Rattigan v. Holder

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 7, 2010 Decided June 3, 2011

No. 10-5014

WILFRED SAMUEL RATTIGAN,
APPELLEE

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, UNITED STATES
DEPARTMENT OF JUSTICE,
APPELLANT

Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-02009)

Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellant. With him on the briefs
was Ronald C. Machen Jr., U.S. Attorney, and Marleigh D.
Dover, Assistant Director. R. Craig Lawrence, Assistant U.S.
Attorney, entered an appearance.

Jonathan C. Moore argued the cause for appellee. With
him on the brief was James R. Klimaski,

Before: ROGERS, TATEL, and KAVANAUGH, Circuit
Judges.
 2
Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

TATEL, Circuit Judge: In this case, a jury found that the
FBI violated Title VII of the Civil Rights Act of 1964 by
launching a security investigation of plaintiff, then an agent in
its Saudi Arabia office, in retaliation for his filing of a
discrimination complaint. On appeal, the government argues
that plaintiff’s claim is nonjusticiable under Supreme Court
and D.C. Circuit case law because adjudicating Title VII
liability called for the jury to second-guess security judgments
committed by law to FBI discretion. Because we agree that
plaintiff’s case, as presented to the jury, invited just such
second-guessing, we vacate the judgment in plaintiff’s favor.
But because we also believe that plaintiff might be able to
pursue his retaliation claim without calling into question
unreviewable security decisions, we remand for further
proceedings consistent with this opinion.

I.
Plaintiff-Appellee Wilfred Rattigan is a black male of
Jamaican descent who has converted to Islam. He has worked
for the FBI since 1987. In 1999, the FBI transferred Rattigan
to the Office of the Legal Attaché at the United States
Embassy in Riyadh, Saudi Arabia. The FBI has Legal Attaché
offices, also known as “LEGAT” offices, in over forty
countries. See Rattigan v. Holder (“Rattigan I”), 604 F. Supp.
2d 33, 37 (D.D.C. 2009). Agents in these offices function as
liaisons to security services in their host countries. LEGAT
offices are usually run by two agents, referred to respectively
as the Legal Attaché (“LEGAT”) and the Assistant Legal
Attaché (“ALAT”), as well as by temporary duty staff. Id.
LEGAT offices report to the FBI’s Office of International
Operations (OIO), located in Washington, D.C. Id. at 38.
 3
Having initially served as ALAT in the Riyadh office,
Rattigan was promoted to LEGAT in July 2000.

During his tenure in the Riyadh office, Rattigan made
several complaints of workplace discrimination. Of particular
relevance to this case, he filed a report with the Equal
Employment Opportunity (EEO) Office on October 26, 2001,
alleging racial and national origin discrimination. This report
followed a confrontation between Rattigan and his immediate
supervisor, OIO Unit Chief Cary Gleicher, while Gleicher
was visiting the Riyadh office in mid-October 2001. In a one-
on-one meeting and then later in an office-wide meeting,
Rattigan accused Gleicher and two other OIO supervisors—
Section Chief Michael Pyszczymuka and Deputy Assistant
Director Leslie Kaciban—of rejecting his office’s requests for
additional assistance and weapons on account of his race.
Rattigan also claimed that the FBI sent Gleicher to visit the
Riyadh office only because of Rattigan’s race. Returning to
Washington, Gleicher informed Pyszczymuka and Kaciban of
Rattigan’s complaints. On November 9, 2001, an EEO
counselor interviewed Rattigan about his complaint, which
included the allegations he had previously raised with
Gleicher, as well as other issues, such as Rattigan’s
contention that Kaciban had made racially tinged threats. At a
conference in January 2002, Rattigan personally informed
Gleicher and Pyszczymuka that he was pursuing
discrimination claims against them. An EEO counselor met
with Kaciban, Gleicher, and Pyszczymuka about Rattigan’s
complaint on January 10, 2002.

At around the same time, the events giving rise to the
FBI’s security investigation of Rattigan began unfolding. In
late November 2001, Gleicher sent OIO Special Agent
Donovan Leighton on a twenty-one day assignment to the
Riyadh office, during which Leighton supposedly became
 4
concerned about Rattigan’s behavior and management of the
office. For example, on several occasions Leighton saw
Rattigan wearing “full Saudi Arabian costume” while in the
U.S. embassy. Considering this “very unusual,” Leighton and
other staff wondered whether Rattigan might be
“inappropriately under the influence of his Saudi
counterparts.” Trial Tr. at 57–60 (July 23, 2009). Leighton
also claimed he heard Rattigan talk about hosting “a fairly
wild party” attended by several women described as “nurses.”
Id. at 62. According to Leighton, temporary duty personnel
recounted other similarly raucous events hosted by Rattigan.

Following a short vacation, Leighton returned to OIO’s
Washington Office in January 2002, becoming interim desk
officer for LEGAT Offices in Pakistan and the Middle East,
including the Riyadh office. Leighton testified that his
interactions with Rattigan during this time led him to become
more concerned, especially given the importance of
Rattigan’s office to the FBI’s mission in light of the
September 11, 2001 terrorist attacks. After consulting his OIO
supervisors, Leighton documented his concerns in an
electronic communication, i.e., a memorandum written for
internal use by FBI agents and other employees.

