 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued December 7, 2011                 Decided July 10, 2012

                         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)


                  On Petition for Rehearing
                           ______

     Charles W. Scarborough, Attorney, U.S. Department of
Justice, argued the cause for appellant. With him on the briefs
were Tony West, Assistant U.S. Attorney, Ronald C. Machen
Jr., U.S. Attorney, and Marleigh D. Dover, Attorney. 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.
                               2
    Before: ROGERS, TATEL, and KAVANAUGH, Circuit
Judges.

    Opinion for the Court filed by Circuit Judge TATEL.

    Dissenting opinion filed by Circuit Judge KAVANAUGH.

     TATEL, Circuit Judge: Appellee, an employee of the FBI,
alleges that FBI officials retaliated against him in violation of
Title VII of the Civil Rights Act of 1964 when, by reporting
unfounded security concerns to the Bureau’s Security
Division, they prompted an investigation into his continued
eligibility for a security clearance. In our earlier opinion in
this case, Rattigan v. Holder, 643 F.3d 975 (D.C. Cir. 2011),
we held that although Supreme Court and D.C. Circuit
precedent shields the Security Division’s security clearance-
related decisions from judicial review, the Title VII claim
could nonetheless go forward so long as it challenged only the
reporting of appellee to the Security Division and not the
Division’s decision to investigate. On rehearing, however, the
government has persuaded us that our earlier decision was too
broad. For the reasons set forth below, we narrow the scope of
Title VII liability in these circumstances and remand for
further proceedings consistent with this opinion.

                               I.
     As recounted in our earlier opinion, Plaintiff-Appellee
Wilfred Rattigan is a black male of Jamaican descent who has
converted to Islam. See Rattigan, 643 F.3d at 977. In 1999,
the FBI transferred Rattigan, a long-term FBI employee, to
the Office of the Legal Attaché at the United States Embassy
in Riyadh, Saudi Arabia. Serving first as the Office’s
Assistant Legal Attaché and then as Legal Attaché (Legat),
Rattigan functioned as the FBI’s primary liaison to the Saudi
intelligence service and reported to the FBI’s Office of
                              3
International Operations (OIO) in Washington, D.C. During
his tenure in the Riyadh office, Rattigan made several
complaints of race- and national origin-based discrimination.
Specifically, at an office-wide meeting in October 2001,
Rattigan accused OIO supervisors Cary Gleicher, Michael
Pyszczymuka, and Leslie Kaciban of discrimination and later
pursued claims against them with the Equal Employment
Opportunity (EEO) Office.

     Around the same time, in November 2001, OIO Special
Agent Donovan Leighton, sent by Gleicher on a twenty-one
day assignment to Riyadh, purportedly grew suspicious about
Rattigan’s behavior and management of the office. In
particular, Leighton worried that certain behavior, such as
Rattigan’s appearance at the U.S. Embassy in “full Saudi
Arabian costume,” suggested that Rattigan might be
“inappropriately under the influence of his Saudi
counterparts.” Trial Tr. at 58, 60 (July 23, 2009). Following a
short vacation, Leighton returned to the OIO Washington
Office, where he had further dealings with Rattigan that
allegedly led him to become more concerned. After
consulting his OIO supervisors, Leighton documented his
concerns in an “electronic communication” (EC), i.e., a
memorandum written for internal use, which he sent to OIO
supervisor Pyszczymuka for review. Pyszczymuka then
forwarded the EC to the Security Division, requesting a
review of Leighton’s observations. Following its
investigation, the Division concluded that the potential
security risks alleged by Leighton “lack[ed] corroboration and
[were] unfounded.” Memorandum from Maureen Chelak,
Sec. Div. Analytical Integration Unit 4 (Sept. 18, 2002).
Accordingly, the Division closed its investigation, and
Rattigan retained his security clearance.
                               4
     In 2004, Rattigan filed suit under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., alleging,
among other things, that the decision to refer Leighton’s
purported concerns to the Security Division, thus prompting a
security clearance investigation, amounted to unlawful
retaliation for Rattigan’s pursuit of discrimination claims. The
jury found for Rattigan on the retaliation claim, ultimately
awarding him $300,000 in damages. On appeal, the
government argued primarily that Rattigan’s retaliation claim
was non-justiciable under the Supreme Court’s decision in
Department of the Navy v. Egan, 484 U.S. 518 (1988), which
we have interpreted to bar judicial review of adverse
employment actions based on the denial or revocation of a
security clearance. See Bennett v. Chertoff, 425 F.3d 999,
1001 (D.C. Cir. 2005) (“[E]mployment actions based on
denial of security clearance are not subject to judicial review,
including under Title VII.”); Ryan v. Reno, 168 F.3d 520, 524
(D.C. Cir. 1999) (holding that “under Egan an adverse
employment action based on denial or revocation of a security
clearance is not actionable under Title VII”).

