Federal courts of appeals do not grant petitions for rehearing en banc very often. Three-judge panels grant petitions for rehearing and new arguments even less often. So it is interesting to see that the U.S. Court of Appeals for the D.C. Circuit has granted a panel rehearing, complete with supplemental briefing and another oral argument, in Rattigan v. Holder. In this case, an FBI employee alleges that he was subject to a security investigation as retaliation for filing discrimination complaints. The FBI argued that Rattigan’s claim was nonjusticiable, as it would require a court to examine and second-guess national security judgments that are committed to the FBI’s discretion.
In its original decision, the D.C. Circuit rejected the FBI’s defense 2-1. Judge Tatel wrote the opinion for the court, joined by Judge Rogers, holding that a federal court could review decisions to report potential security risks, even if it could not review any subsequent security-clearance decision made by government officials charged with making such decisions. Judge Kavanaugh dissented, objecting to the majority’s narrow reading of the relevant precedent and its “slicing and dicing of the security clearance process into reviewable and unreviewable portions.”
The order granting rehearing asks for additional briefing focuses on three questions relating to the scope of Supreme Court precedent committing national security clearance decisions to agency discretion. I’ve reproduced the questions below the jump.
(1) Does Egan’s bar on judicial review of national security clearance decisions extend to actions by employees outside of the Security Division?
(2) If Egan’s bar does not extend to decisions by employees outside the Security Division, would allowing Title VII retaliation claims against such employees chill their reporting of information involving suspicion of national security concerns to the Security Division pursuant to Executive Order 12,968? If so, why? Would departmental complaint procedures not also chill such reporting?
(3) If the court were to allow Title VII retaliation claims based on referrals of knowingly false information, does any record evidence in this case support such a claim? If not, should a remand be ordered?