In his electronic communication, which he began drafting
in the end of January and completed in March, Leighton
reported, among other things, (1) that Rattigan occasionally
wore Saudi national clothing he had received as a gift from
the Saudi security service, creating the impression he had
“gone native,” (2) that Rattigan’s Saudi colleagues were
attempting to find him a “suitable wife,” (3) that Rattigan
hosted wild parties attended by other agents and by female
“nurses,” a term that might have “be[en] used by . . . Rattigan
as a euphemism for ‘prostitutes,’ ” (4) that Rattigan and his
assistant, Abdel-Hafiz, were inattentive to the FBI’s
 5
investigation of the September 11 attacks, (5) that Rattigan
took an extended absence to make a pilgrimage to Mecca
along with Abdel-Hafiz and their Saudi counterparts during
which he could be contacted only through the Saudi security
service, and (6) that Rattigan refused to allow temporary duty
staff to interact directly with the Saudi security service.
Leighton gave a draft of the electronic communication to
Pyszczymuka who then returned it (along with suggestions
made by his assistant) and directed Leighton to address the
final communication to the attention of the Security
Division’s Section Chief, Edward Shubert. When
Pyszczymuka received the revised electronic communication
from Leighton, he forwarded it along to the Security Division
together with a cover memo acknowledging Rattigan’s
pending discrimination complaint against OIO supervisors
including himself and asking the Division to “peruse the
[communication] and consider any potential security issues,
making the appropriate referrals.”

In response to this referral, Shubert reviewed Leighton’s
electronic communication and decided to initiate a security
investigation. The investigation was conducted by the
Division’s Analytical Integration Unit, which, due to staffing
constraints, obtained two additional investigators from the
FBI’s Inspection Division. See Rattigan I, 604 F. Supp. 2d at
44. One of those investigators, Cheryl Tucker, interviewed
sixteen FBI employees previously assigned to the Riyadh
office, including Leighton, and filed a report concluding that
“the potential risks to FBI security and information, as
documented by . . . Leighton, are unfounded.” More
specifically, Tucker found that the information obtained from
her interviews “failed to support . . . Leighton’s assertions that
the women described as ‘nurses’ were prostitutes.” Instead,
she concluded, the women were actual nurses who attended
parties at diplomatic residences. Tucker also found no support
 6
for Leighton’s suspicion that Rattigan’s relationship with
Saudi intelligence officials revealed foreign influence. After
conducting its own review of the evidence, the Analytical
Integration Unit reached the same conclusion, issuing a final
report finding “no security risk present relative to the issues of
allegiance, foreign influence, or personal conduct on the part
of LEGAT Rattigan.” The Unit’s report also indicated that
Leighton’s assertions regarding Rattigan’s supposed inactivity
in the FBI’s September 11 investigation “lack[ed]
corroboration and [were] unfounded.” Accordingly, the
Security Division closed the investigation.

Rattigan filed suit in 2004, raising several claims of
unlawful discrimination and retaliation under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. In a series
of rulings, the district court dismissed or granted summary
judgment to the government as to all claims save one:
Rattigan’s contention that the FBI retaliated against him “for
complaining that OIO officials had discriminated against him
on the basis of his race and national origin” by subjecting him
to a security clearance investigation. See Rattigan v. Holder
(“Rattigan II”), 636 F. Supp. 2d 89, 90 (D.D.C. 2009)
(summarizing this procedural history). On the eve of trial, the
government filed a motion to dismiss, arguing for the first
time that Rattigan’s retaliation claim was nonjusticiable
because, according to the government, it would require the
jury to second-guess national security judgments committed
by law to FBI discretion. The district court denied the motion.
See id. at 91, 95. Following trial, the jury returned a verdict
for Rattigan, and the district court denied the government’s
post-trial motions.

The government now appeals, focusing primarily on its
argument that Rattigan’s Title VII claim is nonjusticiable. Our
review is de novo. See Kaufaman v. Mukasey, 524 F.3d 1334,
 7
1337 (D.C. Cir. 2008) (reviewing de novo the district court’s
dismissal of a complaint on the ground that it challenged a
decision committed to the Attorney General’s discretion).

II.
As the Supreme Court explained in Department of Navy
v. Egan, the President as Commander in Chief and head of the
Executive Branch has constitutional authority “to classify and
control access to information bearing on national security and
to determine whether an individual is sufficiently trustworthy
to occupy a position in the Executive Branch that will give
that person access to such information.” 484 U.S. 518, 527
(1988). By Executive Order, the President has delegated that
authority to heads of executive agencies, including the FBI
Director. See Exec. Order No. 12,968 § 1.2(b), 60 Fed. Reg.
40,245, 40,246 (Aug. 2, 1995). Based on eligibility standards
prescribed in that order, agencies grant security clearances
only where “facts and circumstances indicate access to
classified information is clearly consistent with the national
security interests of the United States, and any doubt shall be
resolved in favor of national security.” Id. § 3.1(b), 60 Fed.
Reg. at 40,250.

Given the Executive’s primacy in national security and
the discretionary nature of security clearance decisions, courts
have, absent congressional instruction to the contrary,
carefully avoided intruding into Executive judgments
concerning who should receive clearance. In Egan, the
Supreme Court held that the Merit Systems Protection Board
lacked statutory authority to review an agency’s decision to
deny a newly-hired employee a security clearance even
though the employee then lost his job. 484 U.S. at 520.
Acknowledging the general presumption favoring review of
agency decisions, the Court nonetheless stated that this
proposition “runs aground when it encounters concerns of
 8
national security, as in this case, where the grant of security
clearance to a particular employee, a sensitive and inherently
discretionary judgment call, is committed by law to the
appropriate agency of the Executive Branch.” 484 U.S. at
527. Emphasizing that “no one has a ‘right’ to a security
clearance” and that denial of clearance is meant only to assess
whether an individual might someday compromise sensitive
information rather than to “pass[] judgment upon an
individual’s character,” the Court explained that the decision
to grant or deny security clearance was essentially an act of
“[p]redictive judgment” that “must be made by those with the
necessary expertise in protecting classified information.” Id.
at 528–29. By contrast, “it is not reasonably possible for an
outside nonexpert body to review the substance” of the
agency’s predictive judgment to determine “whether the
agency should have been able to make the necessary
affirmative prediction with confidence” or “what constitutes
an acceptable margin of error in assessing the potential risk.”
Id. at 529.

