The Justice Department today urged the full U.S. Court of Appeals for the D.C. Circuit to hear a dispute over what part of the security clearance process federal trial judges have the power to review.
A divided panel in July, for the second time, refused to wall off from judicial review decisions that are made in the early stages of the clearance process, including the reporting of potential security risks. The court kept alive a retaliation suit an FBI agent, Wilfred Rattigan, lodged over allegations that a supervisor made a false security risk report against him.
The appeals court, trying to narrow its earlier decision, said that trial judges have the authority to review a "knowingly false" report of a security risk, but not the decision on whether or not to grant a security clearance. Today, DOJ lawyers said in a petition for a full-court hearing: "The unprecedented line-drawing enterprise the majority’s ruling now requires is not only wrong, it is completely unworkable."
DOJ lawyer Charles Scarborough of the Civil Division said in the court papers filed today that the D.C. Circuit decision will have "significant adverse consequences." Allowing a civil rights claim to proceed based on a front-end report of a security risk will "compromise security investigations and thus the integrity of all phases of the security clearance process," Scarborough said.
The "knowingly false" standard that the appeals court crafted, Scarborough said, will require a "detailed inquiry" about the veracity of the reported security risk information.
"This inquiry will be difficult to resolve before trial, and it is hopelessly intertwined with the security-related merits of the judgment that certain information 'raises doubts' about whether another employee’s access is 'clearly consistent with the national security,'" Scarborough said.
Rattigan was the FBI's legal attaché in Riyadh, Saudi Arabia, when a supervisor in 2002 referred a report he'd received about Rattigan to the bureau's security division for a possible investigation. The security division initiated a probe into whether Rattigan's security clearance should be revoked. The investigation concluded revocation of that clearance wasn't justified.
The D.C. Circuit earlier vacated a jury verdict that favored of Rattigan. The verdict, the court said, impermissibly allowed the jury to second-guess the FBI security division's decision making. The court, however, determined Rattigan's suit was potentially still viable. The court has twice remanded the case to the trial level for further proceedings. But DOJ is now trying to convince the full court to take up the dispute.
The appellate panel majority—Judges Judith Rogers and David Tatel—remanded the case to the trial level to allow a judge there to determine whether Rattigan can challenge the initial decision to refer him as a potential security risk. The panel majority said the trial judge should find out whether there's enough evidence of "knowing falsity" in that security risk report to proceed to a jury trial on the retaliation claim.
In the majority opinion, Tatel wrote 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."
Voting in dissent to terminate Rattigan's suit, Judge Brett Kavanaugh said his colleagues' "slicing and dicing of the security clearance process into reviewable and unreviewable" isn’t found in the controlling U.S. Supreme Court case Department of the Navy v. Egan, which was decided in 1988. In that case, the high court said the review of the revocation of a security clearance is outside the scope of judicial authority.
The Supreme Court ruling in Egan, Kavanaugh said, "protects the front end of the security clearance process—including reports of possible security risks—as much as it protects the back end." Rogers and Tatel said the Egan decision shields from judicial review only the security-related decisions that certain agency officials make.
DOJ lawyers said they're concerned the majority decision will give plaintiffs a roadmap to circumvent Egan by alleging, in the first place, that a particular risk report was "knowingly false."
The government also contends the security clearance process will be corrupted because an executive order in place imposes a broad mandate on employees to report more information than less when it comes to potential security risks.
Given that Executive Order 12,968 "requires employees to report even the most doubtful information—and virtually all information at the reporting stage will be somewhat doubtful because it has not yet been investigated—'knowing falsity' review will seriously disrupt the security clearance process," Scarborough said in court papers.
The full D.C. Circuit did not immediately say whether it will hear Rattigan's case.