employee might is not directly believe rel- us to reconsider our grounds decision on evant or Reh’g 3; accurate.” Pet. 14 n. that, in the of “the Executive see also Appellant’s Reh’g Br. 30. Branch agencies that security handle The government is concerned issues,” that our clearance preserving Title VII lia earlier decision conflicts bility security this broad reporting claims will im reporting standard pair because it ability the would allow the Security Division to jury pretext to infer fulfill 12,968 find Executive Order Title VII responsi —and liability bility by “chill[ing] employee’s the timely decision to and ade —from quate reporting of dubious or security potentially in- Reh’g issues.” irrelevant Pet. it, 13. As we formation. understand See govern the 643 F.3d at 987 (“To point ment’s is this: determine imposing a stan whether OIO’s referral dard for Title rested on legitimate that security conflicts concerns as with the reporting opposed standard animus, set forth in to retaliatory jury the Executive Order our earlier must weigh strength the of the evidence creates a risk that an employee’s compli Leighton submitted in support of claim his ance Order provide could a basis that Rattigan might pose risk.”); a security for Title VII liability risk that could id. at (plaintiff 988 —a pretext show chill reporting and thus undermine the “convincing] jury that reporting] [the ability Division to fulfill its employees included in their referral accu- responsibilities to make fully informed se sations that knew or should have curity-clearance decisions. known were false or misleading” (empha- government’s added)). argument sis government rests points out, on 6.2(b) section of the Order, moreover, jury that a would evaluate the which, as explained above, states that plaintiffs em- pretext evidence pre- under the

769 insufficiently true prove weighty or raised the evidence standard —a ponderance a standard Court concerns. Such standard “clearly 12,- “inconsistent” with plainly deemed conflicts with Executive Order of the nation- interests consistent with expectation employees will re- 968’s security” standard used al even overheard rumors and small port at determinations. clearance may ultimately prove irrele- details suggested that S.Ct. 818. Because we Moreover, jurors vant. the extent that pretext prepon- find under a jury could upon “weigh be called would its own assess- standard based on derance strength of the evidence” submitted weight credibility concerns, reported support government reported, 987, Egan suggests F.3d at Rattigan, 643 likely our decision will deter warns that could preponderance standard “any informa- “clearly “depart[ them to from]” lead doubts,” No. Exec. Order tion raises standard mandated consistent” evaluating to re- President added), particularly when (emphasis seemingly insignificant information. port questionable po- either information is See 484 U.S. S.Ct. tentially chilling This effect insignificant. out, points although, And turn, “seriously com- reporting, could can be liable held final integrity of promise the VII, Title “sub- agree under decisions,” Br. Appellant’s Reh’g burdens, privacy, pub- stantial loss of pro- because accompany litigation, lic humiliation” that timely “predicated as a is on cess whole Appellant’s Reh’g Reply Br. could questiona- of even reporting and accurate have a serious chilling nonetheless effect govern- information.” Id. at 13. ble The employees. on individual an employee, ment is also concerned that Critically likely purposes, for our this fearing reporting information she chilling presents Egan prob- effect serious false or “should have known mislead- [was] given Security employ- lems Division ing” provide could for Title VII basis ees, to make trained at liability, Rattigan, might F.3d 643 by Egan, need decisions and thus covered and investigate take it herself to upon to get all the evidence can “control verify allegations reporting before —an on bearing access to information national subject, could off the “tip[] action that to determine whether an indi- witnesses, possible or other- influenee[] trustworthy ... sufficiently is to vidual impede[ Security Division’s abili- ] wise information,” Egan, access to such ty investigation.” [have] to an effective conduct Reh’g Br. 108 818. Exec- Appellant’s 484 U.S. S.Ct. The encourages reporting broad utive Order government’s arguments We find charged with precisely because entities powerful, especially given defer- quite making security clearance decisions—here impli- “the ence owed executive cases full to Security Division—need access cating security,” Nat’l national Ctr. for doubtful infor- even unsubstantiated and Justice, Dep’t v. U.S. 331 Sec. Studies of sensitive, mation order make (D.C.Cir.2003). Specifi- F.3d 926-27 predictive judgments protects. cally, agree we that our earlier decision above, we continue Although, explained as reporting critical discourage could indeed that the decisions reporting to believe jurors to infer by permitting pretext scope case fall issue this outside own the in- based their be- unlikely Egan’s protection, we conclude that reported formation was either 770 liability jurors

