[00:00:02] Speaker 00: Case number 13-5374, Wilford Samuel Rattigan, Appellant v. Eric H. Holder Jr., Attorney General. [00:00:09] Speaker 00: Mr. Moore for the Appellant, Mrs. Scarborough for the Appellee. [00:00:18] Speaker 05: May it please the court. [00:00:20] Speaker 05: We're here on a de novo review of a grant of summary judgment by the district court below in this case. [00:00:26] Speaker 05: There's a course of rich history for this court. [00:00:29] Speaker 05: This is the third time this case has been before the court. [00:00:31] Speaker 05: I know, Judge Kavanaugh, you've been on all three panels, so you have a definite historian on it. [00:00:39] Speaker 05: I want to deal with what I believe to be the three fundamental errors that Judge Huvel made in granting summary judgment. [00:00:45] Speaker 05: she inexplicably found that there was no employer that took a materially adverse action against the appellant. [00:00:54] Speaker 05: And I would note that [00:00:56] Speaker 05: The question here was not whether both the referral and the investigation, as the government puts in their brief as they frame the issue. [00:01:04] Speaker 05: This case has never been about the investigation done by the security division. [00:01:07] Speaker 05: It's always been about the referral. [00:01:10] Speaker 05: We believe there was ample evidence, abundant evidence, that in fact the management of OIO, of the Office of International Operations of the FBI, [00:01:21] Speaker 05: was well aware of what was going on and took part in this process. [00:01:26] Speaker 05: And I think from looking at the facts and inferences, reasonable inferences from those facts, we can conclude that what happened here was a concerted effort by the management of OIO to retaliate against [00:01:41] Speaker 05: He sees an experienced FBI agent, Wilfred Rattigan, who's in court today, by the way, who's now entering his 27th year as an FBI agent, and that this management had a first-hand knowledge of what was happening here. [00:02:01] Speaker 05: And I think we laid it out fairly clearly in our briefs. [00:02:04] Speaker 05: I would just highlight the fact that there was a sense of parallel tracks going on in late 2001, early 2002. [00:02:10] Speaker 05: There were complaints that were being made by Mr. Ratigan at the time that he felt, whether you agree with him or not, that he felt that he was being discriminated against in terms of how he was being treated as he [00:02:22] Speaker 05: Lee Gatt in charge of the FBI's Riyadh Saudi Arabia office. [00:02:27] Speaker 05: There was also, at the same time, efforts being made, and there's clear documented evidence on this, efforts being made by the management of OIO to go after Mr. Rattigan for having made those complaints. [00:02:42] Speaker 05: And the vehicle for that was Donovan Layton. [00:02:47] Speaker 05: Donovan Layton was assigned as a temporary duty [00:02:52] Speaker 05: assignment to Riyadh from November 26 to December 21, 2001. [00:02:59] Speaker 05: He was a very questionable choice for that position. [00:03:03] Speaker 05: He had less than a few months ago had gone AWOL from his post. [00:03:08] Speaker 05: As a legat in the Caribbean, he had an admitted problem with alcohol. [00:03:14] Speaker 05: He was in an alcohol rehab. [00:03:16] Speaker 05: It clearly was there was no justification not only for Layton to be given this assignment, but for him to even have access to confidential materials that violated the FBI's own guidelines. [00:03:31] Speaker 05: But nevertheless, they sent him there. [00:03:33] Speaker 05: And he made certain observations while he was there, observations that [00:03:37] Speaker 05: No other temporary duty employee had made in the years that they had been assigned to Riyadh. [00:03:46] Speaker 05: And in fact, Mike Pismuka, who was the section chief of the Office of International Operations, had questioned TDY employees when they came back, looking for information about how the office is running, looking for information about Radigan. [00:04:01] Speaker 05: He came back and ended up writing an 18-page single-spaced [00:04:07] Speaker 05: electronic correspondence that contained an incredible amount of unsubstantiated and false allegations about Mr. Radigan. [00:04:18] Speaker 01: Was that just the word? [00:04:19] Speaker 01: The second panel regard four of the six claims as truthful. [00:04:27] Speaker 01: Judge, we don't think. [00:04:28] Speaker 01: I thought they were conceded to be truthful. [00:04:32] Speaker 05: Judge, we would dispute. [00:04:35] Speaker 05: We would dispute. [00:04:36] Speaker 05: The only thing that we would accept as truthful was that, on occasion, Mr. Ratigan wore a Saudi Arabian native dress. [00:04:46] Speaker 05: But the issue there was not whether that was a fact that would lead, that would, in and of itself, justify an investigation. [00:04:54] Speaker 05: The executive order in this case [00:04:56] Speaker 05: I want to – I'm not sure what the number is. [00:05:00] Speaker 05: I lost the number. [00:05:01] Speaker 05: But the executive order at issue here requires an agency like the FBI to be concerned about conduct that raises the reasonable suspicion that somebody is a threat to the national security. [00:05:17] Speaker 05: The