     We held that “Egan shields from review only those
security decisions made by the FBI’s Security Division,”
whose employees are trained and authorized to make security
clearance determinations, and “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.”
Rattigan, 643 F.3d at 983. We thus concluded that Rattigan’s
claim based on the OIO reporting and referral could proceed
“so long as the jury is not put in the position of second-
guessing the Security Division.” Id. at 986. But finding that
the district court’s instructions invited the jury to second
guess the Security Division’s decision to initiate an
investigation, we vacated the judgment and ordered the case
remanded for further proceedings.
                                5
     The government filed a petition for rehearing and
rehearing en banc, arguing that our decision conflicts with
both Egan and reporting obligations established by the
President. As the government points out, Executive Order
12,968, which sets forth security clearance standards and
procedures, states that employees granted access to classified
information “are encouraged and expected 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. 40,245,
40,253 (Aug. 2, 1995) (emphasis added). According to the
government, the prospect of Title VII liability for reporting-
based claims could deter employees from reporting
information they find doubtful or difficult to verify—
information that can be critical to the Security Division’s
ability to conduct an effective investigation. Persuaded that
this argument merited further consideration, we granted the
petition for panel rehearing and requested briefing on the
scope of Egan’s bar on judicial review of security clearance
decisions, the potential for Title VII liability to chill reporting
of security concerns to the Security Division, and the
consequences of narrowing Title VII liability by limiting it to
claims based on referrals of knowingly false information.

                                II.
     In Egan, the Supreme Court made clear that the general
presumption favoring judicial review “runs aground when it
encounters concerns of national security,” as in cases “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. As explained in our prior opinion,
however, we do not believe that Egan insulates from Title VII
all decisions that might bear upon an employee’s eligibility to
                                6
access classified information. Rather, the Court in Egan
emphasized that the decision to grant or deny security
clearance requires a “[p]redictive judgment” that “must be
made by those with the necessary expertise in protecting
classified information.” Id. at 529. Likewise, under Executive
Order 12,968, the decision to grant or deny access to
classified information must be “based on judgments by
appropriately trained adjudicative personnel.” Exec. Order
No. 12,968, § 3.1(b), 60 Fed. Reg. at 40,250. It is this expert,
predictive judgment made by “appropriately trained”
personnel that Egan insulates from judicial review. Rattigan,
643 F.3d at 983. At the FBI, such “appropriately trained”
personnel work in the Security Division. By contrast, OIO
officials “have neither the authority nor the training to make
security clearance decisions.” Id. Accordingly, finding that
“[t]he 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,” we held that
Egan’s bar on judicial review extends only to security
clearance-related decisions made by the Security Division
itself and not to decisions by other FBI employees to report
their concerns to the Division. Id. at 984 (quoting Exec. Order
No. 12,968, § 3.1(b), 60 Fed. Reg. at 40,250).

