Divided Panel OKs Retaliation Suit for Security Risk Reporting (Again) Over Call for Full Court Rehearing

After the unusual decision to grant panel rehearing in September, a divided D.C. Circuit panel issued a second set of opinions in Rattigan v. Holder [pdf].  But the original separation of powers disagreement proved intractable, and both sides ended up close to where they started.  

Judge Tatel, writing for himself and Judge Rogers, held for a second time that a plaintiff may state a Title VII retaliation claim against the FBI officials who reported security risks leading to the loss of plaintiff’s security clearance. But to Judge Kavanaugh, in dissent, the Supreme Court’s statement in Department of the Navy v. Egan, 484 U.S. 518 (1988), that agencies responsible for classified information have “broad discretion to determine who may have access to it,”  places an absolute bar on judicial review of all security clearance decisions, including an official’s decision to report security risks up the chain of command.

The warmed-over opinions do contain some new twists.

The majority opinion revises the standard of Title VII liability for reporting false allegations of security risks. In its original opinion, the majority had held that a plaintiff may show pretext by persuading the jury by a preponderance of the evidence that the defendant “knew or should have known” that his accusations were false or misleading. The Government argued that this standard was inconsistent with the relevant Executive Order’s broad instruction to report “any information that raises doubts” about an employee’s eligibility for a security clearance and would chill reporting. On rehearing, the majority agreed and limited liability to “knowingly false” reporting. Under this new standard, the only question for the jury “is whether the reporting employee actually knew at the time of the reporting that the information he provided was actually false.”

Although the court had vacated its original opinion when it granted rehearing, the majority reinstated that opinion “to the extent consistent with” its new decision.

Unpersuaded by the majority’s “slight[] tweaking” of its original decision, Judge Kavanaugh’s dissent on rehearing ups the ante by calling for rehearing en banc–a move he did not make in his original dissent.  “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.”  

On Rehearing: Rattigan v. Holder, No. 10-5014, (D.C. Cir. 2011) (Tatel, J., joined by Rogers, J., with Kavanaugh, J., dissenting)

Original Decision: Rattigan v. Holder, No. 10-5014, 643 F.3d 975 (June 3, 2011) (Tatel, J., joined by Rogers, J., with Kavanaugh, J., dissenting)

See also:

Cf.:

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s