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Dewey Publications Inc.
News and Case Alert
Issue #3-6
In this issue...
Rattigan v. Holder by Elizabeth Newman

Supervisors, HR professionals and representatives: don't miss this book! The approach to and execution of an adverse or performance based action is critical to its success. When such actions are challenged, whether before the MSPB, EEOC or an arbitrator, the fact-finder's review will start at the beginning and not just look at the end result.

With step by step advice on the strategy of bringing an effective action, Adverse Actions and Performance-Based Actions sets out all the legal and regulatory requirements and case law that will govern the action. Each section is divided by individual actions and examines all substantive and procedural issues: what constitutes an adverse or performance based action, who may challenge such an action; the legal and regulatory issues involved, and what must happen to prevail.

Law suits, grievances, appeals, oh my! At some point, as a supervisor in the federal government, you will be called upon to defend a decision made or action taken. Be prepared for it.

One of Dewey's most beloved authors, Michael Corum, has Supervisor's Guide to Litigation and Dispute Resolution to help federal supervisors navigate through the administrative and judicial appeals available to employees. While warning of the complexities supervisors face with such challenges, Mr. Corum arms federal supervisors with the necessary strategies and knowledge to confidently deal with the system.

If you are a federal supervisor or advise one, you need this book.

The law on security clearances is changing folks! Interpretation of Egan v. Department of Navy is once again up for debate. (See Ms. Newman's article in News Alert #3-6 and the Conyers article in News Alert #3-1) Educate yourself on the statutes, regulations and case law governing this area of the law.

Books dedicated entirely to security clearance issues in the federal employment context are hard to come by. It is essential for attorneys, agency representatives, personnel management specialists, and personnel security managers to understand the law of a field traditionally steeped in secrecy. Dewey author Elizabeth Newman's Security Law and Procedure is authoritative and comprehensive on the topic. Elizabeth Newman, an experienced federal employment lawyer who has served as Vice Chair of the ABA Defense and National Security Committee, writes from a wealth of knowledge and experience in handling security clearance matters.

Dewey's FREE MONTHLY "News and Case Alert" Email is our way of keeping our customers up-to-date with the latest federal sector employment and labor laws, cases and news. Also included are new book announcements, notification of sales, special coupon codes, and book recommendations based on the issue's articles. We will never spam or give out your email address. Unsubscribe at any time by clicking the SafeUnsubscribe link at the bottom of every email. If you know someone who this information will be valuable to, please use the forward link at the bottom of the email. Thank you.

EEO Challenge to Security Clearance Investigation
Rattigan v. Holder, ___ F. 3d ___ (D.C. Cir. 2011)

FBI employee Rattigan, serving at the U.S. Embassy in Saudi Arabia, filed several EEO complaints accusing his supervisors of race discrimination. Around the same time, one of those same supervisors sent a special agent on special assignment to Rattigan's office. The agent allegedly became concerned about Rattigan's behavior and management of the office; specifically, inter alia, that Rattigan allegedly wore "full Saudi costume" while in the U.S. Embassy and held wild parties attended by prostitutes. As a result, line management made a referral to the security division which initiated a security investigation, found no security risks, and closed the investigation.

Rattigan filed suit, alleging, inter alia, retaliation in line management's referral to the Security Division, causing him serious emotional distress and damage to his reputation. On the eve of trial, the agency, citing Navy v. Egan, 484 U.S. 518, 527 (1988), filed a motion to dismiss the claim, arguing that the retaliation claim was nonjusticiable because it would require the jury to second guess national security judgments committed by law to FBI discretion. The district court denied the motion, and following trial, the jury returned a verdict for Rattigan.

The government appealed. The US Court of Appeals for the DC Circuit rejected the government's argument, reasoning that Rattigan's claim did not implicate the denial or revocation of his security clearance. In its analysis, the court considered whether Rattigan's claim implicated a security-related decision that Egan insulates from judicial review. It considered the fact that none of Rattigan's claims required review of a Security Division judgment and concluded that Egan shields from review only those security decisions made by the Security Division, not the actions of line management who make referrals to the Security Division. The court reasoned that Egan insulates decisions that require "[p]redictive those with the necessary expertise in protecting classified information," who are the trained adjudicative personnel.

However, the Court found that the trial court went too far, and allowed the jury to also review the substance of the security division decision. Accordingly, it remanded the case to give Rattigan the opportunity to pursue a claim that the referral to the Security division "may qualify as a materially adverse action and that such action falls outside Egan."

To date, supervisors have had unlimited and unchecked power to file a security incident report on an employee. The adjudicators' position is that the motivation behind the referral is irrelevant. This case is the first one in which the court finds that the employee has the right to challenge that motivation as retaliatory. Of course, if the end result is that the adjudicators do find the referral meritorious, then it will continue regardless of whether the motivation for the referral was suspect.

For more on security related topics, see Ms. Newman's book Security Clearance Law and Procedure, A Guide to MSPB Law and Procedure by Peter Broida and A Guide to Federal Sector Equal Employment Law and Practice by Ernie Hadley.

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