Wilfred Rattigan v. Eric Holder, Jr.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2011 Decided July 10, 2012

No. 10-5014

WILFRED SAMUEL RATTIGAN,

APPELLEE

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, UNITED STATES

DEPARTMENT OF JUSTICE,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:04-cv-02009)

On Petition for Rehearing

______

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.

2

Before: ROGERS, TATEL, and KAVANAUGH, Circuit

Judges.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

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

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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.

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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 (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.

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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. 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

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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. 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 also Dissenting Op. at

5, and because the Executive Order’s reporting mandate

reflects a “categorical determination that all employees with

access to classified information have the necessary ‘training

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and experience’ to report security concerns,” Appellant’s

Reh’g Br. 21. But this argument is undercut by the

government’s insistence—in the very same brief—that

Executive Order 12,968 requires employees to report “any

information that raises doubts,” Exec. Order No. 12,968,

§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added), without

making a judgment as to the information’s veracity or

relevance to national security. Indeed, the government

explains that “[a]lthough plaintiff may argue that Leighton or

other OIO officials ‘should have known’ that some of the

facts included in his EC did not raise significant security

issues, it was not their place to make that judgment or to

undertake a mini-investigation to verify those facts.”

Appellant’s Reh’g Br. 32–33 (emphasis added); see also

Reh’g Pet. 14 n.3 (suggesting that employees should report

even “information the employee might believe is not directly

relevant or accurate”). In other words, employees outside the

Security Division are expected to refrain from making

sensitive, predictive judgments and it is “not their place” to

make the kinds of decisions that Egan shields from review.

Given this, and for the reasons set forth in our earlier opinion,

we adhere to our holding that Egan’s absolute bar on judicial

review covers only security clearance-related decisions made

by trained Security Division personnel and does not preclude

all review of decisions by other FBI employees who merely

report security concerns.

III.

In addition to its arguments about the scope of Egan, the

government urges us to reconsider our decision on grounds

that, in the judgment of “the Executive Branch agencies that

handle security clearance issues,” preserving Title VII

liability for security reporting claims will impair the ability of

the Security Division to fulfill its Executive Order 12,968

responsibility by “chill[ing] the timely and adequate reporting

8

of security issues.” Reh’g Pet. 13. As we understand it, the

government’s point is this: by imposing a standard for Title

VII liability that conflicts with the reporting standard set forth

in Executive Order 12,968, our earlier opinion creates a risk

that an employee’s compliance with the Order could provide a

basis for Title VII liability—a risk that could chill reporting

and thus undermine the ability of the Security Division to

fulfill its responsibilities to make fully informed security-

clearance decisions.

The government’s argument rests on section 6.2(b) of the

Executive Order, which, as explained above, states that

employees with security clearances “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. at

40,253. According to the government, section 6.2(b) adopts a

“broad margin of error in favor of national security,”

Appellant’s Reh’g Br. 19, requiring employees to report “any

information that raises doubts,” Exec. Order No. 12,968,

§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added), even if

that information is mere rumor or has only uncertain

relevance to national security. This broad reporting mandate

reflects the Executive’s judgment that “[t]he reliability of

final security clearance decisions . . . necessarily depends on

the proper officials having full and complete access to all

potentially relevant information, including information the

employee might believe is not directly relevant or accurate.”

Reh’g Pet. 14 n.3; see also Appellant’s Reh’g Br. 30.