Following Egan, courts of appeals have consistently held
that federal courts, like the administrative board at issue in
that case, have no authority to review the merits of agency
decisions to withhold, revoke, or suspend security clearances
absent contrary direction from Congress. See El-Ganayni v.
U.S. Dep’t of Energy, 591 F.3d 176, 182 (3d Cir. 2010)
(citing cases and recognizing the consensus of the circuits
regarding the scope of Egan). In Ryan v. Reno, we joined
several circuits in holding that Egan applies to Title VII
claims and bars judicial resolution of “a discrimination claim
based on an adverse employment action resulting from an
agency security clearance decision.” 168 F.3d 520, 523 (D.C.
Cir. 1999). We explained that adjudicating plaintiff’s Title
VII claim would require the court to evaluate the merits of the
agency’s security clearance decision. Ryan’s application of
 9
Egan follows inexorably from the manner in which the
factfinder resolves Title VII discrimination and retaliation
claims. Absent evidence of mixed motives, such claims
proceed according to the familiar three-step framework
established in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), under which (1) the plaintiff must first prove a
prima facie case of discrimination, (2) if the plaintiff does so,
then the burden shifts to the defendant “to articulate some
legitimate, nondiscriminatory reason for the action in
question,” and (3) if the defendant meets that burden, the
plaintiff must show that the defendant’s proffered reasons
“were not its true reasons, but were a pretext for
discrimination.” Wiley v. Glassman, 511 F.3d 151, 155 (D.C.
Cir. 2007) (internal quotation marks omitted); see also Jones
v. Bernanke, 557 F.3d 670, 677 (D.C. Cir. 2009) (applying the
same framework to retaliation claims). As we recognized in
Ryan, the problem for plaintiffs who allege the discriminatory
or retaliatory denial or revocation of a security clearance
under the McDonnell Douglas framework is that “a court
cannot clear the second step of McDonnell Douglas without
running smack up against Egan.” 168 F.3d at 524. Why?
Because to determine whether the employer’s proffered
nondiscriminatory reason for the adverse employment
action—i.e., that the plaintiff’s clearance was denied or
revoked on national security grounds—was in fact pretext for
discrimination would require the factfinder to evaluate the
validity of the government’s security concerns. Quoting the
Ninth Circuit, we explained:

The more valid a reason appears upon evaluation, the
less likely a court will be to find that reason
pretextual; the converse is also true. Even when the
court faces independent evidence of a discriminatory
motive, it is still necessary to weigh the validity of
the defendant’s proffered reasons when deciding if
 10
they are pretextual. In short, the merit of such
decisions simply cannot be wholly divorced from a
determination of whether they are legitimate or
pretextual.

Id. (quoting Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 197
(9th Cir. 1995)).

We reiterated Ryan’s holding in Bennett v. Chertoff, in
which the plaintiff alleged that the Transportation Security
Administration’s termination of her employment after she
failed to receive the requisite security clearance was
discriminatory. 425 F.3d 999 (D.C. Cir. 2005). Finding the
claim nonjusticiable and responding to plaintiff’s contention
that the Administration’s security clearance explanation for
her firing was pretextual, we recognized that “under Ryan, a
court cannot adjudicate the credibility of that claim” because
asking the trier of fact to assess the authenticity of the
agency’s reason would also require it “to evaluate the validity
of the agency’s security determination.” Id. at 1003 (internal
citation omitted).

In contrast to the claims raised in Ryan, Bennett, and
Egan itself, Rattigan’s claim implicates neither the denial nor
revocation of his security clearance nor the loss of
employment resulting from such action. After all, the FBI left
Rattigan’s clearance in place and he remains employed by
that agency. Instead, Rattigan argues that his OIO supervisors
referred him for a security investigation in order to retaliate
against him because he filed Title VII claims and that this
referral set in motion a several month long investigation by
the FBI’s Security Division that caused him serious emotional
distress and damaged his reputation. For that reason, the
precise issue presented by this case is one of first impression.
 11
According to Rattigan, we have no need to reach this
justiciability issue because the government forfeited that
defense by failing to raise it in a timely fashion before the
district court. Even though this litigation had stretched on for
five years, the government did not move to dismiss under
Egan until the day before trial. In its opinion denying that
motion, the district court reprimanded the government for its
delay but nonetheless considered the merits because it
believed that the motion implicated subject matter
jurisdiction. See Rattigan II, 636 F. Supp. 2d at 90 & n.1.
Arguing that intervening precedent makes clear that the
government’s justiciability defense is non-jurisdictional, see
Oryszak v. Sullivan, 576 F.3d 522, 526 (D.C. Cir. 2009),
Rattigan contends that “[t]he government’s apparent
submission to judicial review for so many years, and the
disrespect it showed the judicial process by failing to raise
this argument earlier, warrants a finding of waiver[,]”
Appellee’s Br. 25. Although we appreciate the district court’s
annoyance with the government’s failure to raise its
justiciability argument earlier, we see no basis for forfeiture
even assuming the argument could be forfeited—a question
we have no reason to address. See Oryszak, 576 F.3d at 526–
27 (Ginsburg, J., concurring) (contending that “a court must
decline to adjudicate a nonjusticiable claim even if the
defendant does not move to dismiss it under Fed. R. Civ. P.
12(b)(6)”). Not only did the government file its motion in
accordance with Federal Rule of Civil Procedure 12(h)(2),
which provides that the defense of failure to state a claim may
be raised “at trial,” but the district court thoroughly addressed
the substance of the government’s argument in a published
opinion, see Rattigan II, 636 F. Supp. 2d 89. Accordingly, the
government’s justiciability argument is properly before us.

To resolve that issue, we must determine whether
Rattigan’s retaliation claim invited the jury to question the
 12
sort of FBI security judgments that Egan, as applied to Title
VII by Ryan and Bennett, makes unreviewable. We answer
this question by breaking it down into two components. First,
we ask exactly which security-clearance-related decisions
Egan insulates from judicial review. Are all such decisions by
any agency employee unreviewable, as the government and
the dissent insist? Or, as Rattigan contends, does Egan
command absolute deference only to security-clearance-
related judgments of agency personnel specifically trained
and authorized to make them? Neither the Supreme Court in
Egan nor this court in Bennett or Ryan had to resolve this
question given that plaintiffs in those cases challenged agency
actions terminating or withholding employment after security
clearances were actually denied or revoked. Second, after
identifying the decisionmakers whose judgments the
factfinder may not question, we assess whether the
adjudication of Rattigan’s claim subjected those judgments to
jury scrutiny.

