Rattigan v. Holder, 10-5014
| Decision Date | 03 June 2011 |
| Docket Number | No. 10-5014,10-5014 |
| 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 |
Charles W. Scarborough, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Ronald C. Machen Jr., U.S. Attorney, and Marleigh D. Dover, Assistant Director. 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.
TATEL, Circuit Judge: In this case, a jury found that the FBI violated Title VII of the Civil Rights Act of 1964 by launching a security investigation of plaintiff, then an agent in its Saudi Arabia office, in retaliation for his filing of a discrimination complaint. On appeal, the government argues that plaintiff's claim is nonjusticiable under Supreme Court and D.C. Circuit case law because adjudicating Title VII liability called for the jury to second-guess security judgments committed by law to FBI discretion. Because we agree that plaintiffs case, as presented to the jury, invited just such second-guessing, we vacate the judgment in plaintiffs favor. But because we also believe that plaintiff might be able to pursue his retaliation claim without calling into question unreviewable security decisions, we remand for further proceedings consistent with this opinion.
Plaintiff-Appellee Wilfred Rattigan is a black male of Jamaican descent who has converted to Islam. He has worked for the FBI since 1987. In 1999, the FBI transferred Rattigan to the Office of the Legal Attache at the United States Embassy in Riyadh, Saudi Arabia. The FBI has Legal Attache offices, also known as "LEGAT" offices, in over forty countries. See Rattigan v. Holder ("Rattigan I"), 604 F. Supp. 2d 33, 37 (D.D.C. 2009). Agents in these offices function as liaisons to security services in their host countries. LEGAT offices are usually run by two agents, referred to respectively as the Legal Attache ("LEGAT") and the Assistant Legal Attache ("ALAT"), as well as by temporary duty staff. Id. LEGAT offices report to the FBI's Office of International Operations (OIO), located in Washington, D.C. Id. at 38.Having initially served as ALAT in the Riyadh office, Rattigan was promoted to LEGAT in July 2000.
During his tenure in the Riyadh office, Rattigan made several complaints of workplace discrimination. Of particular relevance to this case, he filed a report with the Equal Employment Opportunity (EEO) Office on October 26, 2001, alleging racial and national origin discrimination. This report followed a confrontation between Rattigan and his immediate supervisor, OIO Unit Chief Cary Gleicher, while Gleicher was visiting the Riyadh office in mid-October 2001. In a one-on-one meeting and then later in an office-wide meeting, Rattigan accused Gleicher and two other OIO supervisors— Section Chief Michael Pyszczymuka and Deputy Assistant Director Leslie Kaciban—of rejecting his office's requests for additional assistance and weapons on account of his race. Rattigan also claimed that the FBI sent Gleicher to visit the Riyadh office only because of Rattigan's race. Returning to Washington, Gleicher informed Pyszczymuka and Kaciban of Rattigan's complaints. On November 9, 2001, an EEO counselor interviewed Rattigan about his complaint, which included the allegations he had previously raised with Gleicher, as well as other issues, such as Rattigan's contention that Kaciban had made racially tinged threats. At a conference in January 2002, Rattigan personally informed Gleicher and Pyszczymuka that he was pursuing discrimination claims against them. An EEO counselor met with Kaciban, Gleicher, and Pyszczymuka about Rattigan's complaint on January 10, 2002.
At around the same time, the events giving rise to the FBI's security investigation of Rattigan began unfolding. In late November 2001, Gleicher sent OIO Special Agent Donovan Leighton on a twenty-one day assignment to the Riyadh office, during which Leighton supposedly becameconcerned about Rattigan's behavior and management of the office. For example, on several occasions Leighton saw Rattigan wearing "full Saudi Arabian costume" while in the U.S. embassy. Considering this "very unusual," Leighton and other staff wondered whether Rattigan might be "inappropriately under the influence of his Saudi counterparts." Trial Tr. at 57-60 (July 23, 2009). Leighton also claimed he heard Rattigan talk about hosting "a fairly wild party" attended by several women described as "nurses." Id. at 62. According to Leighton, temporary duty personnel recounted other similarly raucous events hosted by Rattigan.
