One of the highest-ranking Arab-American agents at the FBI today won a second chance to pitch a discrimination claim rooted in allegations the bureau bypassed him for a key counterterrorism role after the Sept. 11 attacks.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit revived discrimination claims that the agent, Bassem Youssef, an Egyptian-born American citizen, filed against the FBI in Washington's federal trial court.
The appeals court, however, upheld a jury's verdict that rejected Youssef's retaliation claims against the FBI. The discrimination part of the suit alleged the FBI should have put Youssef in a substantive counterterrorism role after the Sept. 11 attacks. The suit was first filed in 2003.
Youssef claimed in the complaint that the FBI should have used his experience and language skills in a counterterrorism position following the terror attacks. Youssef was instead placed in a new program in the FBI that examined written material seized in Afghanistan and Pakistan.
Youssef's lawyers said in court papers that his role in the document review program was "limited to sitting at a desk sifting through piles of potentially worthless paper in the hope that that some intelligence value could be gleaned."
Justice Department lawyers, the appeals court noted, argued that Youssef's placement in the document program was not a "materially adverse" action because he was subsequently promoted to the chief of the unit.
DOJ lawyers said the unit wanted an agent with counterterrorism experience who could read Arabic and assess the potential investigative value of information.
"But making the best of a bad situation should not be held against a claimant" and does not mean that Youssef forfeited his discrimination claim, Judge Thomas Griffith wrote for the panel. Griffith heard the case with senior judges Stephen Williams and A. Raymond Randolph.
The appeals court said the trial judge in the case, Colleen Kollar-Kotelly, concluded that Youssef's placement in the FBI document program was not materially adverse. The judge, then, did not consider whether the government's explanation for the placement was pretextual, obscuring another reason.
"Because the district court did not reach this fact-intensive issue, and the parties did not fully brief it to us, we remand for further examination of the FBI's reason for the transfer," Griffith wrote in the D.C. Circuit opinion.
Youssef's lawyer, Stephen Kohn, the whistleblower specialist who is representing FDA scientists in a case over the agency's e-mail spying program, was not immediately reached for comment today.