To close out the week, how about a case where the employee – an FBI agent stationed in Saudi Arabia in the wake of 9/11 – was accused of wearing Saudi national clothing, thus “creating the impression he had ‘gone native,'” and commissioning Saudi colleagues to find him a “suitable wife”? The agent complained that the charges were trumped-up retaliation for his complaints of race discrimination. The D.C. Circuit, remanding the case, discusses the scope of the national-security exception to employment law.
Rattigan v. Holder, No. 10-5014 (D.C. Cir. June 3, 2011): In Department of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court recognized that the Executive Branch has exclusive authority to determine the fitness of individuals for security clearance. Accordingly, cases in the federal sector that intrude on such national-security judgments are routinely dismissed. This case presented the twist of whether a decision simply to refer an employee for investigation, which might lead to revocation of security clearance, is itself protected under the shield of national security. The 2-1 panel divides on this question.
The FBI agent in this case (Rattigan) accused his superiors at the Office of International Operations (OIO) of racial discrimination, making several reports with the Equal Employment Opportunity (EEO) Office. After his supervisors became aware of one such complaint in January 2002, they wrote up a report to initiate a security investigation of Rattigan.
The supervisors’ memorandum charged the agent with sundry misconduct:
“(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’s investigation of the September 11 attacks, (5) that Rattigan took an extended absence to make a pilgrimage to Meccalong 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.”
The investigation ultimately found “no security risk,” found some of the accusations “unfounded,” and terminated the proceedings.
Rattigan charged the FBI in his lawsuit with retaliating against him in violation of Title VII for making complaints of discrimination to his agency’s EEO. The case proceeded to trial, where a jury found the FBI liable.
In the district court and on appeal, the FBI claimed that the case was non-justiciable because it intruded improperly on its investigation of Rattigan’s security status. The D.C. Circuit agrees that the case, as framed at trial, improperly put national-security issues before the jury. But the panel divides 2-1 on the aftermath: the majority holds that the case can be re-tried without intruding on executive prerogatives, the dissent would simply dismiss.
Judge Tatel for the court (with Judge Rogers concurring) concludes that not every employment decision that brushes upon security clearances is necessarily shielded under Egan. In the majority decision, a line is drawn between a supervisor’s referring an employee for investigation and the actual examination of the employee’s clearance by the FBI’s Security Division:
“Rattigan’s claim implicates neither the denial nor revocation of his security clearance nor the loss of employment resulting from such action. After all, the FBI left Rattigan’s clearance in place and he remains employed by that agency. Instead, Rattigan argues that his OIO supervisors referred him for a security investigation in order to retaliate against him because he filed Title VII claims and that this referral set in motion a several month long investigation by the FBI’s Security Division that caused him serious emotional distress and damaged his reputation.
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“We agree with the district court that Egan shields from review only those security decisions made by the FBI’s Security Division, 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.”
The majority holds that Rattigan’s case can be tried without examining the Security Division’s decision to investigate and the dismiss the charges against him:
“Given that OIO’s referral may qualify as a materially adverse action [for Title VII retaliation purposes] and that such an action falls outside Egan, we shall remand to give Rattigan an opportunity to prove his case. Of course, the district court will have to ensure that the jury does not second-guess the Security Division’s decision to initiate the investigation. For even if the charge of retaliation focuses only on OIO’s referral, the risk remains that unless the district court takes precautions, the jury could nonetheless second-guess the Security Division’s decision to initiate the investigation.”
Dissenting, Judge Kavanaugh would hold that the majority’s “slicing and dicing of the security clearance process into reviewable and unreviewable portions is nowhere to be found in Egan, and does not reflect the essential role that the reporting of security risks plays in the maintenance of national security.”
Prediction: a hard-fought petition for rehearing en banc, and cert petition to the Supreme Court by the eventual loser.