Following a short vacation, Leighton returned to OIO's Washington Office in January 2002, becoming interim desk officer for LEGAT Offices in Pakistan and the Middle East, including the Riyadh office. Leighton testified that his interactions with Rattigan during this time led him to become more concerned, especially given the importance of Rattigan's office to the FBI's mission in light of the September 11, 2001 terrorist attacks. After consulting his OIO supervisors, Leighton documented his concerns in an electronic communication, i.e., a memorandum written for internal use by FBI agents and other employees.
In his electronic communication, which he began drafting in the end of January and completed in March, Leighton reported, among other things, (1) that Rattigan occasionally wore Saudi national clothing he had received as a gift from the Saudi security service, creating the impression he had "gone native," (2) that Rattigan's Saudi colleagues were attempting to find him a "suitable wife," (3) that Rattigan hosted wild parties attended by other agents and by female "nurses," a term that might have "be[en] used by . . . Rattigan as a euphemism for 'prostitutes,' " (4) that Rattigan and his assistant, Abdel-Hafiz, were inattentive to the FBI'sinvestigation of the September 11 attacks, (5) that Rattigan took an extended absence to make a pilgrimage to Mecca along with Abdel-Hafiz and their Saudi counterparts during which he could be contacted only through the Saudi security service, and (6) that Rattigan refused to allow temporary duty staff to interact directly with the Saudi security service. Leighton gave a draft of the electronic communication to Pyszczymuka who then returned it (along with suggestions made by his assistant) and directed Leighton to address the final communication to the attention of the Security Division's Section Chief, Edward Shubert. When Pyszczymuka received the revised electronic communication from Leighton, he forwarded it along to the Security Division together with a cover memo acknowledging Rattigan's pending discrimination complaint against OIO supervisors including himself and asking the Division to "peruse the [communication] and consider any potential security issues, making the appropriate referrals."
In response to this referral, Shubert reviewed Leighton's electronic communication and decided to initiate a security investigation. The investigation was conducted by the Division's Analytical Integration Unit, which, due to staffing constraints, obtained two additional investigators from the FBI's Inspection Division. See Rattigan I, 604 F. Supp. 2d at 44. One of those investigators, Cheryl Tucker, interviewed sixteen FBI employees previously assigned to the Riyadh office, including Leighton, and filed a report concluding that "the potential risks to FBI security and information, as documented by . . . Leighton, are unfounded." More specifically, Tucker found that the information obtained from her interviews "failed to support . . . Leighton's assertions that the women described as 'nurses' were prostitutes." Instead, she concluded, the women were actual nurses who attended parties at diplomatic residences. Tucker also found no supportfor Leighton's suspicion that Rattigan's relationship with Saudi intelligence officials revealed foreign influence. After conducting its own review of the evidence, the Analytical Integration Unit reached the same conclusion, issuing a final report finding "no security risk present relative to the issues of allegiance, foreign influence, or personal conduct on the part of LEGAT Rattigan." The Unit's report also indicated that Leighton's assertions regarding Rattigan's supposed inactivity in the FBI's September 11 investigation "lack[ed] corroboration and [were] unfounded." Accordingly, the Security Division closed the investigation.
Rattigan filed suit in 2004, raising several claims of unlawful discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a series of rulings, the district court dismissed or granted summary judgment to the government as to all claims save one: Rattigan's contention that the FBI retaliated against him "for complaining that OIO officials had discriminated against him on the basis of his race and national origin" by subjecting him to a security clearance investigation. See Rattigan v. Holder ("Rattigan II"), 636 F. Supp. 2d 89, 90 (D.D.C. 2009) (). On the eve of trial, the government filed a motion to dismiss, arguing for the first time that Rattigan's retaliation claim was nonjusticiable because, according to the government, it would require the jury to second-guess national security judgments committed by law to FBI discretion. The district court denied the motion. See id. at 91, 95. Following trial, the jury returned a verdict for Rattigan, and the district court denied the government's ...
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