The government is concerned that our earlier decision

conflicts with this broad reporting standard because it would

allow a jury to infer pretext—and find Title VII liability—

from an employee’s decision to report dubious or potentially

9

irrelevant information. See Rattigan, 643 F.3d at 987 (“To

determine whether OIO’s referral rested on legitimate security

concerns as opposed to retaliatory animus, the jury must

weigh the strength of the evidence Leighton submitted in

support of his claim that Rattigan might pose a security

risk.”); id. at 988 (plaintiff may show pretext by

“convinc[ing] the jury that [the reporting] employees included

in their referral accusations that they knew or should have

known were false or misleading” (emphasis added)). The

government points out, moreover, that a jury would evaluate

the plaintiff’s pretext evidence under the preponderance of the

evidence standard—a standard the Supreme Court in Egan

deemed “inconsistent” with the “clearly consistent with the

interests of the national security” standard used in security

clearance determinations. 484 U.S. at 531. Because we

suggested that a jury could find pretext under a preponderance

standard based on its own assessment of the weight and

credibility of the information reported, the government warns

that our decision will likely deter employees from reporting

“any information that raises doubts,” Exec. Order No. 12,968,

§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added),

particularly when the information is either questionable or

potentially insignificant. This chilling effect on reporting, in

turn, could “seriously compromise the integrity of final

security clearance decisions,” Appellant’s Reh’g Br. at 30,

because the security clearance process as a whole is

“predicated on timely and accurate reporting of even

questionable information.” Id. at 13. The government is also

concerned that an employee, fearing that reporting

information she “should have known [was] false or

misleading” could provide a basis for Title VII liability,

Rattigan, 643 F.3d at 988, might take it upon herself to

investigate and verify the allegations before reporting—an

action that could “tip[] off the subject, influence[] possible

witnesses, or otherwise impede[] the Security Division’s

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ability to conduct an effective investigation.” Appellant’s

Reh’g Br. 29.

We find the government’s arguments quite powerful,

especially given the deference owed “the executive in cases

implicating national security,” Ctr. for Nat’l Sec. Studies v.

U.S. Dep’t of Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003).

Specifically, we agree that our earlier decision could indeed

discourage critical reporting by permitting jurors to infer

pretext based on their own judgment that the information

reported was either unlikely to prove true or raised

insufficiently weighty security concerns. Such a standard

plainly conflicts with Executive Order 12,968’s expectation

that employees will report even overheard rumors and small

details that may ultimately prove irrelevant. Moreover, to the

extent that jurors would be called upon to “weigh the strength

of the evidence” submitted in support of reported security

concerns, Rattigan, 643 F.3d at 987, Egan suggests that the

preponderance standard could lead them to “depart[]” from

the “clearly consistent” standard mandated by the President in

evaluating the decision to report seemingly insignificant

information. See Egan, 484 U.S. at 531. And although, as

Rattigan points out, only the government can be held liable

under Title VII, we agree that the “substantial burdens, loss of

privacy, and public humiliation” that accompany litigation,

Appellant’s Reh’g Reply Br. 13, could nonetheless have a

serious chilling effect on individual employees.

Critically for our purposes, this likely chilling effect

presents serious Egan problems given that Security Division

employees, trained to make security clearance decisions and

thus covered by Egan, need all the evidence they can get to

“control access to information bearing on national security

and to determine whether an individual is sufficiently

trustworthy to . . . [have] access to such information,” Egan,

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484 U.S. at 527. The Executive Order encourages broad

reporting precisely because the entities charged with making

security clearance decisions—here the Security Division—

need full access to even unsubstantiated and doubtful

information in order to make the sensitive, predictive

judgments that Egan protects. Although, as explained above,

we continue to believe that the reporting decisions at issue in

this case fall outside the scope of Egan’s protection, we

conclude that because broad liability for such reporting could

compromise the integrity of decisions that are shielded from

judicial intrusion, i.e., decisions of the Security Division,

allowing such liability would conflict with Egan.

The question, then, is whether we must bar reporting and

referral claims altogether, as the government urges, or

whether we can sufficiently minimize the chilling effect of

Title VII liability by narrowing the scope of such claims. We

ask this question because it is our duty not only to follow

Egan, but also to “preserv[e] to the maximum extent possible

Title VII’s important protections against workplace

discrimination and retaliation.” Rattigan, 643 F.3d at 984; cf.

J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.

124, 143–44 (2001) (“when two statutes are capable of

coexistence, it is the duty of the courts, absent a clearly

expressed congressional intention to the contrary, to regard

each as effective” (internal quotation marks omitted)). Given

this, and given that, as explained below, Title VII claims

based on knowingly false reporting present no serious risk of

chill, we believe that claims of knowingly false security

reports or referrals can coexist with Egan and the Executive

Order.

A knowingly false standard, unlike the standard

suggested by our earlier opinion, would create no conflict

with Executive Order 12,968’s broad reporting mandate.

12

However critical it is for employees to report doubtful or

unreliable information, the Security Division cannot possibly

be assisted by employees who knowingly report false

information—that is, outright lies—about fellow employees.

Conceding as much, the government emphasizes that

employees can face internal discipline for false or inaccurate

reporting. See Appellant’s Reh’g Br. 8, 30–31. A knowingly

false standard, moreover, would obviate any need for jurors to

“weigh the strength” of the information reported, Rattigan,

643 F.3d at 987, or to second-guess the employee’s

determination that seemingly doubtful or insignificant

information warranted reporting. Under a knowingly false

standard, whether the information reported was sufficient to

“raise[] doubts,” Exec. Order No. 12,968, § 6.2(b), 60 Fed.