     On rehearing, the government argues that decisions to
report security concerns come within Egan’s scope because
they “involve precisely the same type of predictions about
risks to national security” as the decision to grant or deny
clearance, Appellant’s Reh’g Br. 6; see also Dissenting Op. at
5, and because the Executive Order’s reporting mandate
reflects a “categorical determination that all employees with
access to classified information have the necessary ‘training
                                7
and experience’ to report security concerns,” Appellant’s
Reh’g Br. 21. But this argument is undercut by the
government’s insistence—in the very same brief—that
Executive Order 12,968 requires employees to report “any
information that raises doubts,” Exec. Order No. 12,968,
§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added), without
making a judgment as to the information’s veracity or
relevance to national security. Indeed, the government
explains that “[a]lthough plaintiff may argue that Leighton or
other OIO officials ‘should have known’ that some of the
facts included in his EC did not raise significant security
issues, it was not their place to make that judgment or to
undertake a mini-investigation to verify those facts.”
Appellant’s Reh’g Br. 32–33 (emphasis added); see also
Reh’g Pet. 14 n.3 (suggesting that employees should report
even “information the employee might believe is not directly
relevant or accurate”). In other words, employees outside the
Security Division are expected to refrain from making
sensitive, predictive judgments and it is “not their place” to
make the kinds of decisions that Egan shields from review.
Given this, and for the reasons set forth in our earlier opinion,
we adhere to our holding that Egan’s absolute bar on judicial
review covers only security clearance-related decisions made
by trained Security Division personnel and does not preclude
all review of decisions by other FBI employees who merely
report security concerns.

                               III.
     In addition to its arguments about the scope of Egan, the
government urges us to reconsider our decision on grounds
that, in the judgment of “the Executive Branch agencies that
handle security clearance issues,” preserving Title VII
liability for security reporting claims will impair the ability of
the Security Division to fulfill its Executive Order 12,968
responsibility by “chill[ing] the timely and adequate reporting
                                8
of security issues.” Reh’g Pet. 13. As we understand it, the
government’s point is this: by imposing a standard for Title
VII liability that conflicts with the reporting standard set forth
in Executive Order 12,968, our earlier opinion creates a risk
that an employee’s compliance with the Order could provide a
basis for Title VII liability—a risk that could chill reporting
and thus undermine the ability of the Security Division to
fulfill its responsibilities to make fully informed security-
clearance decisions.

     The government’s argument rests on section 6.2(b) of the
Executive Order, which, as explained above, states that
employees with security clearances “are encouraged and
expected 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. According to the government, section 6.2(b) adopts a
“broad margin of error in favor of national security,”
Appellant’s Reh’g Br. 19, requiring employees to report “any
information that raises doubts,” Exec. Order No. 12,968,
§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added), even if
that information is mere rumor or has only uncertain
relevance to national security. This broad reporting mandate
reflects the Executive’s judgment that “[t]he reliability of
final security clearance decisions . . . necessarily depends on
the proper officials having full and complete access to all
potentially relevant information, including information the
employee might believe is not directly relevant or accurate.”
Reh’g Pet. 14 n.3; see also Appellant’s Reh’g Br. 30.

    The government is concerned that our earlier decision
conflicts with this broad reporting standard because it would
allow a jury to infer pretext—and find Title VII liability—
from an employee’s decision to report dubious or potentially
                               9
irrelevant information. See Rattigan, 643 F.3d at 987 (“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.”); id. at 988 (plaintiff may show pretext by
“convinc[ing] the jury that [the reporting] employees included
in their referral accusations that they knew or should have
known were false or misleading” (emphasis added)). The
government points out, moreover, that a jury would evaluate
the plaintiff’s pretext evidence under the preponderance of the
evidence standard—a standard the Supreme Court in Egan
deemed “inconsistent” with the “clearly consistent with the
interests of the national security” standard used in security
clearance determinations. 484 U.S. at 531. Because we
suggested that a jury could find pretext under a preponderance
standard based on its own assessment of the weight and
credibility of the information reported, the government warns
that our decision will likely deter employees from reporting
“any information that raises doubts,” Exec. Order No. 12,968,
§ 6.2(b), 60 Fed. Reg. at 40,253 (emphasis added),
particularly when the information is either questionable or
potentially insignificant. This chilling effect on reporting, in
turn, could “seriously compromise the integrity of final
security clearance decisions,” Appellant’s Reh’g Br. at 30,
because the security clearance process as a whole is
“predicated on timely and accurate reporting of even
questionable information.” Id. at 13. The government is also
concerned that an employee, fearing that reporting
information she “should have known [was] false or
misleading” could provide a basis for Title VII liability,
Rattigan, 643 F.3d at 988, might take it upon herself to
investigate and verify the allegations before reporting—an
action that could “tip[] off the subject, influence[] possible
witnesses, or otherwise impede[] the Security Division’s
                              10
ability to conduct an effective investigation.” Appellant’s
Reh’g Br. 29.

