Rattigan v. Holder, 10–5014.

• Decision Date: 10 July 2012
• Docket Number: No. 10–5014.,10–5014.
• Citation: 115 Fair Empl.Prac.Cas. (BNA) 858,689 F.3d 764
• Parties: Wilfred Samuel RATTIGAN, Appellee v. Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

689 F.3d 764

115 Fair Empl.Prac.Cas. (BNA) 858

Wilfred Samuel RATTIGAN, Appellee

v.Eric H. HOLDER, Jr., Attorney General, United States Department of Justice, Appellant.

No. 10–5014.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 7, 2011.

Decided July 10, 2012.

Appeal from the United States District Court for the District of Columbia (No. 1:04–cv–02009).

Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs were Tony West, Assistant U.S. Attorney, Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Attorney. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Jonathan C. Moore argued the cause for appellee. With him on the brief was James R. Klimaski.

Before: ROGERS, TATEL, and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

On Petition for Rehearing

TATEL, Circuit Judge:

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, 643 F.3d 975 (D.C.Cir.2011), we held that although Supreme Court and D.C. Circuit precedent shields the Security Division's security clearance-related decisions from judicial review, the Title VII claim could nonetheless go forward so long as it challenged only the reporting of appellee to the Security Division and not the Division's decision to investigate. On rehearing, however, the government has persuaded us that our earlier decision was too broad. For the reasons set forth below, we narrow the scope of Title VII liability in these circumstances and remand for further proceedings consistent with this opinion.

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, 643 F.3d at 977. In 1999, the FBI transferred Rattigan, a long-term FBI employee, to the Office of the Legal Attaché at the United States Embassy in Riyadh, Saudi Arabia. Serving first as the Office's Assistant Legal Attaché and then as Legal Attaché (Legat), Rattigan functioned as the FBI's primary liaison to the Saudi intelligence service and reported to the FBI's Office of International Operations (OIO) in Washington, D.C. During his tenure in the Riyadh office, Rattigan made several complaints of race- and national origin-based discrimination. Specifically, at an office-wide meeting in October 2001, Rattigan accused OIO supervisors Cary Gleicher, Michael Pyszczymuka, and Leslie Kaciban of discrimination and later pursued claims against them with the Equal Employment Opportunity (EEO) Office.

Around the same time, in November 2001, OIO Special Agent Donovan Leighton, 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. Embassy in “full Saudi Arabian costume,” suggested that Rattigan might be “inappropriately under the influence of his Saudi counterparts.” Trial Tr. at 58, 60 (July 23, 2009). Following a short vacation, Leighton returned to the OIO Washington Office, where he had further dealings with Rattigan that allegedly led him to become more concerned. After consulting his OIO supervisors, Leighton documented his concerns in an “electronic communication” (EC), i.e., a memorandum written for internal use, which he sent to OIO supervisor Pyszczymuka for review. Pyszczymuka then forwarded the EC to the Security Division, requesting a review of Leighton's observations. Following its investigation, the Division concluded that the potential security risks alleged by Leighton “lack[ed] corroboration and [were] unfounded.” Memorandum from Maureen Chelak, Sec. Div. Analytical Integration Unit 4 (Sept. 18, 2002). Accordingly, the Division closed its investigation, and Rattigan retained his security clearance.

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 non-justiciable under the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 518, 108 S.Ct. 818, 98 L.Ed.2d 918 (1988), which we have interpreted to bar judicial review of adverse employment actions based on the denial or revocation of a security clearance. See Bennett v. Chertoff, 425 F.3d 999, 1001 (D.C.Cir.2005) (“[E]mployment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”); Ryan v. Reno, 168 F.3d 520, 524 (D.C.Cir.1999) (holding that “under Egan an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII”).

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, 643 F.3d at 983. We thus concluded that Rattigan's claim based on the OIO reporting and referral could proceed “so long as the jury is not put in the position of second-guessing the Security Division.” Id. at 986. But finding that the district court's instructions invited the jury to second guess the Security Division's decision to initiate an investigation, we vacated the judgment and ordered the case remanded for further proceedings.

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 that can be critical to the Security Division's ability to conduct an effective investigation. Persuaded that this argument merited further consideration, we granted the petition for panel rehearing and requested briefing on the scope of Egan's bar on judicial review of security clearance decisions, the potential for Title VII liability to chill reporting of security concerns to the Security Division, and the consequences of narrowing Title VII liability by limiting it to claims based on referrals of knowingly false 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.” 484 U.S. at 527, 108 S.Ct. 818. As explained in our prior opinion, however, we do not believe that Egan insulates from Title VII all decisions that might bear upon an employee's eligibility to access classified information. Rather, the Court in Egan emphasized that the decision to grant or deny security clearance requires a “[p]redictive judgment” that “must be made by those with the necessary expertise in protecting classified information.” Id. at 529, 108 S.Ct. 818. Likewise, under Executive Order 12,968, the decision to grant or deny access to classified information must be “based on judgments by appropriately trained adjudicative personnel.” Exec. Order No. 12,968, § 3.1(b), 60 Fed.Reg. at 40,250. It is this expert, predictive judgment made by “appropriately trained” personnel that Egan insulates from judicial review. Rattigan, 643 F.3d at 983. At the FBI, such “appropriately trained” personnel work in the Security Division. By contrast, OIO officials “have neither the authority nor the training to make security clearance decisions.” Id. Accordingly, finding that “[t]he decision by a non-expert employee to refer a colleague for a potential security investigation is categorically unlike the predictive judgment made by ‘appropriately trained adjudicative personnel’ who make security clearance decisions pursuant to delegated Executive authority and subject to established adjudicative guidelines,” we held that Egan's bar on judicial review extends only to security clearance-related decisions made by the Security Division itself and not to decisions by other FBI employees to report their concerns to the Division. Id. at 984 (quoting Exec. Order No. 12,968, § 3.1(b), 60 Fed.Reg. at 40,250).

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...