issue of whether he was in Arab dress was not a fact that would do that. [00:05:23] Speaker 01: That doesn't go to knowing falsity. [00:05:25] Speaker 05: Right, Judge. [00:05:27] Speaker 01: I'm just talking about knowing falsity, which is what we have to be concerned with. [00:05:31] Speaker 05: Right. [00:05:31] Speaker 05: And I think that it's clear that the OIO management [00:05:38] Speaker 05: Mike Pismuca, Leslie Kazaban, who was the assistant director of that division, Corey Gleischer, that they knew that the information in this electronic correspondence, this 18-page single-space document, was false. [00:05:53] Speaker 05: They, in fact, they anticipated the manufacturing. [00:05:58] Speaker 01: My question was, were there not four out of the six claims in dispute in the previous cases? [00:06:06] Speaker 01: No, Judge. [00:06:07] Speaker 01: Were not four of them, all but items three and four, conceded as truthful? [00:06:13] Speaker 01: You switched the topic to being irrelevant or having implications that were irrelevant. [00:06:21] Speaker 01: not a question of truthfulness, much less, it's not a question of falsity, much less a question of knowing falsity. [00:06:30] Speaker 05: We articulated in our brief on page 34 to 42 and also in the affidavit that was submitted to the judge of L below [00:06:39] Speaker 05: and went through each item, item by item, in that EC, demonstrating why we believe, demonstrating why the allegation was false and why the management of OIO, which is, after all, the employer who caused this retaliation, demonstrating that it was, that these allegations were false. [00:07:01] Speaker 02: Mr. Ratigan did not hold... I think what Judge Williams is asking is, and Ratigan too, [00:07:07] Speaker 02: Didn't we, in a way, foreclose you from making some of the argument you're making now? [00:07:12] Speaker 02: Radigan 2, we say, the government opposes remand on the ground that the basic facts reported in the Layton EC were largely uncontested at trial. [00:07:23] Speaker 02: And then we said, as to many of the allegations in Layton's EC, the government is certainly correct. [00:07:32] Speaker 02: I know you're disputing whether the government is certainly correct, but we're bound by what the previous panel said. [00:07:38] Speaker 05: Well, first of all, I don't think the panel was in a position to find the facts in this case. [00:07:42] Speaker 05: I think that was properly for the district court. [00:07:44] Speaker 02: Well, whether it was proper or not, the panel did say the government is certainly correct. [00:07:49] Speaker 02: Doesn't that bind us? [00:07:52] Speaker 05: No, I don't think it does, Judge. [00:07:54] Speaker 02: Why not? [00:07:55] Speaker 05: Because the court on Radigan 1 and Radigan 2 was talking about, by way of example, certain facts that may or may not be true. [00:08:06] Speaker 05: I understand there's language that says it's true, but there was never a concession by the plaintiff that any of that was true. [00:08:12] Speaker 05: That was hotly debated. [00:08:14] Speaker 02: Sure, but the court says, follows up, although Rattigan claims these allegations were in dispute, his evidence suggests only that he had previously explained this behavior to his supervisors and provided an innocent explanation. [00:08:27] Speaker 02: While this may indicate that OIO officials had little reason to believe that Rattigan's actions raise legitimate security concerns and issue that has no relevance under the knowingly false statement, it does not suggest that Leighton reported or that OIO officials inferred factual information [00:08:44] Speaker 02: they knew to be false. [00:08:46] Speaker 02: Now then it lists a separate set of items which are open to discussion. [00:08:50] Speaker 02: But it does sound like, for purposes of the remand, the panel has already decided some elements of the EC as being true. [00:09:02] Speaker 02: And I understand that you dispute that, but we have to follow what the previous panel says. [00:09:06] Speaker 05: Well, right. [00:09:08] Speaker 05: And neither side chose to file a petition for certiorari to challenge that. [00:09:13] Speaker 05: I don't think our failure to do that, given the fact that the case was remanded to the district court using a new standard that had never been applied for the court to then, for the parties then to deal with the question of whether there was retaliation or this knowing falsity standard. [00:09:28] Speaker 05: I don't think this court is bound by that language in the previous opinion. [00:09:36] Speaker 01: The previous panel did feel that it could apply its principle to the record before it, and it did so. [00:09:47] Speaker 01: Judge Garland says we're bound by that. [00:09:50] Speaker 05: Well, that gets really to the heart of the issue in a way, is that are these facts [00:09:58] Speaker 05: in and of themselves, knowing they've also, are they facts that suggest some concern about whether he's a risk to national security? [00:10:06] Speaker 01: And that's what the executive order... That will address that too. [00:10:09] Speaker 01: And it explicitly excluded that kind of claim. [00:10:14] Speaker 05: And that's why we dispute, that's why we think this standard that the previous panels have set forward