Title VII Challenges to Security Clearance Referrals: Rattigan Points the Way

Abstract

In a nearly unbroken line of cases since the Supreme Court’s ruling in Department of the Navy v. Egan, courts have dismissed as nonjusticiable lawsuits challenging any aspect of the security clearance process, including claims brought under Title VII of the Civil Rights Act. However, in a 2012 D.C. Circuit case, Rattigan v. Holder, plaintiff Wilfred Rattigan won a narrow decision that altered the legal landscape surrounding security clearance referrals. Judge David Tatel’s opinion for the majority on re-hearing preserved a Title VII challenge to a discriminatory security clearance referral, albeit on a knowingly false standard. This Note provides a careful reading of that opinion, situating it in the wider legal context of Title VII and the Egan doctrine. It argues that Rattigan gives the strongest indication to date of a limit on the broad reading of Egan that has developed over the last twenty-five years, a prediction that has been borne out by the first few cases to apply Rattigan. It further argues that the chilling argument pressed by government lawyers in Rattigan may actually support allowing plaintiffs like Rattigan to litigate their claims, instead of dismissing them as nonjusticiable. The D.C. Circuit’s approach points the way towards an appropriate judicial role in supervising security clearance referrals.