Lawyers representing an FBI agent in a retaliation suit against the agency have asked a federal appeals court in Washington to keep intact its ruling that sent the case back to the trial court for further proceedings.
The plaintiff, Wilfred Rattigan, who’d won a $300,000 judgment in Washington federal district court on claims that the FBI retaliated against him, said the appellate ruling in the case, while flawed, should not be overturned.
A divided U.S. Court of Appeals for the D.C. Circuit in June remanded the case for further proceedings, vacating the judgment but not blocking a second trial.
In his complaint, Rattigan, a former legal attaché in Saudi Arabia, alleged the FBI retaliated against him for his complaints about race and national origin discrimination. Rattigan, a Jamaican-born Muslim, said supervisors created a report about him and sent it to the agency’s security division to investigate his security clearance.
Rattigan’s lawyers, Jonathan Moore of New York’s Beldock Levine & Hoffman and James Klimaski & Associates, in Washington, said in court papers (PDF) filed Aug. 26 that the U.S. Justice Department has taken an “extreme” position in the litigation.
Under the DOJ scheme, Rattigan’s attorneys said, an executive branch employee at any level “would be free to discriminate and retaliate against their colleagues as long as they characterize their discrimination or retaliation as related to a security clearance.”
“Vast categories of people would lose their right to be free from discrimination and retaliation in the workplace,” Rattigan’s lawyers said.
The appeals court majority voted to send Rattigan’s suit back to the trial court. The D.C. Circuit said the jury instructions were flawed because they allowed jurors to consider FBI Security Division decisions. Rattigan’s attorneys said they do not think the jury instructions were improper.
The Justice Department said in court papers (PDF) filed July 25 that the full court should reverse the panel ruling.
DOJ lawyers called the panel decision “unprecedented and erroneous.” The department said the ruling “is also likely to have significant adverse consequences.”
DOJ said the decision invites courts to second-guess decisions to report security concerns and imposes a “vague new standard.”
Charles Scarborough, a Civil Division lawyer, said in a brief that agency employees may refrain from or delay reporting information to verify security concerns, potentially compromising investigations.
“Even a single instance of such conduct could have an adverse impact on the national security of the United States,” Scarborough wrote.
DOJ lawyers cited what they called a real-world example of the panel decision’s “potentially disastrous consequences.” The department pointed to the case involving former FBI Special Agent Robert Hanssen, sentenced to life in prison in 2001 on espionage charges.
“[Suppose] that in 2000, an FBI agent heard that then-Special Agent Robert Hanssen was supporting both a stripper and a large family on his GS-13 salary. Such an allegation, though outrageous and likely difficult to verify, would be relevant to Hanssen’s ability to hold a security clearance, and should properly have been reported for consideration by the Security Division.”
The employee who reported that information, DOJ said, may not have believed it was true “but he should not have attempted to verify it because such action could have tipped off the subject, influenced possible witnesses, or otherwise impeded the Security Division’s ability to conduct an effective investigation.”
DOJ lawyers contend there are “compelling” reasons for employees to report “even doubtful or potentially untrustworthy” information.
“The reliability of final security clearance decisions—indeed, the ability to identify potential security risks at all—necessarily depends on the proper officials having full and complete access to all potentially relevant information, including information the employee might believe is not directly relevant or accurate,” Scarborough said.
Rattigan’s attorneys said the Hanssen reference has no relevance to Rattigan’s case, in which four employees allegedly “conspired to create a false and misleading report.”
Knowingly false information, Rattigan’s lawyers said, is not similar to information that is difficult to verify but possibly true. “Discouraging deceitful reporting enhances national security rather than harming it,” Moore said in court papers.
The D.C. Circuit has not yet ruled on whether to rehear the case.