As to the first issue, the district court distinguished
between employees working in OIO and those working in the
Security Division because “the Security Division and not the
OIO, is the FBI entity charged with assuring the loyalty,
reliability, suitability, and trustworthiness of . . . employees . .
. who work with, will work with, or have access to sensitive
or classified FBI information and material.” Id. at 93 (internal
quotations and alterations omitted). Nothing about Rattigan’s
claim, the district court explained, required the jury to review
any judgments made by the Security Division. To the
contrary, the Division determined that Rattigan’s activities
were “not inconsistent with the needs of national security,” a
judgment Rattigan “embraces.” Id. As the district court saw it,
Rattigan challenged only OIO’s referral to the Security
Division—“not the sort of judgment call that ‘is committed by
 13
law to the appropriate agency of the Executive Branch.’ ” Id.
at 94 (quoting Egan, 484 U.S. at 527).

For its part, the government maintains that non-Security
Division employees, including OIO officials, are a crucial
“part of the apparatus by which security clearance
determinations are made,” and that they exercise expert
“predictive judgment” when making referral decisions.
Appellant’s Br. 38–39; see also Dissenting Op. at 4. The
government also points out that the OIO employees involved
in this case, as Executive Branch officers with security
clearances, are themselves “encouraged and expected” under
the President’s Executive Order to “report any information
that raises doubts as to whether another employee’s continued
eligibility for access to classified information is clearly
consistent with the national security.” Exec. Order No.
12,968, § 6.2(b), 60 Fed. Reg. at 40,253. If that decision to
report is subjected to judicial scrutiny during Title VII
litigation, the government asserts, then employees will “be
seriously chilled in their fulfillment of this obligation.”
Appellant’s Br. 36; see also Dissenting Op. at 4–5.

We agree with the district court that Egan shields from
review only those security decisions made by the FBI’s
Security Division, not the actions of thousands of other FBI
employees who, like Rattigan’s OIO supervisors, may from
time to time refer matters to the Division. The Supreme
Court’s answer to the question presented in Egan rested
principally on the proposition that certain discretionary
security decisions are, absent congressional direction,
committed to the Executive’s expert judgment. See Egan, 484
U.S. at 529–30. The Court emphasized that decisions about
whether to grant or deny security clearance require
“[p]redictive judgment . . . by those with the necessary
expertise in protecting classified information.” Id. at 529
 14
(emphasis added). Under the Executive Order, such expert
predictive judgments are made by “appropriately trained
adjudicative personnel.” § 3.1(b), 60 Fed. Reg. at 40,250. As
the district court pointed out, at the FBI those “appropriately
trained” personnel work in the Security Division. By contrast,
OIO officials have neither the authority nor the training to
make security clearance decisions. See Rattigan II, 636 F.
Supp. 2d at 93.

To be sure, as the dissent points out, the Supreme Court
in Egan did “consistently refer[] to ‘the agency’—not to
certain employees within an agency—as the decisionmaker
that may not be second-guessed in security clearances cases.”
Dissenting Op. at 1–2. But we find nothing exceptional in the
Court’s choice of words given the “narrow question” before
it: whether the Merit Systems Protection Board had authority
to review the merits of an agency’s final decision to deny or
revoke an employee’s security clearance. Egan, 484 U.S. at
520. The dissent never suggests that the holding of Egan
dictates the result it advocates in this case of first impression,
in which the designated agency experts reached a final
security clearance determination that was favorable to the
plaintiff but where he alleges that his agency supervisors
referred him for investigation for an impermissible reason. As
the Supreme Court itself has cautioned, “where holdings of
the Court are not at issue” it is “generally undesirable to
dissect the sentences of the United States Reports as though
they were the United States Code.” St. Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 515 (1993). Needless to say, because
the same principle applies to the Federal Reporter, we
similarly decline to attach decisive significance to our own
references to “the agency” in Ryan and Bennett where, as
noted above, the issue we face here was not raised.
 15
In concluding that Egan applies only to the Security
Division, we fully understand that non-Security Division
employees play a role in identifying security risks. But the
government’s justiciability argument, embraced by the
dissent, asks us to go well beyond Egan’s reasoning, as well
as its narrow holding. The decision by a non-expert employee
to refer a colleague for a potential security investigation is
categorically unlike the predictive judgment made by
“appropriately trained adjudicative personnel” who make
security clearance decisions pursuant to delegated Executive
authority and subject to established adjudicative guidelines
designed to channel their discretion. Exec. Order No. 12,968,
§ 3.1(b), 60 Fed. Reg. at 40,250; 32 C.F.R. § 147.1–147.15
(setting forth guidelines). Given that nothing in Egan requires
us to extend its principles beyond employees possessing the
requisite training and experience, we decline to do so, thus
preserving to the maximum extent possible Title VII’s
important protections against workplace discrimination and
retaliation. Moreover, although the government believes that
without Egan’s protection, employees outside the Security
Division will be reluctant to make referrals, we think that
concern too speculative to extend Egan’s justiciability
doctrine beyond its core concern.