cause for such reporting any “weigh broad need for compromise integrity strength” could of deci- reported, judicial intru- Rattigan, sions that are shielded F.3d at or 643 to second- sion, i.e., Division, decisions of the guess the employee’s determination that allowing liability would conflict seemingly insignificant doubtful or infor- Egan. mation warranted reporting. Under a standard, knowingly false whether the in- then, question, is whether we formation reported was sufficient reporting must bar and referral claims doubts,” “raise[] Exec. Order No. altogether, as the or urges, about the sufficiently whether can minimize the plaintiffs eligibility for a clear- chilling effect Title VII nar irrelevant; question ance is the only scope rowing the of such ask claims. We whether the reporting employee actually it question duty this because is our not knew at the time only “preserve] follow but also to provided actually information he was false. possible the maximum extent Title VII’s The limited scope inquiry would important protections against workplace (and government’s also alleviate the discrimination retaliation.” Egan’s) conflicting concerns about eviden- 984; Ag Supply, F.3d at J.E.M. cf. standards, juries tiary apply would Int'l, Inc., Inc. v. Pioneer Hi-Bred preponderance standard determine 124, 143-44, the employee knowingly whether reported (2001) (“when L.Ed.2d 508 two statutes referred false information and would coexistence, are capable duty it is judgments, any standard, make no under courts, clearly absent a expressed con plaintiffs as to whether the continued ac- gressional intention contrary, to re cess classified clearly information was (internal gard as each effective” quotation security. consistent national omitted)). this, marks given Given that, below, explained Title VII claims government objects that even limit- based on knowingly pres reporting liability ed Title knowingly for false false chill, ent no serious risk of we believe that reporting likely would have a chilling ef- knowingly claims of security reports false fect. According government, the. plain- can Egan referrals coexist with and the will simply allege knowing falsity tiffs Executive Order. case, every allegation government the “famously easy claims is to make and diffi- knowingly standard,

A false unlike the cult to rebut.” Appellant’s Reh’g Reply suggested by standard opinion, our earlier Br. Given the ease which plain- would create no conflict with Executive claims, could allege tiffs the govern- 12,968’s Order reporting broad mandate. argues, employees might hesitate to However critical it is for employees to report doubtful, they find fear- information, doubtful or unreliable ing plaintiff that a argue, could and a jury Security the possibly Division cannot be find, they could knew the information by employees assisted who knowingly was false when port reported it. As is, false outright information —that it, government sees there no employees. lies—about fellow need to Conceding much, as a government “policy-based make for emphasizes exception” cases employees can involving face discipline security reports internal for fabricated be- false or reporting. Appel- are, definition, inaccurate “such reports See cause al- Reh’g lant’s Br. knowingly ready subject 30-31. A independent review and standard, moreover, false investigation” through would obviate agency pro- internal claims, can district courts Reh’g Br. 8. Such deter unfounded Appellant’s cedures. us, allow government tells to weed them out procedures, upon be counted allegations into inquire agencies summary judgment. quickly, confi- reporting false