     We find the government’s arguments quite powerful,
especially given the deference owed “the executive in cases
implicating national security,” Ctr. for Nat’l Sec. Studies v.
U.S. Dep’t of Justice, 331 F.3d 918, 926–27 (D.C. Cir. 2003).
Specifically, we agree that our earlier decision could indeed
discourage critical reporting by permitting jurors to infer
pretext based on their own judgment that the information
reported was either unlikely to prove true or raised
insufficiently weighty security concerns. Such a standard
plainly conflicts with Executive Order 12,968’s expectation
that employees will report even overheard rumors and small
details that may ultimately prove irrelevant. Moreover, to the
extent that jurors would be called upon to “weigh the strength
of the evidence” submitted in support of reported security
concerns, Rattigan, 643 F.3d at 987, Egan suggests that the
preponderance standard could lead them to “depart[]” from
the “clearly consistent” standard mandated by the President in
evaluating the decision to report seemingly insignificant
information. See Egan, 484 U.S. at 531. And although, as
Rattigan points out, only the government can be held liable
under Title VII, we agree that the “substantial burdens, loss of
privacy, and public humiliation” that accompany litigation,
Appellant’s Reh’g Reply Br. 13, could nonetheless have a
serious chilling effect on individual employees.

     Critically for our purposes, this likely chilling effect
presents serious Egan problems given that Security Division
employees, trained to make security clearance decisions and
thus covered by Egan, need all the evidence they can get to
“control access to information bearing on national security
and to determine whether an individual is sufficiently
trustworthy to . . . [have] access to such information,” Egan,
                              11
484 U.S. at 527. The Executive Order encourages broad
reporting precisely because the entities charged with making
security clearance decisions—here the Security Division—
need full access to even unsubstantiated and doubtful
information in order to make the sensitive, predictive
judgments that Egan protects. Although, as explained above,
we continue to believe that the reporting decisions at issue in
this case fall outside the scope of Egan’s protection, we
conclude that because broad liability for such reporting could
compromise the integrity of decisions that are shielded from
judicial intrusion, i.e., decisions of the Security Division,
allowing such liability would conflict with Egan.

     The question, then, is whether we must bar reporting and
referral claims altogether, as the government urges, or
whether we can sufficiently minimize the chilling effect of
Title VII liability by narrowing the scope of such claims. We
ask this question because it is our duty not only to follow
Egan, but also to “preserv[e] to the maximum extent possible
Title VII’s important protections against workplace
discrimination and retaliation.” Rattigan, 643 F.3d at 984; cf.
J.E.M. Ag Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S.
124, 143–44 (2001) (“when two statutes are capable of
coexistence, it is the duty of the courts, absent a clearly
expressed congressional intention to the contrary, to regard
each as effective” (internal quotation marks omitted)). Given
this, and given that, as explained below, Title VII claims
based on knowingly false reporting present no serious risk of
chill, we believe that claims of knowingly false security
reports or referrals can coexist with Egan and the Executive
Order.