Reg. at 40,253, about the plaintiff’s eligibility for a security

clearance is irrelevant; the only question is whether the

reporting employee actually knew at the time of the reporting

that the information he provided was actually false. The

limited scope of this inquiry would also alleviate the

government’s (and Egan’s) concerns about conflicting

evidentiary standards, for juries would apply the

preponderance standard only to determine whether the

employee knowingly reported or referred false information

and would make no judgments, under any standard, as to

whether the plaintiff’s continued access to classified

information was clearly consistent with national security.

The government objects that even limited Title VII

liability for knowingly false reporting would likely have a

chilling effect. According to the government, plaintiffs will

simply allege knowing falsity in every case, an allegation the

government claims is “famously easy to make and difficult to

rebut.” Appellant’s Reh’g Reply Br. 14. Given the ease with

which plaintiffs could allege such claims, the government

argues, employees might hesitate to report information they

13

find doubtful, fearing that a plaintiff could argue, and a jury

could find, that they knew the information was false when

they reported it. As the government sees it, there is no need to

make a “policy-based exception” for cases involving

fabricated security reports because “such reports are, by

definition, already subject to independent review and

investigation” through internal agency procedures.

Appellant’s Reh’g Br. 8. Such procedures, the government

tells us, allow agencies to inquire into allegations of

knowingly false reporting quickly, confidentially, and with

appropriate sensitivity to the wide margin of error mandated

by the Executive Order. In contrast, the government claims,

Title VII litigation presents a greater risk of chill because of

its public nature, the lengthy timeframe of civil cases, and

other burdens imposed by litigation. See Oral Arg. Rec.

23:25–25:09; Appellant’s Reh’g Br. 30–31; Appellant’s

Reh’g Reply Br. 13–15.

In our view, the government’s concerns are insufficient to

justify the sweeping immunity from Title VII liability that it

seeks. Although civil litigation can impose substantial

burdens, internal agency proceedings carry a more immediate

threat of discipline, “ ‘up to and including removal,’ ” see

Rattigan, 643 F.3d at 991 (Kavanaugh, J., dissenting)

(quoting 71 Fed. Reg. 64,562, 64,563 (Nov. 2, 2006))—a

threat that surely creates its own chilling effect. Moreover,

contrary to the government’s arguments, we see no reason to

think that an agency has any greater competence than juries

when it comes to determining what a particular person knew

at a particular time and whether that person intentionally

reported false information about a co-worker. Indeed, making

such determinations is the quintessential function of a jury.

See Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009) (“Our

legal system . . . is built on the premise that it is the province

of the jury to weigh the credibility of competing

14

witnesses[.]”). By contrast, the agency’s expertise in security

matters and its sensitivity to the Executive’s broad reporting

standard have little relevance to whether an employee has

reported knowingly false information. And though allegations

of knowing falsity may be easy to make, they are, in our

experience, far from easy to prove. If this evidentiary

difficulty fails to deter unfounded claims, district courts can

be counted upon to weed them out at summary judgment.

In reaching this conclusion, we are not, as the

government suggests, creating a “policy-based exception” for

knowingly false reporting claims. Rather, given that Egan

imposes an absolute bar only on review of Security Division

decisions, the limits we place on Title VII liability for other

decisions must be no broader than necessary to protect the

integrity of the Division’s security clearance-related

responsibilities. In this way, we preserve to the maximum

extent possible congressionally mandated protections against

and remedies for unlawful retaliation in the workplace. Were

we to declare all reporting-based claims nonjusticiable,

federal employees could no longer seek redress for the harm

caused when a coworker fabricates security concerns in

retaliation for statutorily protected activity, and Congress’s

purpose in enacting Title VII would be frustrated. But we

need not grant the government such broad immunity. As

explained above, a narrow, knowingly false standard for

security reporting claims creates no conflict with Executive

Order 12,968. And given the government’s representation that

agencies have internal procedures for investigating and

punishing knowingly false reports, we think that the marginal

chilling effect, if any, of allowing such Title VII cases to go

forward would be negligible. For all of these reasons, we hold

that Rattigan’s Title VII claim may proceed only if he can

show that agency employees acted with a retaliatory or

15

discriminatory motive in reporting or referring information

that they knew to be false.