knowingly not, reaching conclusion, In we are sensitivity dentially, appropriate and with creating a government suggests, error mandated margin wide exception” knowingly for “policy-based contrast, Order. Rather, given that false claims. claims, litigation Title VII government only on imposes an absolute bar risk of chill because presents greater a decisions, Division review nature, lengthy timeframe public liability Title VII for place limits we cases, imposed burdens and other civil no than must be broader other decisions 23:25-25:09; Arg. Rec. See Oral litigation. necessary integrity protect 30-31; Reh’g Appellant’s Br. Appellant’s security clearance-related re- Division’s Br. Reply 13-15. Reh’g way, preserve In this sponsibilities. we view, government’s concerns In our possible congression- maximum extent im- justify sweeping are insufficient ally protections against and mandated it munity from Title VII for unlawful retaliation in the remedies impose Although litigation civil can seeks. report- all workplace. Were we declare burdens, pro- agency internal substantial nonjusticiable, federal ing-based claims threat of carry a more immediate ceedings ” “ longer no redress employees could seek removal,’ ‘up including to and discipline, harm when a fa- for the caused coworker (Kavanaugh, at 991 Rattigan, 643 F.3d see for security concerns .retaliation bricates J., dissenting) (quoting statutorily protected activity, and Con- 2006)) (Nov. 2, surely threat —a Moreover, purpose in Title VII gress’s enacting chilling effect. its own creates arguments, But need not contrary government’s would frustrated. we no reason to think that an we see such broad immuni- grant juries any greater competence than above, narrow, a ty. explained As know- determining par- when it comes to what security reporting false ingly standard particular at a time person knew ticular creates no conflict with Executive claims intentionally re- person and whether that 12,968. given govern- And Order about a co-work- ported false information representation agencies ment’s Indeed, determinations is making such er. procedures investigating internal jury. function of See quintessential knowingly reports, false punishing Ventris, *,n. 556 U.S. Kansas effect, if marginal chilling think that the (2009) L.Ed.2d go Title any, allowing VII cases (“Our ... legal system is built on all of negligible. For forward would be jury it premise province that is the reasons, Ti- that Rattigan’s we hold these wit- credibility competing weigh if he can may proceed only claim tle VII nesses^]”). contrast, ex- By agency’s with a agency employees that acted show pertise in matters and its sensitiv- discriminatory in retaliatory or motive re- reporting ity to the Executive’s broad they that porting referring relevance to whether standard little to be knew false. reported knowingly false an has though allegations And information. IV. make, they falsity easy knowing may be government Both and the Rattigan easy to are, experience, in far from our adopt knowingly that were a evidentiary difficulty argue If this fails prove. security reporting reported false standard for or that OIO officials referred fac- VII, Title there would be no they claims under tual information to be knew false. proceedings. need for further to remand allegations The same can be said of the government argues For that part, Rattigan that in dressed traditional Saudi no supporting the record contains evidence clothing, intelligence that the Saudi service knowingly a claim that OIO officials re- attempted wife, to find him a and that he ferred false information only through could be contacted the Saudi Division and that remand would therefore intelligence Haaj. service while on the Rattigan very be futile. sees the record Nonetheless, our review of the record differently, claiming jury that effec- suggests that there be evidence to tively knowingly false found support Leighton claim that or other urging us to affirm the district court’s report OIO officials chose to other infor- that ground. Neither is cor- mation that knew to be false. For rect. example, Leighton’s that EC states Ratti- government opposes remand on the parties gan hosted wild attended “so- ground reported “[t]he that basic facts ” ‘nurses,’ called who Leighton claims largely the Leighton EC were uncontested were described manner suggesting trial, question only and the what was being “that the term ‘nurses’ was used properly inference of risk should Legat Rattigan euphemism as a for ‘pros- be facts.” Appellant’s drawn those ” EC, Leighton titutes.’ 2. In support (citation omitted). Reh’g Br. 32 As to of his claim that this allegation was know- many EC, allegations Leighton’s of the false, Rattigan ingly that contends it was government certainly correct. Rat- widely co-workers, known his including tigan instance, acknowledged, for that staff, dating OIO that he was later —and he occasionally wore traditional Saudi married —a woman who was fact a clothing Embassy to the and that he re- this, Rattigan claims, nurse. Given stricted interactions between American knew, Leighton and his OIO supervisors duty temporary staff and Saudi intelli- his suggestion that nurses might gence personnel facts that formed —both be was false. prostitutes part for the basis OIO Leighton’s responds Although Rattigan referral. claims counted various conversations that sug- allegations dispute, these were his evi- gested to Leighton that the “nurses” suggests only dence he previously had might prostitutes. According explained this to his supervisors behavior government, because Rattigan offers no provided explanation innocent suggesting Leighton evidence fabri- his conduct. For example, Rattigan points conversations, cated the details these out that had explained manage- he to OIO any cannot establish false re- personnel that Saudi would view fre- porting. argument But ignores Ratti- quent meetings temporary staff as an gan’s contention that Leighton and other affront and that he therefore limit chose to officials that Rattigan OIO knew was dat- such meetings in preserve good order to ing a woman actually who was nurse. relations with the intelligence Saudi ser- 19-20; Appellee’s Reh’g See Br. see also vice. may While this indicate OIO that Dep. Manneson 29-30 of (deposition Ratti- officials had little reason to that believe gan’s describing wife meetings with Ratti- Rattigan’s legitimate actions raised securi- co-workers). Moreover, ty gan’s although concerns—an issue that has no rele- vance knowingly Leighton’s under the EC states that “was false stan- he told” dard —it not suggest does that Leighton Rattigan party that had hosted a “in in to employees] F.3d remains effect the [FBI and two other which he more opinion. one or with this relations with extent consistent had had sexual ” EC, ‘nurses,’ Leighton of so-called the So ordered. investigation con- Security Division the inter- personnel of the that KAVANAUGH, “[n]one cluded Judge, Circuit any which could offer viewed dissenting: Leighton’s allegation support SSA

would tweaking analysis Although slightly with several Rattigan, along Legat that petition response in to Government’s duty] personnel, en- [temporary other majority still rehearing, for these wom- relations with gaged in sexual majority flaw. from a basic suffers Maureen Che- from en.” Memorandum agen- to that opinion continues insist some lak, Integration Unit Analytical Div. Sec. judicial- are cy clearance decisions 2002). suggests All this that (Sept. view, respectful In ly my reviewable. (1) no may prove be able Rattigan majority opinion’s conclusion cannot be Rattigan hosted Leighton one “told” Supreme squared with the Court’s engaged in which he and others parties Navy Egan, Department “nurses,” sexual relations with 818, 98 L.Ed.2d 918 (2) offi- Leighton and other OIO because (1988). Rattigan’s girlfriend cials knew that nurses, in fact her were co-workers Court held that suggested claim that circumstances Navy’s deny Egan a securi- decision to knowing- was might prostitutes instead be ty clearance could not reviewed ly false. action personnel against course of his opinion for Navy. Justice Blackmun’s stage,