Having identified the relevant agency decisionmaker for
our justiciability inquiry, we turn to the second question,
namely, whether the jury, in adjudicating Rattigan’s Title VII
retaliation claim, was put in the position of reviewing the
substance of discretionary Security Division decisions.
According to Rattigan, this question has an easy answer:
because his security clearance “was not revoked but upheld,
. . . [t]he jury’s determination that the OIO employees’ actions
were retaliatory is . . . consistent with the Security Division’s
ultimate decision that Rattigan was not a security risk.”
Appellee’s Br. 29–30. The problem with this argument is that
 16
it focuses only on the Security Division’s bottom-line
judgment while overlooking its antecedent decision to initiate
an investigation. Prior to concluding that Rattigan posed no
risk to national security, the Division had to determine
whether Leighton’s observations, as presented to the Division
in the electronic communication, were sufficiently serious to
justify further inquiry. It concluded they were, and such a
threshold decision by the Security Division to investigate is
surely the kind of judgment Egan commits to Division
discretion. Cf. Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir.
1996).

Rattigan nowhere disputes that the Security Division’s
decision to investigate is off limits for judicial review. He
insists, however, that the Division’s decision to launch an
investigation was not at issue because he never asked the jury
to question the reasonableness of that investigation. Up to a
point, Rattigan is correct: nothing about his claim required
him to attribute retaliatory animus to Security Division
employees, and our review of the record satisfies us that his
presentation to the jury focused on the behavior of OIO
employees only. See, e.g., Trial Tr. at 21 (July 21, 2009)
(opening statement of counsel for Rattigan). Indeed, the
district court, consistent with the government’s request,
instructed the jury that for Rattigan to sustain his retaliation
claim, he did not have “to prove that the Security Division
personnel who authorized the investigation were motivated by
. . . retaliatio[n] . . . if [he] prove[d] . . . that these personnel
were influenced by the referral provided by OIO personnel,
and that the stated reason the OIO provided for the referral
was” pretext for retaliation. Looking at the entire record,
however, we still see an Egan problem.

Although the district court properly distinguished
between OIO employees and specially trained Security
 17
Division employees, it believed—and we shall say more
about this later—that the OIO referral alone was not
actionable under Title VII. As a result, it allowed the jury to
review the decisions of the Security Division itself. Indeed,
during the course of the trial, the district court expressly
recognized that Security Division Section Chief Edward
Shubert had become the relevant “decision-maker.” Trial Tr.
at 40 (July 27, 2009). For example, in admitting evidence that
Rattigan had passed a random polygraph examination, the
court explained that although there was scant reason to
believe Pyszczymuka should have known about the polygraph
prior to making the referral because the matter was “just not
part of his job or part of his Department,” there was reason to
think Shubert may have known about it, making the evidence
relevant to establish what Shubert “knows and doesn’t know
and what went into his consideration, or didn’t go into his
consideration.” Id. Moreover, consistent with its identification
of Shubert as the “decision-maker,” the district court made
liability turn on the Security Division’s decision to
investigate, instructing the jury that Rattigan had to prove that
the “defendant initiated the Security Division investigation
because [Rattigan] made allegations of . . . discrimination.”
(emphasis added). Likewise, the verdict form asked the jury
whether Rattigan “prove[d] . . . that the reason that defendant
initiated the FBI’s Security Division investigation was to
retaliate against [Rattigan] for having engaged in protected
activity . . . .” (emphasis added).

Taken together, the district court’s evidentiary rulings,
jury instruction, and verdict form invited the jury to look into
Shubert’s decisionmaking process and assess his reasons for
authorizing the investigation. According to Rattigan,
however, the jury had nothing to second-guess because
Shubert engaged in no independent decisionmaking. Instead,
“[g]iven the supervisory rank and standing of the biased
 18
individuals who made the referral,” Rattigan claims, Shubert
felt he had no choice but to approve an investigation.
Appellee’s Br. 47. But Shubert testified to the contrary,
explaining that OIO supervisors have no authority to initiate
security investigations and that not all referrals lead to such
investigations. See Trial Tr. at 26, 35 (July 27, 2009)
(testimony of Edward Shubert). And far from indicating, as
Rattigan contends, that Shubert simply deferred to
Pyszczymuka after Pyszczymuka forwarded Leighton’s
electronic communication, Shubert testified that although he
conducted no independent factfinding, he reviewed
Leighton’s observations and decided, based on FBI security
clearance guidelines, to authorize an investigation. More
specifically, Shubert testified that Leighton’s communication
raised concerns about “foreign influence” and that his claim
that Rattigan and other FBI agents may have cavorted with
prostitutes raised red flags about “personal conduct.” Id. at
31–32. Although Shubert based his concern about foreign
influence on the electronic communication “as a whole,” he
specifically mentioned Leighton’s contention that Saudi
intelligence officials gave Rattigan gifts and sought to find
him a “suitable wife,” as well as Leighton’s assertion that
Rattigan restricted the access of other FBI agents to Saudi
officials and made those officials his only point of contact
during his pilgrimage to Mecca. Id. at 31–34.

In short, because Egan bars Rattigan from predicating
liability on the actions of the Security Division, and because
the jury, notwithstanding the “influence by non-
decisionmakers” instruction, was allowed—indeed invited—
to scrutinize the Division’s decisionmaking, we shall vacate
the judgment entered in favor of Rattigan.
 19
III.
Based on the foregoing, the government would have us
not only set aside the verdict but also order the case
dismissed. But given our conclusion that challenges to OIO
referral decisions fall outside Egan, and given that, as we
shall explain, the OIO referral itself can qualify as a
materially adverse action under Title VII, Rattigan’s case can
proceed so long as the jury is not put in the position of
second-guessing the Security Division. Dismissing the
complaint is thus unwarranted because it would deprive
Rattigan of his cause of action due to evidentiary rulings and
jury instructions we have now concluded were flawed. See,
e.g., United States v. Science Applications Int’l Corp., 626
F.3d 1257, 1261 (D.C. Cir. 2010) (vacating the judgment and
remanding for a new trial because flawed jury instruction
misstated the standard for scienter under the False Claims
Act).