IV.

Both Rattigan and the government argue that were we to

adopt a knowingly false standard for security reporting claims

under Title VII, there would be no need to remand for further

proceedings. For its part, the government argues that the

record contains no evidence supporting a claim that OIO

officials knowingly referred false information to the Security

Division and that remand would therefore be futile. Rattigan

sees the record very differently, claiming that the jury

effectively found knowingly false reporting and urging us to

affirm the district court’s judgment on that ground. Neither is

correct.

The government opposes remand on the ground that

“[t]he basic facts reported in the Leighton EC were largely

uncontested at trial, and the only question was what inference

of security risk should properly be drawn from those facts.”

Appellant’s Reh’g Br. 32 (citation omitted). As to many of the

allegations in Leighton’s EC, the government is certainly

correct. Rattigan has acknowledged, for instance, that he

occasionally wore traditional Saudi clothing to the Embassy

and that he restricted interactions between American

temporary duty staff and Saudi intelligence personnel—both

facts that formed part of the basis for the OIO security

referral. Although Rattigan claims that these allegations were

in dispute, his evidence suggests only that he had previously

explained this behavior to his supervisors and provided an

innocent explanation for his conduct. For example, Rattigan

points out that he had explained to OIO management that

Saudi personnel would view frequent meetings with

temporary staff as an affront and that he therefore chose to

limit such meetings in order to preserve good relations with

16

the Saudi intelligence service. While this may indicate that

OIO officials had little reason to believe that Rattigan’s

actions raised legitimate security concerns—an issue that has

no relevance under the knowingly false standard—it does not

suggest that Leighton reported or that OIO officials referred

factual information they knew to be false. The same can be

said of the allegations that Rattigan dressed in traditional

Saudi clothing, that the Saudi intelligence service attempted

to find him a wife, and that he could be contacted only

through the Saudi intelligence service while on the Haaj.

Nonetheless, our review of the record suggests that there

may be evidence to support a claim that Leighton or other

OIO officials chose to report other information that they knew

to be false. For example, Leighton’s EC states that Rattigan

hosted wild parties attended by “so-called ‘nurses,’ ” who

Leighton claims were described in a manner suggesting “that

the term ‘nurses’ was being used by Legat Rattigan as a

euphemism for ‘prostitutes.’ ” Leighton EC, at 2. In support

of his claim that this allegation was knowingly false, Rattigan

contends that it was widely known by his co-workers,

including OIO staff, that he was dating—and later married—a

woman who was in fact a nurse. Given this, Rattigan claims,

Leighton and his OIO supervisors knew that his suggestion

that the nurses might be prostitutes was false. The government

responds that Leighton’s report only recounted various

conversations that suggested to Leighton that the “nurses”

might be prostitutes. According to the government, because

Rattigan offers no evidence suggesting that Leighton

fabricated the details of these conversations, Rattigan cannot

establish any false reporting. But this argument ignores

Rattigan’s contention that Leighton and other OIO officials

knew that Rattigan was dating a woman who actually was a

nurse. See Appellee’s Reh’g Br. 19–20; see also Manneson

Dep. 29–30 (deposition of Rattigan’s wife describing

17

meetings with Rattigan’s co-workers). Moreover, although

Leighton’s EC states that he “was told” that Rattigan had

hosted a party “in which he and two other [FBI employees]

had had sexual relations with one or more of the so-called

‘nurses,’ ” Leighton EC, at 2, the Security Division

investigation concluded that “[n]one of the personnel

interviewed could offer any information which would support

SSA Leighton’s allegation that Legat Rattigan, along with

several other [temporary duty] personnel, engaged in sexual

relations with these women.” Memorandum from Maureen

Chelak, Sec. Div. Analytical Integration Unit 3 (Sept. 18,

2002). All this suggests that Rattigan may be able to prove

that (1) no one “told” Leighton that Rattigan hosted parties in

which he and others engaged in sexual relations with

“nurses,” and that (2) because Leighton and other OIO

officials knew that Rattigan’s girlfriend and her co-workers

were in fact nurses, the claim that circumstances suggested

they might instead be prostitutes was knowingly false.