At we have no need to deter- this protection that “the is suffi- Court reasoned mine whether the record evidence jury conclude must be cient to allow reasonable classified information committed supervisors Leighton or his OIO agency to the broad discretion reported or referred false factu- knowingly and this must include broad dis- sponsible, Security Division. Be- allegations al who have access cretion determine false knowingly set forth cause we it.” 108 S.Ct. 818. The Id. appeal, Rat- for the first time on standard precluded agency thus em- Egan Court thoroughly little reason to devel- tigan had Egan pursuing per- such as ployees knowing falsity dis- op evidence against their em- actions sonnel this, given trict court. Given doing would entail second- when so ployers that could record contains some evidence agency’s guessing knowingly form the for a claim basis recognized that Con- The Court decision. security reports, false shall remand presumption gress could override court, nec- permitting any after district unreviewability attached first to determine essary discovery, decisions, it said that Con- but there is sufficient evi- instance whether with respect had not done so gress falsity allow knowing dence Egan’s. like See id. personnel suits jury. bring his claim before a 108 S.Ct. 818. however, V. here, majority opinion narrowly. far Under reads more reasons, we vacate foregoing For the security clearance majority opinion, court and remand district committed not “to the broad decisions are with this proceedings further consistent agency responsible,” id. opinion, Rattigan, discretion of opinion. Our earlier (cid:127) 529, 818, but 108 S.Ct. to some agency “[A]n head ... should have the trained” “appropriately employees within say in deciding final repose whether to Maj. Op. at agency. (quoting Rat- his trust an who has ac- Holder, tigan 643 F.3d cess to [classified] information.” Id. (D.C.Cir.2011)). majority opin- Under the (citation omitted). scheme, new-fangled ion’s may courts not (cid:127) “[T]he Senate and House Committees review of agency employees the decisions ... gave no that an agency’s indication investigations grant, deny, who initiate security-clearance determination was clearances, may or revoke but courts re- subject now to be to review.” Id. at agency view the decisions of employees 531 n. S.Ct. 818. report security majority who risks. The (cid:127) “Placing the burden on the Govern- opinion’s slicing dicing ment” would involve “second-guessing process into un- reviewable and agency’s national determi- portions is reviewable nowhere to be found nations.” Id. at 108 S.Ct. 818. Egan, it not does reflect the essen- In the face of recurring “agency” tial role that the reporting risks theme in majority opinion here plays in the maintenance of national secu- that Egan protects only concludes the ac- rity. Egan: Egan consistently agency not be ance cases. Consider the opinion’s cy” To begin —not —as second-guessed approach, with, the decisionmaker certain ^[*] contrary referred to “the ^[*] to ^[*] following the majority within an Court clear- agen- may not implying that courts should information.” Id. at necessary expertise in protecting classified majority opinion inBut cies with simply contrasting the expertise tions of certain agency employees. The that of that mentions “those with the sentence, relies on a outside the Egan Court was reviewing single 108 S.Ct. 818. sentence draw bodies, agen- a reviewability line based on which employ- (cid:127) grant “[T]he ees of agency possessed certain particular employee ... is committed expertise. amounts of The full quote from appropriate agency law Egan makes that clear: the Executive Branch.” Egan, 484 judgment U.S. at Predictive this kind must be 818. (cid:127) “[Cjertain made necessary exper- those with the agencies civilian ... were tise in protecting classified ... information.

entrusted with in- protecting ... For reasons too obvious to call bearing formation for en- national securi- larged discussion, ty.” 527-28,108 protection Id. at S.Ct. of clas- 818. (cid:127) sified information must be committed sought “Presidents ... have protect the broad discretion of agency

sensitive information ... delegat- sponsible, ing this and this must responsibility include broad to the heads of agencies.” discretion determine Id. who S.Ct. (cid:127) access to it. Certainly, it is not “Certainly, reason- it not reasonably possi- ably possible for an nonexpert

ble for an outside nonexpert body outside body to review the review substance of such substance of such a judg- ment and to agen- decide whether and to decide whether cy should have been able make the should have been able to make necessary affirmative prediction necessary prediction affirmative confidence.” Id. 108 S.Ct. 818. confidence.