is unworkable. [00:10:22] Speaker 02: And if you look at it... And I know for sure we can't talk about that, right? [00:10:26] Speaker 02: That's for the Anban Court, right? [00:10:28] Speaker 02: This is something they're reserving just for the Anban Court. [00:10:30] Speaker 05: Right. [00:10:31] Speaker 05: I understand that, Judge. [00:10:32] Speaker 05: And I'm not going to suggest that you should... You won't help any to argue with us because... No, I'm not going to use my time. [00:10:36] Speaker 02: We won't have any power to do anything about it. [00:10:38] Speaker 02: Save it for the petition for rehearing Anban. [00:10:40] Speaker 05: I understand. [00:10:41] Speaker 05: And I'm not going to do that. [00:10:42] Speaker 05: All I'm saying is the issue of what is knowingly false can't be taken out of the context of what's happening there. [00:10:49] Speaker 05: And if you look at what the district court did below, it just simply accepted the fact that Layton was a lone actor, that there was no involvement with management in constructing this EC that was full of, as they themselves said when they reviewed it. [00:11:04] Speaker 05: I mean, you have to understand, the evidence was that [00:11:07] Speaker 05: The management of OIO got that EC. [00:11:11] Speaker 05: Walt Smith, who we didn't have a chance to depose because we didn't understand that we were operating under a different set of assumptions then, went through that EC line by line, page by page, made comments. [00:11:25] Speaker 05: And an email. [00:11:26] Speaker 01: I mean, from the first of these cases, I haven't understood how that helped you. [00:11:38] Speaker 05: I'm sorry, Judge. [00:11:40] Speaker 01: I haven't been clear at all how the Smith edit, if you will, helped your case. [00:11:48] Speaker 01: Judge, as I understand it, your claim is that Smith looked at it and urged that it be sort of trimmed, cut back, made cleaner. [00:12:00] Speaker 05: He made comments about it. [00:12:02] Speaker 05: He said, in his plaintiff's exhibit 17, he said, [00:12:07] Speaker 05: focus on the issue of, first and foremost, being the most important issue, the issue of fraternization with foreign nationals and sexual relations with the same. [00:12:16] Speaker 05: Second, this should be paired with his absence from Legat. [00:12:21] Speaker 01: It may have been bad editorial advice. [00:12:24] Speaker 01: I'm sorry? [00:12:25] Speaker 01: From what you say, it doesn't sound like editorial advice to talk through things. [00:12:30] Speaker 01: and false things. [00:12:32] Speaker 05: It's not, it's a question of are they, it's not, the reason it's important is Judge Hovail said what Leighton did does not implicate what the employer could be held liable for for retaliation. [00:12:45] Speaker 05: We think that was wrong. [00:12:46] Speaker 05: We think that was an error. [00:12:47] Speaker 05: We think that she overstepped her bounds as a determining summary judgment by finding facts that are not supported by the record. [00:12:56] Speaker 05: The record is clear [00:12:59] Speaker 05: That the management of OIO, and there's a, Mr. Smith's email to, when he's gone through this, this document that he says, describes as inflammatory and unsupported by innuendo and hearsay, he addresses it to Mike Kuzmuka and Les Casabans, the two managers. [00:13:20] Speaker 01: I'm still not sure how that helps your case. [00:13:23] Speaker 01: Because then they respond to... [00:13:25] Speaker 01: to tamp down the character of the original draft. [00:13:31] Speaker 05: Because then they do something very important. [00:13:34] Speaker 05: Mike Pismukren, this is playing for Zubat 18, he says he has the finalized version of the EC and he writes an email. [00:13:43] Speaker 05: He writes a handwritten note to Donovan Layton. [00:13:46] Speaker 05: He says, [00:13:47] Speaker 05: please review the draft EC, and it tells him to do something. [00:13:52] Speaker 05: Then he says, please add to attention security division. [00:13:56] Speaker 05: Now, that's important because Layton testified in his deposition in this case that he was originally going to simply refer this to the employee assistance unit because he thought the agent had some problems. [00:14:08] Speaker 05: He then backed off of that trial and said, no, I was wrong. [00:14:11] Speaker 05: But this shows not that this all [00:14:16] Speaker 05: came from Layton, but that the management of OIO, Mike Pishmuka was saying, add this to the attention of the security division, send it on to the security division, knowing the consequences of that referral, which I don't think anybody would doubt. [00:14:29] Speaker 05: Referring somebody for a security investigation is an adverse employment. [00:14:32] Speaker 01: How does that suggest Pishmuka knew that anything in it was false? [00:14:42] Speaker 01: Well, I mean, I can see an argument the other way, but I don't see how it helps an argument that he knew it was false. [00:14:53] Speaker 05: I'm at a loss to know how to respond to that, because in each and every instance that we go through in our brief, I can go through it now, but it's in the brief pages 34 to 42. [00:15:03] Speaker 05: It's also in the affidavit that Mr. Ratigan submitted [00:15:08] Speaker 05: in opposition to