In a rare move, a three-judge panel of the D.C. Circuit granted the Government’s petition for rehearing in Rattigan v. Holder, No. 10-5014, 643 F.3d 975 (D.C. Cir. 2011) (Tatel, J.) on Tuesday. In the Court’s original decision, which the Court vacated when it granted rehearing, the Court held that a Government employee’s Title VII claim can go to a jury if his claim is based on retaliatory security risk referrals by fellow employees outside the FBI’s Security Division. According to the majority, the Supreme Court’s decision in Dep’t of Navy v. Egan, 484 U.S. 518 (1988) “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 . . . supervisors, may from time to time refer matters to the Division.” 643 F.3d at 983. Judge Kavanaugh dissented on the ground that the majority improperly narrowed Egan‘s holding that “the protection of classified information must be committed to the broad discretion of the agency responsible.” 484 U.S. at 529.
In its order granting rehearing, the Court ordered the parties to brief three questions:
(1) Does Egan’s bar on judicial review of national security clearance decisions extend to actions by employees outside of the Security Division?
(2) If Egan’s bar does not extend to decisions by employees outside the Security Division, would allowing Title VII retaliation claims against such employees chill their reporting of information involving suspicion of national security concerns to the Security Division pursuant to Executive Order 12,968? If so, why? Would departmental complaint procedures not also chill such reporting?
(3) If the court were to allow Title VII retaliation claims based on referrals of knowingly false information, does any record evidence in this case support such a claim? If not, should a remand be ordered?
- Jonathan H. Adler at The Volokh Conspiracy reports on Rehearing Security-Investigation-as-Retaliation Case