We begin with the question of whether the OIO referral
can qualify as a materially adverse action under Title VII. As
the Supreme Court recently explained, Title VII’s retaliation
provision “cover[s] a broad range of employer conduct” that
extends beyond the statute’s substantive antidiscrimination
provision. Thompson v. N. Am. Stainless, LP, __U.S.__, 131
S. Ct. 863, 868 (2011); see also Rochon v. Gonzales, 438 F.3d
1211, 1219 (D.C. Cir. 2006) (holding that the federal
government faces the same standards of liability for
retaliation under Title VII as a private employer). In the
retaliation context, a materially adverse action is one that
“could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (internal
quotation marks omitted). Whether a particular adverse action
satisfies the materiality threshold is generally a jury question,
with our role limited to determining whether, viewing the
 20
evidence in the light most favorable to the plaintiff, a
reasonable jury could find the action materially adverse. See
Pardo-Kronemann v. Donovan, 601 F.3d 599, 607 (D.C. Cir.
2010) (explaining, in the context of claim that reassignment of
duties was materially adverse, that “whether a particular
reassignment of duties constitutes an adverse action is
generally a jury question” (internal quotation marks and
alterations omitted)).

Viewing the evidence in this case in the light most
favorable to Rattigan, we have no doubt that a reasonable jury
could find that OIO’s security referral itself might “well
dissuade a reasonable worker from making or supporting a
charge of discrimination.” White, 548 U.S. at 57. The referral
alone created the very real possibility not only that Rattigan
would face a stressful and potentially reputation-damaging
investigation, but also that the FBI would revoke his security
clearance and terminate his employment. See, e.g., Trial Tr. at
82 (July 27, 2009) (testimony of Michael Pyszczymuka)
(acknowledging that being the subject of a security
investigation could harm an FBI agent’s career); Trial Tr. at
53–54 (July 22, 2009) (testimony of Cheryl Tucker)
(recognizing the career-damaging effect a security
investigation could have for an agent like Rattigan who was
involved in the FBI’s sensitive and important inquiry into the
September 11 attacks). In our view, a reasonable jury could
conclude that these ominous prospects are more than
sufficient to deter a reasonable employee from filing a
discrimination complaint. See Porter v. Shah, 606 F.3d 809,
818 (D.C. Cir. 2010) (holding that a supervisor’s issuance of a
negative written interim assessment and performance
improvement plan constituted materially adverse action
because, under applicable agency regulations, the negative
rating assessment and accompanying plan “could expose [the
plaintiff] to removal, reduction in grade, withholding of
 21
within grade increase or reassignment” (emphasis added)
(internal quotation marks omitted)); Velikonja v. Gonzales,
466 F.3d 122, 124 (D.C. Cir. 2006) (concluding that a lengthy
disciplinary investigation by the FBI’s Office of
Responsibility that “placed a cloud over [plaintiff’s] career”
was materially adverse “[b]ecause a reasonable jury could
find that the prospect of such an investigation could dissuade
a reasonable employee from making or supporting a charge of
discrimination” (emphasis added)); accord Rattigan I, 604 F.
Supp. 2d at 52 (“[W]hether an action is ‘materially adverse’ is
determined by whether it holds a deterrent prospect of harm,
and not by whether the harm comes to pass or whether any
effects are felt in the present.”).

Moreover, this conclusion depends not at all on the
actions that the Security Division takes: the possible negative
repercussions of an OIO referral could deter an employee
from filing a complaint even though OIO has no control over
whether the Security Division undertakes an investigation or
ultimately decides to revoke a security clearance. The
situation is to some extent analogous to the filing of a
criminal complaint for retaliatory purposes, which may
qualify as a materially adverse action under Title VII. See
White, 548 U.S. at 64 (favorably citing a Tenth Circuit
decision “finding actionable retaliation where employer filed
false criminal charges against former employee who
complained about discrimination” (citing Berry v. Stevinson
Chevrolet, 74 F.3d 980, 984 (10th Cir. 1996))); see also Steele
v. Schafer, 535 F.3d 689, 696 (D.C. Cir. 2008) (noting that
“the Supreme Court [has] indicated that a false report to
government authorities can constitute retaliation,” and
accordingly finding actionable the filing of a false report to
the D.C. Office of Unemployment Compensation contesting
the employee’s unemployment benefits). This is so even
though it is the prosecutor, not the employer, who decides
 22
whether to pursue criminal charges after the complaint is
filed. Like the filing of a criminal complaint, an OIO security
referral could “deter victims of discrimination from
complaining to the EEO[],” thus interfering with employees’
“unfettered access to Title VII’s remedial mechanisms.”
White, 548 U.S. at 68 (internal quotation marks omitted).

Given that OIO’s referral may qualify as a materially
adverse action and that such an action falls outside Egan, we
shall remand to give Rattigan an opportunity to prove his
case. Of course, the district court will have to ensure that the
jury does not second-guess the Security Division’s decision to
initiate the investigation. For even if the charge of retaliation
focuses only on OIO’s referral, the risk remains that unless
the district court takes precautions, the jury could nonetheless
second-guess the Security Division’s decision to initiate the
investigation. To determine whether OIO’s referral rested on
legitimate security concerns as opposed to retaliatory animus,
the jury must weigh the strength of the evidence Leighton
submitted in support of his claim that Rattigan might pose a
security risk. But weighing the evidence of Rattigan’s
behavior as reported in Leighton’s electronic communication
and deciding whether it justified an investigation is also what
the Security Division did, and under Egan the jury must not
revisit the Division’s judgment on this point. Cf. Becerra, 94
F.3d at 149 (“The reasons why a security investigation is
initiated may very well be the same reasons why the final
security clearance decision is made.”). Moreover, the risk of
second-guessing remains despite the Division’s ultimate
conclusion that Rattigan posed no security threat. The
standards for deciding whether Leighton’s observations about
Rattigan merited further inquiry and whether Rattigan’s
security clearance should be revoked were necessarily and
obviously different, and it is perfectly plausible for the
Division to have believed that Leighton’s claims warranted an
 23
investigation yet, following that investigation, to have
concluded that suspicions about Rattigan were unfounded.