    A knowingly false standard, unlike the standard
suggested by our earlier opinion, would create no conflict
with Executive Order 12,968’s broad reporting mandate.
                              12
However critical it is for employees to report doubtful or
unreliable information, the Security Division cannot possibly
be assisted by employees who knowingly report false
information—that is, outright lies—about fellow employees.
Conceding as much, the government emphasizes that
employees can face internal discipline for false or inaccurate
reporting. See Appellant’s Reh’g Br. 8, 30–31. A knowingly
false standard, moreover, would obviate any need for jurors to
“weigh the strength” of the information reported, Rattigan,
643 F.3d at 987, or to second-guess the employee’s
determination that seemingly doubtful or insignificant
information warranted reporting. Under a knowingly false
standard, whether the information reported was sufficient to
“raise[] doubts,” Exec. Order No. 12,968, § 6.2(b), 60 Fed.
Reg. at 40,253, about the plaintiff’s eligibility for a security
clearance is irrelevant; the only question is whether the
reporting employee actually knew at the time of the reporting
that the information he provided was actually false. The
limited scope of this inquiry would also alleviate the
government’s (and Egan’s) concerns about conflicting
evidentiary standards, for juries would apply the
preponderance standard only to determine whether the
employee knowingly reported or referred false information
and would make no judgments, under any standard, as to
whether the plaintiff’s continued access to classified
information was clearly consistent with national security.

     The government objects that even limited Title VII
liability for knowingly false reporting would likely have a
chilling effect. According to the government, plaintiffs will
simply allege knowing falsity in every case, an allegation the
government claims is “famously easy to make and difficult to
rebut.” Appellant’s Reh’g Reply Br. 14. Given the ease with
which plaintiffs could allege such claims, the government
argues, employees might hesitate to report information they
                               13
find doubtful, fearing that a plaintiff could argue, and a jury
could find, that they knew the information was false when
they reported it. As the government sees it, there is no need to
make a “policy-based exception” for cases involving
fabricated security reports because “such reports are, by
definition, already subject to independent review and
investigation” through internal agency procedures.
Appellant’s Reh’g Br. 8. Such procedures, the government
tells us, allow agencies to inquire into allegations of
knowingly false reporting quickly, confidentially, and with
appropriate sensitivity to the wide margin of error mandated
by the Executive Order. In contrast, the government claims,
Title VII litigation presents a greater risk of chill because of
its public nature, the lengthy timeframe of civil cases, and
other burdens imposed by litigation. See Oral Arg. Rec.
23:25–25:09; Appellant’s Reh’g Br. 30–31; Appellant’s
Reh’g Reply Br. 13–15.

     In our view, the government’s concerns are insufficient to
justify the sweeping immunity from Title VII liability that it
seeks. Although civil litigation can impose substantial
burdens, internal agency proceedings carry a more immediate
threat of discipline, “ ‘up to and including removal,’ ” see
Rattigan, 643 F.3d at 991 (Kavanaugh, J., dissenting)
(quoting 71 Fed. Reg. 64,562, 64,563 (Nov. 2, 2006))—a
threat that surely creates its own chilling effect. Moreover,
contrary to the government’s arguments, we see no reason to
think that an agency has any greater competence than juries
when it comes to determining what a particular person knew
at a particular time and whether that person intentionally
reported false information about a co-worker. Indeed, making
such determinations is the quintessential function of a jury.
See Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009) (“Our
legal system . . . is built on the premise that it is the province
of the jury to weigh the credibility of competing
                              14
witnesses[.]”). By contrast, the agency’s expertise in security
matters and its sensitivity to the Executive’s broad reporting
standard have little relevance to whether an employee has
reported knowingly false information. And though allegations
of knowing falsity may be easy to make, they are, in our
experience, far from easy to prove. If this evidentiary
difficulty fails to deter unfounded claims, district courts can
be counted upon to weed them out at summary judgment.