somebody's judgment, goes through each point, point by point, and demonstrates how it's inaccurate. [00:15:14] Speaker 05: The four things that you talk about, the Saudi attire. [00:15:17] Speaker 05: Yes, he was wearing Saudi attire on occasion, but no, he never wore it at work. [00:15:24] Speaker 05: It was always after work. [00:15:28] Speaker 05: And it was never concealed. [00:15:30] Speaker 05: It was in fact publicized throughout the FBI. [00:15:32] Speaker 02: They knew it was going on They knew there was no indication that that suggested anything about whether he's a loyal servant of the United States government assume for the moment that we actually are bound by the prior panels ruling about some statements being true or being uncontested so [00:15:52] Speaker 02: Do you agree that the, so after the prior panel rule, the Supreme Court issued its opinion in Nasser, requiring but-for causation for retaliation claims. [00:16:04] Speaker 02: Do you still dispute that that applies to cases involving the government? [00:16:09] Speaker 05: The but-for analysis? [00:16:11] Speaker 05: Yes, yes. [00:16:12] Speaker 05: We would take issue with that, but we would say that even under that standard, there's enough that's false that would have determined, that should have determined whether this thing was referred to the security division. [00:16:27] Speaker 02: Let's take this part in two ways. [00:16:30] Speaker 02: What's the argument that it doesn't apply? [00:16:33] Speaker 02: The Supreme Court said for Title VII that you have to have but four causation for retaliation. [00:16:39] Speaker 02: Both the Second Circuit and the Sixth Circuit since then have both held that that applies to cases against the government. [00:16:45] Speaker 02: What's the argument that it doesn't apply for cases against the government? [00:16:49] Speaker 05: I think the standard has long been that if it was a motivating or substantial factor. [00:16:56] Speaker 02: Yes, that was the standard until, in this circuit, it was uncertain. [00:17:03] Speaker 02: We said in two cases, Borgo and Porter versus Nazio, it's undecided in this case is whether mixed motive or not. [00:17:11] Speaker 02: And that's what the panel had before it when it decided right again to. [00:17:15] Speaker 02: But then the Supreme Court made quite clear that now the standard is but for. [00:17:19] Speaker 05: All right, so if this... I would say, Judge, it doesn't trouble me, the but for standard. [00:17:23] Speaker 05: In fact, that's what the jury was instructed. [00:17:25] Speaker 05: If you look at the jury's instructions, they were instructed that the plaintiff had to show but for causation. [00:17:32] Speaker 02: So if we assume, for purposes of the discussion, that there are some true things in the referral and some knowingly false things in the referral, [00:17:44] Speaker 02: How can we conclude that the, but for the knowingly false things, there wouldn't have been a referral? [00:17:54] Speaker 02: You would have to evaluate the true things, right, in order to do that. [00:18:01] Speaker 05: Well, Judge, I think that juries are asked all the time to parse evidence to make a determination whether there's enough there that would have affected whether there was a referral to the security division. [00:18:11] Speaker 02: That's right. [00:18:11] Speaker 02: They'd have to weigh the significance of the true things, right? [00:18:15] Speaker 02: But isn't that exactly what we said in Radigan 2, can't do? [00:18:21] Speaker 05: No, I don't think so. [00:18:22] Speaker 05: I think this court in Radigan II said there are some things that maybe there's not a dispute, although we dispute that. [00:18:31] Speaker 02: But there are clearly things that are in dispute, such as whether he's... But Radigan II was under the circumstances where a mixed motive theory was acceptable. [00:18:39] Speaker 02: And if it isn't acceptable about anymore, we have this problem. [00:18:44] Speaker 02: And Radigan II says, can't weigh this... [00:18:49] Speaker 02: A knowingly false standard obviates the need for jurors to weigh the strength of the information reported, or to second-guess the employee's determination that seemingly doubtful or insignificant information warranted reporting. [00:19:05] Speaker 02: So if there is some true information in there, [00:19:10] Speaker 02: We would have to weigh that. [00:19:11] Speaker 02: The jury would have to weigh that information, right? [00:19:14] Speaker 02: Weigh it against whether or not that's enough to cause a referral. [00:19:19] Speaker 05: I mean, I understand the dilemma here. [00:19:22] Speaker 05: But if you don't allow the jury to weigh stuff that's true and stuff that's clearly not true, then you've eviscerated Title VII. [00:19:34] Speaker 02: Well, then you have [00:19:38] Speaker 02: a referral that is wholly false, you could still bring a case about. [00:19:44] Speaker 05: Yes, but all a government agent has to do is throw in one true fact, or two true facts, and then, well, you can't parse that out. [00:19:53] Speaker 05: You can't parse out what's true and what's not true. [00:19:55] Speaker 02: But this sounds like the argument you want to make to the en banc court then. [00:19:59] Speaker 02: That's your argument about why the