775 overall maintain- part process tial of the of (citation, quotation and internal ellipsis, Id. added). omitted) (emphases security preventing and those ing marks national may security accessing who risks from suggests Egan’s language in Nothing Egan information. barring sensitive only Supreme Court was that the of security protects security actions the front the the clearance end of review of the as employees, trained” “appropriately reports of process including clearance — Maj. Op. here majority opinion contends. possible security pro- much as it risks —as 983). Rattigan, 643 F.3d (quoting at 767 end. tects the back applying Nor have Court’s decisions report- powerful indication that the One majority line Egan drawn to nation- ing security important of risks Supreme opinion Following creates. rule security Egan al and falls within the lead, to the deci referred Court’s required the President is that himself as a agency sionmaking process In an order is- reporting. executive such of whole, parts employees not to certain in by President Clinton and still ef- sued employment in discrimination agency, an fect, employees security all federal deci involving security clearance cases judg- predictive clearances must make a See, Chertoff, 425 e.g., Bennett v. sions. suspicious what constitutes be- ment about (D.C.Cir.2005) (“trier of 1003 F.3d report any behavior for havior such validity “evaluate the of fact” not “Employees encouraged are investigation: determination”); Ryan security agency’s report any (D.C.Cir.1999) expected Reno, F.3d 523 raises doubts as whether another in a action to that Title VII (“Egan applies ... claim preclude employee’s eligibility ... a discrimination continued for access security an clear resulting agency from clearly to classified information is consis- decision”). separation powers The ance security.” Exec. tent with national in Supreme Court issue identified Fed.Reg. Order No. subsequent our deci Egan and reflected 1995). (Aug. recog- Egan being stems from kind sions “authority protect nized agency predictive official—a made security] on the information falls [national from about risks —not Branch as head of President expertise agency job title or and as Commander Chief.” making official decision. rule Egan Moreover, Egan Court reports under President thus covers made protected process id. at 527- executive order. See Clinton’s suggest The Court did not whole. opinion, majority 108 S.Ct. 818. The of that parts could review distinct courts however, would to second- allow courts here, majority how- process. guess the decisions ever, says the initiation of securi- pursuant who risks grant, ty investigations and I order. President Clinton’s executive are denial, clearances or revocation of that with square Egan. cannot majority Egan rule. In the within the majority appreciate I share view, opinion’s false re- deterring concern about opinion’s I do not not within the rule. risks is in fact stem from a discrimina- ports I Egan. Nor do find that distinction But of sanc- motive. there are a host tory Investigations much think it makes sense. agency employee tions that deter will clearances and revocations See, e.g., engaging such behavior. of miscon- prompted reports often be (De- 2006) (Nov. 64,562, 64,563 an essen- of misconduct are Reports duct. partment of Justice right, “retains the SHERLEY,

where James L. appropriate, an em- Dr. and discipline Theresa Deisher, Dr., ployee Appellants for conduct that is inconsistent with Federal Antidiscrimination and Whistle- up blower Protection Laws includ- SEBELIUS, Kathleen in her Official removal”). ing event, in any And it is not Capacity Secretary Depart for us to revise the rule set in Egan; forth Services, of Health and Human Supreme that’s decision for the Court or al., Appellees. et Congress.

No. 11-5241. United States Appeals, Court of The rule that Court an- District of Columbia Circuit. in Egan applies nounced Congress “unless specifically provided otherwise.” 484 Argued April 2012. If Congress 818. Aug. Decided to re-strike wishes the balance between personnel and employment discrimination

laws on the one hand and national security other,

on the it is free to do so—either

broadening or narrowing the scope of the

protection agencies’ security clearance Congress so,

decisions. Until does howev-

er, apply must we according to its Here, Rattigan

terms. claims that FBI improperly

officials decided him clearance investigators. Under

Egan, we cannot second-guess the FBI’s reason,

decision. For that Rattigan’s suit bar,

faces an insurmountable and I would

dismiss it.

I respectfully dissent. When vacat-

ed prior decision, panel we indicated parties would have opportunity petitions new file for rehearing en banc

after our new was If issued.

Government files a petition for rehearing

en in response banc today’s revamped

but still-flawed majority opinion, I will

urge full grant Court to it.

Case Details

Case Name: Wilfred Rattigan v. Eric Holder, Jr.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 10, 2012

Citation: 689 F.3d 764

Docket Number: 10-5014

Court Abbreviation: D.C. Cir.