     In reaching this conclusion, we are not, as the
government suggests, creating a “policy-based exception” for
knowingly false reporting claims. Rather, given that Egan
imposes an absolute bar only on review of Security Division
decisions, the limits we place on Title VII liability for other
decisions must be no broader than necessary to protect the
integrity of the Division’s security clearance-related
responsibilities. In this way, we preserve to the maximum
extent possible congressionally mandated protections against
and remedies for unlawful retaliation in the workplace. 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 for statutorily protected activity, and Congress’s
purpose in enacting Title VII would be frustrated. But we
need not grant the government such broad immunity. As
explained above, a narrow, knowingly false standard for
security reporting claims creates no conflict with Executive
Order 12,968. And given the government’s representation that
agencies have internal procedures for investigating and
punishing knowingly false reports, we think that the marginal
chilling effect, if any, of allowing such Title VII cases to go
forward would be negligible. For all of these reasons, we hold
that Rattigan’s Title VII claim may proceed only if he can
show that agency employees acted with a retaliatory or
                              15
discriminatory motive in reporting or referring information
that they knew to be false.

                             IV.
     Both Rattigan and the government argue that were we to
adopt a knowingly false standard for security reporting claims
under Title VII, there would be no need to remand for further
proceedings. For its part, the government argues that the
record contains no evidence supporting a claim that OIO
officials knowingly referred false information to the Security
Division and that remand would therefore be futile. Rattigan
sees the record very differently, claiming that the jury
effectively found knowingly false reporting and urging us to
affirm the district court’s judgment on that ground. Neither is
correct.

     The government opposes remand on the ground that
“[t]he basic facts reported in the Leighton EC were largely
uncontested at trial, and the only question was what inference
of security risk should properly be drawn from those facts.”
Appellant’s Reh’g Br. 32 (citation omitted). As to many of the
allegations in Leighton’s EC, the government is certainly
correct. Rattigan has acknowledged, for instance, that he
occasionally wore traditional Saudi clothing to the Embassy
and that he restricted interactions between American
temporary duty staff and Saudi intelligence personnel—both
facts that formed part of the basis for the OIO security
referral. Although Rattigan claims that these allegations were
in dispute, his evidence suggests only that he had previously
explained this behavior to his supervisors and provided an
innocent explanation for his conduct. For example, Rattigan
points out that he had explained to OIO management that
Saudi personnel would view frequent meetings with
temporary staff as an affront and that he therefore chose to
limit such meetings in order to preserve good relations with
                              16
the Saudi intelligence service. While this may indicate that
OIO officials had little reason to believe that Rattigan’s
actions raised legitimate security concerns—an issue that has
no relevance under the knowingly false standard—it does not
suggest that Leighton reported or that OIO officials referred
factual information they knew to be false. The same can be
said of the allegations that Rattigan dressed in traditional
Saudi clothing, that the Saudi intelligence service attempted
to find him a wife, and that he could be contacted only
through the Saudi intelligence service while on the Haaj.

     Nonetheless, our review of the record suggests that there
may be evidence to support a claim that Leighton or other
OIO officials chose to report other information that they knew
to be false. For example, Leighton’s EC states that Rattigan
hosted wild parties attended by “so-called ‘nurses,’ ” who
Leighton claims were described in a manner suggesting “that
the term ‘nurses’ was being used by Legat Rattigan as a
euphemism for ‘prostitutes.’ ” Leighton EC, at 2. In support
of his claim that this allegation was knowingly false, Rattigan
contends that it was widely known by his co-workers,
including OIO staff, that he was dating—and later married—a
woman who was in fact a nurse. Given this, Rattigan claims,
Leighton and his OIO supervisors knew that his suggestion
that the nurses might be prostitutes was false. The government
responds that Leighton’s report only recounted various
conversations that suggested to Leighton that the “nurses”
might be prostitutes. According to the government, because
Rattigan offers no evidence suggesting that Leighton
fabricated the details of these conversations, Rattigan cannot
establish any false reporting. But this argument ignores
Rattigan’s contention that Leighton and other OIO officials
knew that Rattigan was dating a woman who actually was a
nurse. See Appellee’s Reh’g Br. 19–20; see also Manneson
Dep. 29–30 (deposition of Rattigan’s wife describing
                              17
meetings with Rattigan’s co-workers). Moreover, although
Leighton’s EC states that he “was told” that Rattigan had
hosted a party “in which he and two other [FBI employees]
had had sexual relations with one or more of the so-called
‘nurses,’ ” Leighton EC, at 2, the Security Division
investigation concluded that “[n]one of the personnel
interviewed could offer any information which would support
SSA Leighton’s allegation that Legat Rattigan, along with
several other [temporary duty] personnel, engaged in sexual
relations with these women.” Memorandum from Maureen
Chelak, Sec. Div. Analytical Integration Unit 3 (Sept. 18,
2002). All this suggests that Rattigan may be able to prove
that (1) no one “told” Leighton that Rattigan hosted parties in
which he and others engaged in sexual relations with
“nurses,” and that (2) because Leighton and other OIO
officials knew that Rattigan’s girlfriend and her co-workers
were in fact nurses, the claim that circumstances suggested
they might instead be prostitutes was knowingly false.

