A divided federal appeals court in Washington today limited the scope of liability in an FBI agent's retaliation suit against the bureau, but the court, according to one judge, didn't go far enough.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued a revamped ruling in the agent's suit, saying that the government convinced the court that its earlier ruling was too broad.
At issue is the extent to which there can be civil rights liability in the reporting of sensitive information that's used to make a security clearance decision. Longtime FBI agent Wilfred Rattigan, a black male of Jamaican descent who converted to Islam, is at the center of the dispute. He contends the bureau retaliated against him--based on a person's report of alleged suspicious activity--after he raised concerns about alleged discrimination.
DOJ sought broad immunity over the act of reporting information, saying that any liability would create a situation in which an employee hesitates and doesn't pass along information to superiors. That hesitation could compromise the integrity of security clearance decisions, DOJ lawyers said.
Today, the D.C. Circuit panel—judges Judith Rogers, David Tatel and Brett Kavanaugh—set out a new standard in civil rights suits rooted in security clearance decisions. Rogers and Tatel said a civil rights claim can proceed in a trial court if the plaintiff can prove that a person knowingly reported false information about a colleague.
Claims are limited, then, on the referral of knowingly false information, the majority said, not on the security clearance decision itself. The court refused to go along with a broader immunity scheme the Justice Department sought. In that scheme, there would be immunity even in the referral of information.
Rogers and Tatel, who wrote the majority opinion, said Rattigan's claims "may proceed only if he can show that agency employees acted with a retaliatory or discriminatory motive in reporting or referring information that they knew to be false."
Tatel and Rogers said DOJ made "powerful" arguments in convincing the court to rehear Rattigan's case and issue a revised decision. DOJ asked the appeals court to bar reporting and referral claims altogether from civil rights liability. The majority opinion described the government position as seeking "sweeping immunity" from liability.
Federal agencies, Tatel said, don't have any greater competence in deciding what one person knew at a particular time and whether that employee intentionally reported false information about a colleague. Those determinations, the judge said, are the "quintessential function" of a jury.
"[T]hough allegations of knowing falsity may be easy to make, they are, in our experience, far from easy to prove," Tatel said. "If this evidentiary difficulty fails to deter unfounded claims, district courts can be counted upon to weed them out at summary judgment."
Tatel said that "were we to declare all reporting-based claims nonjusticiable, federal employees could no longer seek redress for the harm caused when a coworker fabricates security concerns in retaliation for statutorily protected activity, and Congress's purpose in enacting Title VII would be frustrated."
Any chilling effect on allowing Rattigan's case to proceed, the majority said, is "negligible."
Writing in dissent, Kavanaugh said the "slightly tweaking" of the opinion doesn't go far enough to protect the ability of federal agency employees to provide information that potentially bears on security clearance decisions.
"Under the majority opinion's new-fangled 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 "slicing and dicing" of what courts can review, Kavanaugh said, is nowhere found in Supreme Court precedent and "it does not reflect the essential role that reporting of security risks plays in the maintenance of national security."
Kavanaugh said he appreciates and shares "the majority opinion's concern about deterring false reports that in fact stem from a discriminatory motive." Agencies, Kavanaugh said, have sanctions that can deter an employee from making a false report.
At the end of his dissent, Kavanaugh threw his support to the Justice Department if the government decides to ask the full court to hear the dispute. Kavanaugh said he'd vote for a full-court review.