In a move that might have massive implication for current and potential cleared workers, the Justice Department is asking the U.S. Court of Appeals for the D.C. Circuit to rule on whether and to what extent can federal judges rule over the security clearance process disputes.
According to a post by Legal Times, a D.C. based legal newspaper, the move came as a result of a case brought against the Department of Justice by FBI agent Wilfred Rattigan in which he claims a supervisor filed a false security risk report against him. Rattigan was stationed in Saudi Arabia when, in 2002, a supervisor forwarded a report about Rattigan to the FBI’s security division. A subsequent investigation found no reason to revoke Rattigan’s security clearance.
The fundamental question of the case is whether federal trial judges can review allegations of misconduct during the security clearance process. The latest decision in the trial ruled that judges can review allegations of a security risk, but not the decision to grant or not grant a security clearance. Writing in the majority, one judge argued “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.”
The ruling, while more limited that a previous judgment, keeps Rattigan’s case alive as long as he can demonstrate that the security risk was fraudulent. The Legal Times blog claims “The ‘knowingly false’ standard that the appeals court crafted […] will require a “detailed inquiry” about the veracity of the reported security risk information.”
The Department of Justice is arguing that the ruling allows plaintiffs to circumvent a previous ruling protecting both the security clearance process and the decision by agencies to grant a security clearance by simply alleging a report is fraudulent. This loophole could open the door to a slew of lawsuits against decisions in the security clearance process.
Mike Jones is a researcher, writer, and analyst on national and international security. He lives in the DC area.