panel's decision doesn't go far, it goes too narrow and of course the government has the opposite argument so you'll both have plenty of an opportunity to raise that. [00:20:13] Speaker 02: But I'm asking you to think about this within the constraints of what our three little people here can do. [00:20:22] Speaker 05: I understand, and you're far from three little people, but the... Well, for this purpose, I'm afraid we are. [00:20:28] Speaker 02: I don't mean that literally, but... Judge Williams is very tall. [00:20:32] Speaker 05: But I think that even with Nassar and how that's affected this, that I think there is still room under the regimen of the tension between the executive order and Title VII in a properly pled case, and here [00:20:51] Speaker 05: Don't forget, we're talking about a case where all these allegations were found to be unfounded in a subsequent investigation. [00:20:58] Speaker 05: So that has to represent something. [00:21:01] Speaker 05: I mean, even though the circuit has found that some of it was true, the FBI's own security division found that all of the allegations in this AC were unfounded. [00:21:13] Speaker 05: And then a jury hearing this evidence and being instructed on but four. [00:21:18] Speaker 01: I'm sorry, Judge. [00:21:29] Speaker 01: So they found it to be untrue, but I thought it was conceded, for example, that the wear angle was how the outfits were conceded to be true. [00:21:40] Speaker 01: It's a question of how it fits, but it was security analysis. [00:21:44] Speaker 05: Well, I think that's what you said earlier in your oral argument. [00:21:51] Speaker 05: Yeah. [00:21:51] Speaker 05: I'm perhaps making an argument that's best suited for the unblocked panel. [00:21:54] Speaker 05: But I don't think you can have a standard of knowing falsity divorced from the context in which the facts arise. [00:22:02] Speaker 05: And that's what Radigan II has led to. [00:22:05] Speaker 05: You have opinions now in the district court [00:22:08] Speaker 05: which are raising the same problems that Judge Kavanaugh, you mentioned... Okay, I think you're right. [00:22:14] Speaker 02: This is an argument for the... I'm just willing to let you finish the sentence. [00:22:20] Speaker 02: Just leave it at Judge Kavanaugh, you were right. [00:22:22] Speaker 02: He's happy with that. [00:22:25] Speaker 05: I apologize for going over that. [00:22:27] Speaker 02: That's all right. [00:22:28] Speaker 02: We'll hear from the Governor. [00:22:40] Speaker 04: May it please the Court, Charles Scarborough for the Attorney General. [00:22:43] Speaker 04: In its prior decisions in this case, this Court recognized that allowing Title VII claims premised on allegations that an employee reported concerns about another employee's fitness to hold a security clearance presents serious EGAN problems because it would shield the reporting of information necessary for executive branch officials to make predictive judgments about who may hold security clearances. [00:23:04] Speaker 04: In light of the essential role that reporting even questionable or marginal security concerns plays in this context, [00:23:10] Speaker 04: This court sharply limited the kind of claim that could proceed without running afoul of Egan, holding that it was restricted to allegations that an employee reported information that he knew to be false. [00:23:22] Speaker 04: And the court then remanded it to the district court to determine whether there was sufficient evidence. [00:23:26] Speaker 04: of knowingly false reporting to allow the plaintiff here to get to a jury without violating Egan. [00:23:31] Speaker 04: And on remand, the district court properly exercised the gatekeeping function that this court assigned to it and held that the FBI was entitled to summary judgment on plaintiff's retaliation claim for two reasons. [00:23:41] Speaker 04: First, the court properly held that plaintiff failed to present any evidence that any of the supervisors reported information to the security division that they knew to be false. [00:23:51] Speaker 04: And in the alternative, the court held that no reasonable jury could find that retaliatory animus, rather than legitimate security concerns, was the but-for cause of the referral to security. [00:24:01] Speaker 02: Let me start with the first of this. [00:24:02] Speaker 02: This is the Vance argument, is that right? [00:24:04] Speaker 04: It's in part the Vance argument. [00:24:06] Speaker 04: I see sort of three paths to affirming the district court. [00:24:09] Speaker 04: One is the path that the district court took at the threshold is that there was no relevant supervisor for whom the FBI could be held liable. [00:24:17] Speaker 02: And that's based on Vance. [00:24:18] Speaker 04: Well, it's based on Vance and Farragher and just general vicarious liability. [00:24:22] Speaker 02: Well, those are harassment cases, right? [00:24:25] Speaker 02: Those are cases about the nature of the workplace, right? [00:24:30] Speaker 02: Yes. [00:24:31] Speaker 02: OK. [00:24:33] Speaker 02: And your argument is that that applies even to a substantive discrimination or retaliation claim, that an agency is only liable for actions by a supervisor. [00:24:45] Speaker 02: Is that right? [00:24:45] Speaker 04: Yes, Your