A simple admittedly stylized hypothetical illustrates the
potential problem. Suppose OIO’s security referral had raised
a single allegation: that Rattigan occasionally wore Saudi
national clothing while in the U.S. embassy. Suppose also that
Shubert reviewed this allegation, decided it raised questions
about foreign influence, and initiated an investigation. And
suppose finally that the investigation, though verifying that
Rattigan had in fact worn Saudi clothing, concluded that the
concerns about him were unfounded because no other
evidence suggested inappropriate foreign influence. In
response to a Title VII claim by Rattigan contending that
OIO’s referral was retaliatory, OIO officials would
presumably argue that the referral was motivated by a
legitimate non-retaliatory reason—namely, their concern that
Rattigan’s office attire signaled that he might represent a
national security risk. To assess whether that asserted reason
was pretextual under McDonnell Douglas, the jury would be
asked, either expressly or impliedly, to evaluate its validity.
See Ryan, 168 F.3d at 524 (“ ‘Even when the court faces
independent evidence of a discriminatory motive, it is still
necessary to weigh the validity of the defendant’s proffered
reasons when deciding if they are pretextual.’ ” (quoting
Brazil, 66 F.3d at 197)). But that concern—that Rattigan’s
wearing of Saudi clothing was suspicious—was the very
reason (in the hypothetical) the Security Division launched its
investigation. Therefore, putting the jury in a position of
weighing whether the wearing of Saudi clothing raised a
legitimate national security concern could, contrary to Egan,
invite it to question the Security Division’s judgment that
Rattigan’s behavior merited further inquiry.
 24
To be sure, when the jury evaluates the motives behind a
security referral, it sits in a very different position than do
Security Division officials reviewing allegations and deciding
whether to investigate. Whereas such officials will frequently
have to make investigation decisions based on uncorroborated
and acontextual allegations received from non-Security
Division employees, the plaintiff may be able to introduce
evidence to convince the jury that those employees included
in their referral accusations that they knew or should have
known were false or misleading. Such evidence, if credited,
will provide compelling reasons for the factfinder to conclude
that the employees’ asserted security reasons for the referral
were pretextual without ever calling into doubt any Security
Division judgment. See Brady v. Office of Sergeant at Arms,
520 F.3d 490, 495 (D.C. Cir. 2008) (explaining that one way
an employee may show that an employer’s stated reason for
an action was pretextual is to “attempt to demonstrate that the
employer is making up or lying about the underlying facts that
formed the predicate for the [action]”).

Thus, although Title VII challenges to security referrals
could in some circumstances invite the jury to question
Security Division judgments about the seriousness of security
concerns, that is far from inevitable. Ultimately, it falls to the
district court to guard against this risk of violating Egan. To
do so, the district court could, for example, instruct the jury to
assume that the reasons the Division gave for commencing an
investigation—provided those reasons did not rest on false or
misleading allegations—fully justified undertaking the
investigation. We recognize that limitations required to
ensure compliance with Egan may make it impossible for
some plaintiffs to mount evidence sufficient to allow a
reasonable jury to believe retaliation had occurred. In such
cases, the district court will need to enter judgment for the
government. Cf. In re Sealed Case, 494 F.3d 139, 144–45
 25
(D.C. Cir. 2007) (recognizing in state secrets context that
where plaintiff is unable to establish prima facie case without
the use of privileged information, lack of evidence requires
dismissal).

Here, whether Rattigan has adduced sufficient evidence
for his claim to proceed without running into Egan is a
question we leave in the district court’s able hands. Having
presided over the trial and several years of motions practice,
the district court is in the best position to decide whether,
given the record and any cautionary instructions and
evidentiary rulings it believes necessary, Rattigan’s case can
go forward without putting the jury in the position of second-
guessing the Security Division. See Jones, 557 F.3d at 681
(“Given the state of the record and the factual intricacies
intertwined with [plaintiff’s] allegations, we are unwilling to
delve into questions that the district court did not address.”
(internal quotation marks and alterations omitted)).

IV.
For the foregoing reasons, we vacate the judgment and
remand for further proceedings consistent with this opinion.

So ordered.
 KAVANAUGH, Circuit Judge, dissenting: In Department
of Navy v. Egan, 484 U.S. 518 (1988), the Supreme Court
held that the Navy’s decision to deny Egan a security
clearance could not be reviewed in the course of his personnel
action against the Navy. Justice Blackmun’s opinion for the
Court reasoned that “the protection of classified information
must be committed to the broad discretion of the agency
responsible, and this must include broad discretion to
determine who may have access to it.” Id. at 529. The Egan
Court thus precluded agency employees such as Egan from
pursuing personnel actions against their agency employers
when doing so would entail second-guessing the agency’s
security clearance decision. The Court recognized that
Congress could override the presumption of unreviewability
that attached to security clearance decisions, but it said that
Congress had not done so with respect to personnel suits like
Egan’s. See id. at 530.

The majority opinion here, however, reads Egan more
narrowly. Under the majority opinion, security clearance
decisions are committed not “to the broad discretion of the
agency responsible,” id. at 529, but only to some agency
employees who possess the “requisite training and expertise.”
Maj. Op. at 15. Under the majority opinion’s 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. The majority opinion’s slicing and
dicing of the security clearance process into reviewable and
unreviewable portions is nowhere to be found in Egan, and
does not reflect the essential role that the reporting of security
risks plays in the maintenance of national security.