At this stage, we have no need to determine whether the

record evidence is sufficient to allow a reasonable jury to

conclude that Leighton or his OIO supervisors knowingly

reported or referred false factual allegations to the Security

Division. Because we set forth this knowingly false standard

for the first time on appeal, Rattigan had little reason to

thoroughly develop evidence of knowing falsity in the district

court. Given this, and given that the record contains some

evidence that could form the basis for a claim of knowingly

false security reports, we shall remand for the district court,

after permitting any necessary discovery, to determine in the

first instance whether there is sufficient evidence of knowing

falsity to allow Rattigan to bring his claim before a jury.

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V.

For the foregoing reasons, we vacate the district court

judgment and remand for further proceedings consistent with

this opinion. Our earlier opinion, Rattigan, 643 F.3d 975,

remains in effect to the extent consistent with this opinion.

So ordered.

KAVANAUGH, Circuit Judge, dissenting: Although

slightly tweaking its analysis in response to the Government’s

petition for rehearing, the majority opinion still suffers from a

basic flaw. The majority opinion continues to insist that some

agency security clearance decisions are judicially reviewable.

In my respectful view, the majority opinion’s conclusion

cannot be squared with the Supreme Court’s decision in

Department of the Navy v. Egan, 484 U.S. 518 (1988).

In Egan, the Supreme Court held that the Navy’s decision

to deny Egan a security clearance could not be reviewed in

the course of his personnel action against the Navy. Justice

Blackmun’s opinion for the Court reasoned that “the

protection of classified information must be committed to the

broad discretion of the agency responsible, and this must

include broad discretion to determine who may have access to

it.” Id. at 529. The Egan Court thus precluded agency

employees such as Egan from pursuing personnel actions

against their agency employers when doing so would entail

second-guessing the agency’s security clearance decision.

The Court recognized that Congress could override the

presumption of unreviewability that attached to security

clearance decisions, but it said that Congress had not done so

with respect to personnel suits like Egan’s. See id. at 530.

The majority opinion here, however, reads Egan far more

narrowly. Under the majority opinion, security clearance

decisions are committed not “to the broad discretion of the

agency responsible,” id. at 529, but only to some

“appropriately trained” employees within the agency. Maj.

Op. at 6 (quoting Rattigan v. Holder, 643 F.3d 975, 983 (D.C.

Cir. 2011)). Under the majority opinion’s new-fangled

scheme, courts may not review the decisions of agency

employees who initiate investigations or grant, deny, or

revoke clearances, but courts may review the decisions of

agency employees who report security risks. The majority

opinion’s slicing and dicing of the security clearance process

2

into reviewable and unreviewable portions is nowhere to be

found in Egan, and it does not reflect the essential role that

the reporting of security risks plays in the maintenance of

national security.

***

To begin with, contrary to the majority opinion’s

approach, the Supreme Court in Egan consistently referred to

“the agency” – not to certain employees within an agency – as

the decisionmaker that may not be second-guessed in security

clearance cases. Consider the following from Egan:

• “[T]he grant of security clearance to a particular

employee . . . is committed by law to the appropriate

agency of the Executive Branch.” Egan, 484 U.S. at

527.

• “[C]ertain civilian agencies . . . were entrusted with

. . . protecting . . . information bearing on national

security.” Id. at 527-28.

• “Presidents . . . have sought to protect sensitive

information . . . by delegating this responsibility to the

heads of agencies.” Id. at 528.

• “Certainly, it is not reasonably possible for an outside

nonexpert body to review the substance of such a

judgment and to decide whether the agency should

have been able to make the necessary affirmative

prediction with confidence.” Id. at 529.

• “[A]n agency head . . . should have the final say in

deciding whether to repose his trust in an employee

who has access to [classified] information.” Id.

(citation omitted).

• “[T]he Senate and House Committees . . . gave no

indication that an agency’s security-clearance

3

determination was now to be subject to review.” Id. at

531 n.6.

• “Placing the burden on the Government” would

involve “second-guessing the agency’s national

security determinations.” Id. at 531.

In the face of the recurring “agency” theme in Egan, the

majority opinion here concludes that Egan protects only the

actions of certain agency employees. The majority opinion

relies on a single sentence in Egan that mentions “those with

the necessary expertise in protecting classified information.”

Id. at 529. But in that sentence, the Egan Court was simply

contrasting the expertise of agencies with that of outside

reviewing bodies, not implying that courts should draw a

reviewability line based on which employees of an agency

possessed certain amounts of expertise. The full quote from

Egan makes that clear:

Predictive judgment of this kind must be made by those

with the necessary expertise in protecting classified

information. For reasons too obvious to call for enlarged

discussion, the protection of classified information must

be committed to the broad discretion of the agency

responsible, and this must include broad discretion to

determine who may have access to it. Certainly, it is not

reasonably possible for an outside nonexpert body to

review the substance of such a judgment and to decide

whether the agency should have been able to make the

necessary affirmative prediction with confidence.