Honor, and the reason for that is the same as the reason it would be in the sexual harassment context. [00:24:51] Speaker 04: In a hostile work environment, [00:24:52] Speaker 04: sort of at some level, you know, the question becomes, was the employer negligent in allowing it to go forward? [00:24:59] Speaker 02: Here, it's a similar sort of question about... There's another line of cases, you know, the cat's paw cases. [00:25:05] Speaker 05: Yes, Your Honor. [00:25:06] Speaker 02: And the Supreme Court has affirmed that application to Title VII for retaliation claims and for discrimination claims. [00:25:13] Speaker 02: Although the case itself wasn't a Title VII case, but in Staub the case, the court says that an employer may be held liable for employment discrimination based on discriminatory animus of an employee who influenced but did not make the ultimate employment decision. [00:25:32] Speaker 02: In Griffin versus Washington Invention Center, we did the same. [00:25:37] Speaker 02: And the Seventh Circuit, which started this cat's paw theory, said the same in Nichols. [00:25:41] Speaker 02: That is, where an employee has discriminatory animus, or retaliatory animus, and it's adopted by the supervisor, perhaps without the supervisor's knowledge, that's imputed to the employer. [00:25:54] Speaker 04: Understood, Your Honor. [00:25:56] Speaker 02: So how do you square that with what the district court did here, relying only on Vance, without even mentioning [00:26:02] Speaker 04: Well, first of all, the plaintiff accepted sort of the supervisory reliability theory below. [00:26:08] Speaker 02: I understand the argument. [00:26:10] Speaker 02: No, no, but I understand it's possible the case could be resolved on a forfeiture ground. [00:26:14] Speaker 02: I understand. [00:26:15] Speaker 04: So I'll leave that aside for now. [00:26:17] Speaker 04: I think the critical reason why the Katz-Paul theory doesn't work is that Donovan Layton, the person who is supposedly, you know, his discriminatory animus is going to be imputed up [00:26:27] Speaker 04: to the supervisors had no retaliatory motive. [00:26:30] Speaker 04: There's never been an allegation that he's had a retaliatory motive. [00:26:32] Speaker 04: So that's the fatal defect in having a cat's-ball theory, perhaps why it was never raised in this case. [00:26:37] Speaker 04: It's simply not a theory that applies here. [00:26:39] Speaker 04: And I would point out that in terms of the vicarious liability principles, there's even more reason to be careful about holding an employer liable for sort of one-off comments by low-level employees, you know, reporting concerns. [00:26:53] Speaker 04: And it's especially important where [00:26:55] Speaker 04: Here, you have a system under the Executive Order 12968 in which employees are encouraged and expected. [00:27:02] Speaker 04: They are required to report even mundane things that may, in retrospect, be wrong, be trivial. [00:27:08] Speaker 04: And this Court, in its prior decisions, recognized all that. [00:27:11] Speaker 06: But what about the prior decision saying that – seeming to say that it would be good enough if Leighton alone had knowingly reported false information? [00:27:20] Speaker 04: I think that the court... Is that just wrong? [00:27:24] Speaker 04: Well, I think what the court said in Radigan 2 was Leighton or his OIO supervisors. [00:27:29] Speaker 04: I think the court... You know, I don't hate to tell a member of the panel what the panel was thinking, but I think that they just weren't thinking about sort of... [00:27:36] Speaker 04: the question down the line of employer liability. [00:27:38] Speaker 04: We hadn't gotten to that point. [00:27:40] Speaker 04: The case, as you know, had been litigated and presented to the jury on a different premise, on the premise that it was the security division's investigation that caused the action here. [00:27:50] Speaker 04: So we never really got to thinking about what the referral was and who might or might not be liable for the referral. [00:27:57] Speaker 04: This is an unusual case in that respect in the sense that the employer did [00:28:02] Speaker 04: as far as we can tell, exactly what it was supposed to do. [00:28:06] Speaker 04: It got, you know, concerns raised by a lower-level employee. [00:28:11] Speaker 04: They elevated them to the proper people in the FBI. [00:28:13] Speaker 04: The FBI quickly undertook an investigation and decided, no, these aren't security concerns that warrant revocation of the security. [00:28:20] Speaker 02: So do you think that the not one-off but repeated description of Layton or OIO repeatedly throughout Redigan II is just [00:28:30] Speaker 02: just they weren't thinking about what the problem was? [00:28:32] Speaker 04: I don't think that they were dealing with the issue of vicarious liability. [00:28:36] Speaker 04: That was not something that was litigated in the prior appeal. [00:28:38] Speaker 02: But the only issue, as they said in Radigan in Title VII, is the employer's liability. [00:28:45] Speaker 02: So somehow it would only be the employer's liability. [00:28:47] Speaker 02: There's no argument that Leighton was going to be responsible. [00:28:49] Speaker 04: Understood. [00:28:49] Speaker 04: But I think