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 judgment...by 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.
