News on Security Clearances: On October 31, 2013, Judge Huvelle of the U.S. District Court for the District of Columbia issued the latest decision on the long-running matter of Rattigan v. Holder, a case which focuses on the nexus (connection) between discrimination law and security clearances.
As previously analyzed by Passman & Kaplan in the Federal Legal Corner, the Rattigan case involves a situation where negative information regarding a federal agency employee, Rattigan, was provided to the agency’s security office in hopes of calling Rattigan’s security clearance into question. In response, the security office reviewed the submission and decided to open an investigation into Rattigan’s security clearance. The security office concluded after its investigation that the allegations against Rattigan were unfounded or unsubstantiated, and left Rattigan’s security clearance intact.
The initial 2011 decision by the U.S. Court of Appeals for the D.C. Circuit held that the courts had jurisdiction to hear discrimination complaints concerning wrongful attempts to jeopardize an employee’s security clearance by reporting information to the agency’s security office. On request for rehearing in 2012, the D.C. Circuit modified its prior decision and narrowed the scope of discrimination claims, only permitting discrimination complaints to go forward in cases where the discriminating official provided knowingly false information to the security office.
On remand, Judge Huvelle granted the Department of Justice’s motion for summary judgment. Judge Huvelle combined the D.C. Circuit’s modified Rattigan standard with the Supreme Court’s 2013 decision in Nassar to require that Rattigan show that the knowingly false information provided to the security office was “the cause” for referring Rattigan for a security clearance investigation. Finding that not all of the allegations against Rattigan were knowingly false, Judge Huvelle entered judgment against Rattigan.
If you have questions regarding issues concerning your security clearance or your application for a security clearance or concerning possible issues of discrimination, please feel free to contact Passman & Kaplan to request an initial consultation.