that the reference is there. [00:28:51] Speaker 04: Again, I hate to sort of tell the panel what the panel meant. [00:28:55] Speaker 04: But what I recall from Ratigan, too, is laying for his OIO supervisors is sort of the repeated refrain that is made. [00:29:02] Speaker 04: And what I do know is that we didn't talk about employer vicarious liability here in the prior appeal because it was submitted to the jury on a different theory, on the theory that it was the security division's investigation that caused Mr. Ratigan's harms here. [00:29:21] Speaker 04: So that's one path that the court could affirm on, is that you can only be held liable for the acts of supervisors. [00:29:32] Speaker 04: That's sort of standard. [00:29:33] Speaker 01: But you don't even have to go that far, because you've also argued that Layton had no retaliatory motive. [00:29:41] Speaker 04: That's correct, Your Honor. [00:29:41] Speaker 04: Thank you. [00:29:42] Speaker 04: And that's exactly what I was getting to, is that you could [00:29:44] Speaker 04: sort of put that aside, leaving aside the waiver point or the fact that we think we're right on the vicarious liability principles, and you could find quite properly that nobody did anything and reported anything that was knowingly false. [00:29:56] Speaker 04: You heard remarkably little from the other side. [00:30:00] Speaker 02: That requires agreeing that discovery wasn't in order, right? [00:30:04] Speaker 02: And the panel said that because people didn't know the standard was going to be knowingly false, there was room for discovery. [00:30:13] Speaker 02: So you can't now say they have no evidence of knowingly false. [00:30:18] Speaker 02: And they weren't entitled to any discovery of knowingly false. [00:30:23] Speaker 04: Again, what the panel said, I think, at the end of Radigan 2, is the district court's going to be the gatekeeper, having sat on this case for a very long time, and decide whether there is any necessary discovery. [00:30:34] Speaker 04: And what happened when they went back to district court is you had to... It doesn't quite say that. [00:30:39] Speaker 02: It says, Radigan had little reason to thoroughly develop evidence of knowingly falsity. [00:30:45] Speaker 02: 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. [00:30:58] Speaker 02: That doesn't mean that it's up to the district court to decide. [00:31:01] Speaker 02: It sounds, once again, that the panel has decided that they didn't have an opportunity to develop evidence of knowing falsity. [00:31:10] Speaker 02: So they were going to be permitted to do necessary discovery to find. [00:31:15] Speaker 04: i agree that's the panel certainly open possibility that there would be some i do not think the panel was directing the district court to i don't think that sense is fairly bad as directing the district what if you can't discover if we accept that the panel said that he had little reason to thoroughly develop evidence of knowing falsity of the district court [00:31:33] Speaker 02: Why wasn't it an abuse of discretion for the district court to let them try to develop evidence of no evidence? [00:31:40] Speaker 04: For the standard reasons that whenever you're asking for discovery, you have to show what it is that you need. [00:31:44] Speaker 04: And what you got with the presentation in district court, what you got was an attempt similar to what you got in this court just now to re-litigate all the same issues, the issues that this panel sort of foreclosed, the wearing of the Saudi garb. [00:31:57] Speaker 04: the, you know, making himself only reachable through the Mabahid, the participation of the Hajj, all those things. [00:32:03] Speaker 04: And that was what was presented to the district court as what he wanted in discovery. [00:32:09] Speaker 04: And the district court got frustrated with that and said, okay, I'm going to, you know, do this on summary judgment and you can file a Rule 56D affidavit. [00:32:16] Speaker 04: and explain to me what you need. [00:32:17] Speaker 04: And the district court, again, you know, exercising the role assigned to it by this court, the district court was, as this court said in its decisions, in the best position to decide whether the plaintiff's claims could proceed. [00:32:32] Speaker 04: The prior decisions are replete with references to the fact that the district court is going to be in the best position to determine [00:32:40] Speaker 04: and to weed out claims that would, you know, not be able to recede without running a foul of Egan. [00:32:45] Speaker 04: The district would also, of course, have the independent grounds that, Judge Garland, as you pointed out, that there was, you know, an answer. [00:32:51] Speaker 02: I'm stuck on the discovery issue for a minute. [00:32:57] Speaker 02: It says it in the 56-D affidavit, [00:33:03] Speaker 02: The plaintiff asked for additional discovery about the interactions that took place among the five of them. [00:33:09] Speaker 02: The process that led to the creation of the EC was never the focus of discovery that was completed before the first trial. [00:33:17] Speaker 02: Now, the district court didn't say it was rejecting it for that reason, did it? [00:33:22] Speaker 02: What was the reason that the district court