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Court Review of Information Disclosure

On June 3, 2011, the U.S. Court of Appeals for the District of Columbia Circuit issued its decision in Rattigan v. Department of Justice, Case No. 10-5014. The court held that disclosing negative information regarding a federal agency employee to the agency’s security office in hopes of calling that employee’s security clearance into question was not immunized from court review.

Rattigan worked for the FBI and was stationed at a legal attaché office in the U.S. embassy in Riyadh, Saudi Arabia. During his tenure in Saudi Arabia, Rattigan filed several complaints of workplace discrimination against the FBI. One of the officials whom Rattigan accused of discrimination brought a co-worker into the Riyadh office on a 21-day assignment. After returning to the USA, this coworker then proceeded to draft an extensive email to the FBI’s security office, itemizing a list of allegations about Rattigan. Another of the officials whom Rattigan accused of discrimination edited this statement and submitted it to the agency’s security office with a cover letter noting that Rattigan had a discrimination complaint pending against the FBI (and against that official in particular). 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.

Rattigan filed suit against the FBI in federal court, alleging numerous claims of discrimination and retaliation. All claims were dismissed or lost on summary judgment, except for Rattigan’s claim that the FBI retaliated against him by having a security investigation initiated against him. Right before trial, some five years into the litigation, the government moved to dismiss on the grounds that Rattigan’s reprisal claim was a security clearance matter excluded from the court’s jurisdiction by the Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), which had declared security clearance matters to be solely committed to the executive branch and not reviewable by the courts. The trial court denied the motion to dismiss and the jury found in favor of Rattigan at trial. The government then appealed to the D.C. Circuit.

On appeal, the D.C. Circuit again rejected the government’s argument. The court held Egan only immunized that portion of the security clearance process that actually involved the deliberations of the security office on whether to grant a clearance. The court distinguished Rattigan’s situation, as it instead involved the decision by persons outside the security office to provide negative information to the security office in hopes of drawing a security clearance investigation. The court noted that the issue of whether or not Rattigan’s clearance should be revoked was not under consideration, since in fact Rattigan had kept his clearance after the investigation.

The court analogized this to the provision of potentially false information to a prosecutor in hopes of drawing a criminal prosecution, and thus cognizable as a materially adverse action which could give rise to an EEO reprisal lawsuit. The court noted that this distinction could, in many cases, still lead to cases involving security clearances being immunized from judicial review under Egan, and that such cases might turn on the issue of whether the person providing information to the security office had reason to believe that the information being provided was false or misleading.

However, the court remanded the case for a new trial, finding that the jury instructions would properly draw the distinction between the jury properly reviewing the provision of information to the security office and the jury improperly reviewing the deliberations within the security office on whether or not to initiate an investigation. One judge dissented from the majority’s opinion, reading Egan as more broadly immunizing the entire security clearance process from court review.