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.”
- D.C. Circuit Grants Panel Rehearing in FBI Title VII Case Based on Retaliatory Security-Clearance Reporting, D.C. Circuit Review (Sept. 16, 2011).
- Judge Kavanaugh Three-peats Three-Mile Victory, D.C. Circuit Review (May 30, 2012) (“Judge Kavanaugh let Team Navy win the fastest overall team award in deference to the Executive branch.”).
- Is the D.C. Circuit Too Small To Go En Banc?, D.C. Circuit Review (May 29, 2012).