The lawyers representing an FBI agent in a retaliation suit against the bureau are urging a federal appeals court in Washington not to disturb a three-judge panel decision that kept the case alive and alarmed the U.S. Justice Department.
The U.S. Justice Department recently asked the full U.S. Court of Appeals for the D.C. Circuit to overturn the panel decision.. The ruling ordered additional proceedings in the trial court to explore the retaliation claim that the FBI agent, Wilfred Rattigan, lodged against the bureau.
Rattigan contends the FBI targeted him for possible revocation of his security clearance based on a discrimination complaint he filed. The agency, however, ultimately did not pull Rattigan's clearance. He alleges in the suit in Washington's federal trial court that bureau officials reported false security-related information about him, potentially jeopardizing his career.
Federal trial judges don't have the authority to review an executive agency's denial or revocation of a security clearance. But can judges review the report of allegedly unfounded information about a person? Rattigan's lawyers on Wednesday argued in support of the power of judges to review reports of false information.
A divided D.C. Circuit panel said Rattigan's kept alive Rattigan's case. A trial judge must determine whether there's enough evidence of "knowing falsity" to allow a jury to hear Rattigan's retaliation claim, the panel majority said. The court's ruling, the second of two in the case, is here.
The Justice Department argues the panel decision, issued in July, will have serious adverse consequences, potentially leading agency officials to shy from reporting concerns about a colleague. Two judges ruled in favor of Rattigan. Judge Brett Kavanaugh wrote in dissent, saying that the panel created a "new-fangled scheme" that involves the "slicing and dicing" of information and decisions that can be subject to judicial review.
Rattigan's lawyers, Jonathan Moore of New York's Beldock Levine & Hoffman and James Klimaski of Klimaski & Associates in Washington, urged the appeals court not to disturb the panel's decision.
Rattigan, his lawyers said, is not challenging the substance of a security clearance. Instead, he is fighting "the reporting of false accusations about his loyalty."
The attorneys said DOJ wants to expand the law to give executive branch agencies impunity to violate civil rights "so long as the illegal discrimination or retaliation is carried out under the guise of reporting entirely unfounded 'security concerns.'"
Rattigan's lawyers dismiss the Justice Department's concern that the panel ruling will impede the flow of security-related information. Moore and Klimski said a person who reports false information is already subject to internal discipline, including termination.
The lawyers said the D.C. Circuit opinions "are fully in line with the government's expressed interests in encouraging the broad reporting of legitimate security concerns and discouraging false reports."
The Justice Department also said the majority ruling will create "perverse incentives" in which executive branch officials could be encouraged to revoke a person's security clearance, after an investigation is underway, to insulate decision-making from review in federal district courts.
"Despite the government’s cynical view, it is hard to imagine that Executive agencies will find it expedient to revoke a security clearance every time there is a security investigation, simply to avoid the prospect, however unlikely, of judicial review," Rattigan's attorneys said.
The lawyers said it's "disconcerting for the government to suggest that if this court refuses to shield Executive agencies from Title VII liability then they will surreptitiously find a way to shield themselves."
The full D.C. Circuit hasn't said whether it will review the panel decision. Kavanaugh, who sided with the government in the appeal, supports the full-court rehearing of the dispute.