      At this stage, we have no need to determine whether the
record evidence is sufficient to allow a reasonable jury to
conclude that Leighton or his OIO supervisors knowingly
reported or referred false factual allegations to the Security
Division. Because we set forth this knowingly false standard
for the first time on appeal, Rattigan had little reason to
thoroughly develop evidence of knowing falsity in the district
court. Given this, and given that the record contains some
evidence that could form the basis for a claim of knowingly
false security reports, we shall remand for the district court,
after permitting any necessary discovery, to determine in the
first instance whether there is sufficient evidence of knowing
falsity to allow Rattigan to bring his claim before a jury.
                             18
                             V.
     For the foregoing reasons, we vacate the district court
judgment and remand for further proceedings consistent with
this opinion. Our earlier opinion, Rattigan, 643 F.3d 975,
remains in effect to the extent consistent with this opinion.

                                                 So ordered.
     KAVANAUGH, Circuit Judge, dissenting:              Although
slightly tweaking its analysis in response to the Government’s
petition for rehearing, the majority opinion still suffers from a
basic flaw. The majority opinion continues to insist that some
agency security clearance decisions are judicially reviewable.
In my respectful view, the majority opinion’s conclusion
cannot be squared with the Supreme Court’s decision in
Department of the Navy v. Egan, 484 U.S. 518 (1988).

     In Egan, 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 far 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
“appropriately trained” employees within the agency. Maj.
Op. at 6 (quoting Rattigan v. Holder, 643 F.3d 975, 983 (D.C.
Cir. 2011)). Under the majority opinion’s new-fangled
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
                               2

into reviewable and unreviewable portions is nowhere to be
found in Egan, and it 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
“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.
       (citation omitted).
   •   “[T]he Senate and House Committees . . . gave no
       indication that an agency’s security-clearance
                              3

       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
the necessary expertise in protecting classified information.”
Id. 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 employees 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. (citation, ellipsis, and internal quotation marks omitted)
(emphases added).
                               4

     Nothing in Egan’s language suggests that the Supreme
Court was only barring review of the security clearance
actions of “appropriately trained” employees, as the majority
opinion here contends. Maj. Op. at 6 (quoting Rattigan, 643
F.3d at 983). Nor have this Court’s decisions applying Egan
drawn the line that the majority opinion creates. Following
the Supreme Court’s lead, we have referred to the
decisionmaking process of the agency as a whole, not to
certain parts or employees 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) (“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”). The separation of
powers issue identified by the Supreme Court in Egan and
reflected in our subsequent decisions stems from the kind of
decision being made by the agency official – a predictive
judgment about security risks – not from the job title or
expertise of the agency official making the 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
                               5

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
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 pursuant to President
Clinton’s executive order. I cannot square that with Egan.

     I appreciate and share the majority opinion’s concern
about deterring false 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,
                                6

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 revise the rule set forth in Egan; that’s a decision
for the Supreme Court or Congress.

                              ***

     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, we must 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 I would dismiss it.

     I respectfully dissent. When we vacated the prior panel
decision, we indicated that the parties would have an
opportunity to file new petitions for rehearing en banc after
our new opinion was issued. If the Government files a
petition for rehearing en banc in response to today’s
revamped but still-flawed majority opinion, I will urge the full
Court to grant it.