* * *

To begin with, contrary to the majority opinion’s
approach, the Supreme Court in Egan consistently referred to
 2

“the agency” – not to certain employees within an agency – as
the decisionmaker that may not be second-guessed in security
clearance cases. Consider the following from Egan:

 “[T]he grant of security clearance to a particular
employee . . . is committed by law to the appropriate
agency of the Executive Branch.” Egan, 484 U.S. at
527.
 “[C]ertain civilian agencies . . . were entrusted with
. . . protecting . . . information bearing on national
security.” Id. at 527-28.
 “Presidents . . . have sought to protect sensitive
information . . . by delegating this responsibility to the
heads of agencies.” Id. at 528.
 “Certainly, it is not reasonably possible for an outside
nonexpert body to review the substance of such a
judgment and to decide whether the agency should
have been able to make the necessary affirmative
prediction with confidence.” Id. at 529.
 “[A]n agency head . . . should have the final say in
deciding whether to repose his trust in an employee
who has access to [classified] information.” Id.
 “[T]he Senate and House Committees . . . gave no
indication that an agency’s security-clearance
determination was now to be subject to review.” Id. at
531 n.6.
 “Placing the burden on the Government” would
involve “second-guessing the agency’s national
security determinations.” Id. at 531.

In the face of the recurring “agency” theme in Egan, the
majority opinion here concludes that Egan protects only the
actions of certain agency employees. The majority opinion
relies on a single sentence in Egan that mentions “those with
 3

the necessary expertise in protecting classified information.”
Egan, 484 U.S. at 529. But in that sentence, the Egan Court
was simply contrasting the expertise of agencies with that of
outside reviewing bodies, not implying that courts should
draw a reviewability line based on which members of an
agency possessed certain amounts of expertise. The full quote
from Egan makes that clear:

Predictive judgment of this kind must be made by those
with the necessary expertise in protecting classified
information. For reasons too obvious to call for enlarged
discussion, the protection of classified information must
be committed to the broad discretion of the agency
responsible, and this must include broad discretion to
determine who may have access to it. Certainly, it is not
reasonably possible for an outside nonexpert body to
review the substance of such a judgment and to decide
whether the agency should have been able to make the
necessary affirmative prediction with confidence.

Id. (citations, alterations, and internal quotation marks
omitted) (emphasis added).

Nothing in Egan’s language suggests that the Supreme
Court was only barring review of the security clearance
actions of “employees possessing the requisite training and
experience,” as the majority opinion here contends. Maj. Op.
at 15. Nor have this Court’s decisions applying Egan drawn
the line newly drawn in the majority opinion. Following the
Supreme Court’s lead, we have referred to the
decisionmaking process of the agency as a whole, not to
certain parts of an agency, in employment discrimination
cases involving security clearance decisions. See, e.g.,
Bennett v. Chertoff, 425 F.3d 999, 1003 (D.C. Cir. 2005)
 4

(“trier of fact” may not “evaluate the validity of the agency’s
security determination”); Ryan v. Reno, 168 F.3d 520, 523
(D.C. Cir. 1999) (“Egan applies in a Title VII action to
preclude . . . a discrimination claim . . . resulting from an
agency security clearance decision”).

Moreover, the Supreme Court in Egan protected the
security clearance process as a whole. The Court did not
suggest that courts could review distinct parts of that process.
The majority opinion here, however, says that only the
initiation of security clearance investigations and the grant,
denial, or revocation of clearances are within the Egan rule.
In the majority opinion’s view, the reporting of security risks
is not within the Egan rule. I do not find that distinction in
Egan. Nor do I think it makes much sense. Investigations
and revocations of security clearances will often be prompted
by reports of misconduct. Reports of misconduct are an
essential part of the overall process of maintaining national
security and preventing those who may be security risks from
accessing sensitive government information. Egan protects
the front end of the security clearance process – including
reports of possible security risks – as much as it protects the
back end.

One powerful indication that the reporting of security
risks is important to national security and falls within the
Egan rule is that the President himself has required such
reporting. In an executive order issued by President Clinton
and still in effect, all federal employees with security
clearances must make a predictive judgment about what
constitutes suspicious behavior and report any such behavior
for investigation: “Employees are encouraged and expected
to report any information that raises doubts as to whether
another employee’s continued eligibility for access to
 5

classified information is clearly consistent with the national
security.” Exec. Order No. 12,968, § 6.2(b), 60 Fed. Reg.
40,245, 40,253 (Aug. 2, 1995). Egan recognized that the
“authority to protect such [national security] information falls
on the President as head of the Executive Branch and as
Commander in Chief.” Egan, 484 U.S. at 527. The Egan rule
thus covers reports made under President Clinton’s executive
order. See id. at 527-30. The majority opinion, however,
would allow courts to second-guess the decisions of agency
employees who report security risks under President Clinton’s
executive order. I cannot square that with Egan.

I appreciate and share the majority opinion’s concern
about deterring false or wrongful reports that in fact stem
from a discriminatory motive. But there are a host of
sanctions that deter an agency employee from engaging in
such behavior. See, e.g., 71 Fed. Reg. 64,562, 64,563 (Nov.
2, 2006) (Department of Justice “retains the right, where
appropriate, to discipline an employee for conduct that is
inconsistent with Federal Antidiscrimination and
Whistleblower Protection Laws up to and including
removal”). And in any event, it is not for us to adjust the rule
set forth in Egan; that’s a decision for the Supreme Court or
Congress.

The majority opinion’s approach not only causes tension
with the Supreme Court’s decision in Egan and this Court’s
precedents, but also will create significant practical
difficulties. I expect that district courts will find it quite
difficult to navigate the instructions set forth in Part III of the
majority opinion. Egan set forth a simple default rule for
courts to follow in the absence of congressional direction
otherwise. The complicated process ushered in by the
 6

majority opinion does not comport with the clarity of Egan, in
my respectful judgment.

***

The rule that the Supreme Court announced in Egan
applies “unless Congress specifically has provided
otherwise.” 484 U.S. at 530. If Congress wishes to re-strike
the balance between personnel and employment
discrimination laws on the one hand and national security on
the other, it is free to do so – either broadening or narrowing
the scope of the protection for agencies’ security clearance
decisions. Until Congress does so, however, I would apply
Egan according to its terms. Here, Rattigan claims that FBI
officials improperly decided to report him to security
clearance investigators. Under Egan, we cannot second-guess
the FBI’s decision. For that reason, Rattigan’s suit faces an
insurmountable bar, and we must dismiss it.

I respectfully dissent.