A federal appeals court in Washington has ordered a new trial in a retaliation suit against the FBI, saying the jury was mistakenly asked to assess government security clearance judgments that are not reviewable.
The plaintiff, Wilfred Rattigan, a former FBI legal attaché in Saudi Arabia, alleged the bureau retaliated against him for complaining about race and national origin discrimination. Rattigan, who now works for the FBI in South Africa, won a $300,000 verdict in U.S. District Court for the District of Columbia. DOJ appealed.
The U.S. Court of Appeals for the D.C. Circuit vacated the judgment in a ruling June 3, saying the jury instructions were flawed. The jury, the appeals court said, was asked to second-guess security judgments that are outside of judicial review.
The court, however, in a 2-1 ruling, said Rattigan’s case can proceed as long as the jury is not asked to evaluate the FBI’s security clearance decisions. The appeals court said the heart of Rattigan’s claim “implicates neither the denial nor revocation of his security clearance nor the loss of employment from such action.”
The Justice Department urged the D.C. Circuit to set aside the verdict entirely and dismiss the case. DOJ lawyers claimed Rattigan’s suit impermissibly asked the jury to decide a question of national security.
Central to Rattigan’s suit is the FBI’s referral of him for a security investigation, a move he alleged was retaliatory for discrimination complaints. Rattigan, who is black, converted to Islam in December 2001.
“The referral alone created the very real possibility not only that Rattigan would face a stressful and potentially reputation-damaging investigation, but also that the FBI would revoke his security clearance and terminate his employment,” Judge David Tatel said in the majority opinion, joined by Judge Judith Rogers.
Juries, Tatel said, are not allowed to review security decisions made by the FBI’s Security Division, “not the actions of thousands of other FBI employees who…may from time to time refer matters to the Division.”
Writing in dissent, Judge Brett Kavanaugh said the majority judges are “slicing and dicing” the security clearance process in a way the U.S. Supreme Court in 1988 did not allow in Department of Navy v. Egan. The high court in Egan said the Merit Systems Protection Board had no authority to review an agency decision to deny the denial of a security clearance to an employee who then lost his job.
“Under the majority opinion’s scheme, courts may not review the decisions of agency employees who initiate investigations or grant, deny, or revoke clearances, but courts may review the decisions of agency employees who report security risks,” Kavanaugh said. “The majority opinion’s slicing and dicing of the security clearance process into reviewable and unreviewable portions is nowhere to be found in Egan, and does not reflect the essential role that the reporting of security risks plays in the maintenance of national security.”
A lawyer for Rattigan, Jonathan Moore of New York’s Beldock Levine & Hoffman, who practices in civil rights and employment law, said he was pleased the D.C. Circuit did not outright block Rattigan from pursuing his retaliation claims. But Moore, who argued for Rattigan in the D.C. Circuit in December, said he was disappointed the appeals court vacated the $300,000 judgment.
Moore said the Justice Department is to be blamed for any error in the jury instructions and that the appeals court should not have awarded the government by vacating the judgment.
The Justice Department, Moore said, took an “extreme” position in the litigation that, if adopted, would have provided federal agency officials a roadmap for retaliation without impunity. He called the D.C. Circuit decision important in the employment law arena.
Moore called the D.C. Circuit ruling a “pyrrhic” victory. “We established a great principle of law but my client lost,” he said. “We feel confident we can retry the case and make it a better for us.”