Id. (citation, ellipsis, and internal quotation marks omitted)

(emphases added).

4

Nothing in Egan’s language suggests that the Supreme

Court was only barring review of the security clearance

actions of “appropriately trained” employees, as the majority

opinion here contends. Maj. Op. at 6 (quoting Rattigan, 643

F.3d at 983). Nor have this Court’s decisions applying Egan

drawn the line that the majority opinion creates. Following

the Supreme Court’s lead, we have referred to the

decisionmaking process of the agency as a whole, not to

certain parts or employees of an agency, in employment

discrimination cases involving security clearance decisions.

See, e.g., Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir.

2005) (“trier of fact” may not “evaluate the validity of the

agency’s security determination”); Ryan v. Reno, 168 F.3d

520, 523 (D.C. Cir. 1999) (“Egan applies in a Title VII action

to preclude . . . a discrimination claim . . . resulting from an

agency security clearance decision”). The separation of

powers issue identified by the Supreme Court in Egan and

reflected in our subsequent decisions stems from the kind of

decision being made by the agency official – a predictive

judgment about security risks – not from the job title or

expertise of the agency official making the decision.

Moreover, the Supreme Court in Egan protected the

security clearance process as a whole. The Court did not

suggest that courts could review distinct parts of that process.

The majority opinion here, however, says that only the

initiation of security clearance investigations and the grant,

denial, or revocation of clearances are within the Egan rule.

In the majority opinion’s view, the reporting of security risks

is not within the Egan rule. I do not find that distinction in

Egan. Nor do I think it makes much sense. Investigations

and revocations of security clearances will often be prompted

by reports of misconduct. Reports of misconduct are an

essential part of the overall process of maintaining national

5

security and preventing those who may be security risks from

accessing sensitive government information. Egan protects

the front end of the security clearance process – including

reports of possible security risks – as much as it protects the

back end.

One powerful indication that the reporting of security

risks is important to national security and falls within the

Egan rule is that the President himself has required such

reporting. In an executive order issued by President Clinton

and still in effect, all federal employees with security

clearances must make a predictive judgment about what

constitutes suspicious behavior and report any such behavior

for investigation: “Employees 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). Egan recognized that the

“authority to protect such [national security] information falls

on the President as head of the Executive Branch and as

Commander in Chief.” Egan, 484 U.S. at 527. The Egan rule

thus covers reports made under President Clinton’s executive

order. See id. at 527-30. The majority opinion, however,

would allow courts to second-guess the decisions of agency

employees who report security risks pursuant to President

Clinton’s executive order. I cannot square that with Egan.

I appreciate and share the majority opinion’s concern

about deterring false reports that in fact stem from a

discriminatory motive. But there are a host of sanctions that

deter an agency employee from engaging in such behavior.

See, e.g., 71 Fed. Reg. 64,562, 64,563 (Nov. 2, 2006)

(Department of Justice “retains the right, where appropriate,

6

to discipline an employee for conduct that is inconsistent with

Federal Antidiscrimination and Whistleblower Protection

Laws up to and including removal”). And in any event, it is

not for us to revise the rule set forth in Egan; that’s a decision

for the Supreme Court or Congress.

***

The rule that the Supreme Court announced in Egan

applies “unless Congress specifically has provided

otherwise.” 484 U.S. at 530. If Congress wishes to re-strike

the balance between personnel and employment

discrimination laws on the one hand and national security on

the other, it is free to do so – either broadening or narrowing

the scope of the protection for agencies’ security clearance

decisions. Until Congress does so, however, we must apply

Egan according to its terms. Here, Rattigan claims that FBI

officials improperly decided to report him to security

clearance investigators. Under Egan, we cannot second-guess

the FBI’s decision. For that reason, Rattigan’s suit faces an

insurmountable bar, and I would dismiss it.

I respectfully dissent. When we vacated the prior panel

decision, we indicated that the parties would have an

opportunity to file new petitions for rehearing en banc after

our new opinion was issued. If the Government files a

petition for rehearing en banc in response to today’s

revamped but still-flawed majority opinion, I will urge the full

Court to grant it.