gave for rejecting the discovery? [00:33:27] Speaker 04: Primarily, it was that there wasn't anything sufficiently identified. [00:33:31] Speaker 02: I mean, again, it was... Well, they want interactions between these people, obviously on the hope that there will be some statements about knowing falsity in there. [00:33:42] Speaker 02: That doesn't seem on its face like unlike and impossible. [00:33:47] Speaker 04: Well, a lot of discovery had already occurred, and the district court was well aware of that. [00:33:51] Speaker 04: In fact, a trial had occurred. [00:33:52] Speaker 04: This is not one of these cases where the plaintiff has been cut off at the knees, and it's a black box as to what happened. [00:33:59] Speaker 04: There was discovery. [00:34:00] Speaker 04: There was a multi-day trial in this case. [00:34:03] Speaker 02: The district court was aware of that. [00:34:04] Speaker 02: But the prior panel said the district court had to keep in mind [00:34:07] Speaker 02: that this was not the standard at the time of the previous discovery. [00:34:11] Speaker 02: So how did the district court do that? [00:34:14] Speaker 04: The district court, again, as I was trying to explain before, was frustrated, I think, with plaintiffs' counsel for coming in and trying to re-litigate a lot of the same issues and not basically focusing in on the issues about the nurses being used as a euphemism for prostitutes and the wild parties at Mr. Radigan's house. [00:34:33] Speaker 02: That's not what the court said. [00:34:35] Speaker 02: The court's explanation [00:34:37] Speaker 02: which is one paragraph on page 631 of the appendix is, first concerning supervisory liability, plaintiff testified at his deposition at trial that, I'm sorry, how does the guy with the P, how do you pronounce his name? [00:34:51] Speaker 02: I've been saying Pismuka. [00:34:54] Speaker 02: Was his supervisor and that Leighton was not? [00:34:56] Speaker 02: He further testified that Sesmukha did not know the truth and that he had the opportunity and incentive to explore what he knew or did not know during prior discovery and trial. [00:35:08] Speaker 02: But this court said that he didn't, that they didn't have the incentive to do that. [00:35:14] Speaker 02: So is that consistent with what we told the district court? [00:35:17] Speaker 04: I think it is, Your Honor. [00:35:19] Speaker 04: Again, the District Court, there are many references in this Court's prior opinions to the District Court being the one in the best position to understand what has transpired before and to understand how the claim might run afoul of Egan. [00:35:35] Speaker 04: And again, keep in mind that you're here on a very limited inquiry into knowing falsity. [00:35:43] Speaker 04: And there just wasn't any focus, any specific focus as required under Rule 56D on those sorts of things. [00:35:52] Speaker 04: Instead, there was an attempt to re-litigate what people knew or should have known. [00:35:56] Speaker 04: There was an attempt to sort of present a collusion theory when the actual inquiry is what an employee actually knew was false at the time. [00:36:04] Speaker 04: So the district court [00:36:05] Speaker 04: Again, exercising the role that this court said it was supposed to do, you know, understood that there wasn't anything more that could be gained by discovery, and essentially said enough is enough here. [00:36:18] Speaker 02: Any further questions from the panel? [00:36:21] Speaker 02: We have one minute and 18 seconds. [00:36:23] Speaker 04: It seems to me that the panel understands our position, so I'm happy to sit down. [00:36:27] Speaker 04: Thank you, Your Honor. [00:36:29] Speaker 02: All right, does the other side have any time? [00:36:31] Speaker 02: All right, we'll give you one minute. [00:36:35] Speaker 05: First of all, this case was never about whether it was a security investigation that caused harm. [00:36:44] Speaker 02: Let me just ask, what was it that you were seeking in discovery that the second panel entitled you to? [00:36:52] Speaker 05: Well, I think you got to it. [00:36:55] Speaker 05: I think there were certainly, there were [00:37:00] Speaker 05: In order to, if the employer here, which we believe the employer was not late and the employer was OIO management, if the employer, if we're testing whether the information the employer had was knowingly false, [00:37:15] Speaker 05: which we didn't explore. [00:37:17] Speaker 02: What was the kind of discovery you were asking for that would allow you to do that? [00:37:20] Speaker 05: To do further depositions of Short, of Walt Smith, but we never did the deposition of Walt Smith. [00:37:26] Speaker 02: What were you planning to ask? [00:37:28] Speaker 02: Did you know that all the statements here were false? [00:37:32] Speaker 02: Do you have another question other than that? [00:37:34] Speaker 02: You don't expect them to answer yes to that. [00:37:36] Speaker 05: Well, what did you know? [00:37:37] Speaker 05: And there is documentary, well, I don't know. [00:37:41] Speaker 05: There's some stuff that there's documentary evidence showing that it clearly was false for those things that... That's evidence you already have. [00:37:50] Speaker 05: Right, but I would certainly like the opportunity to ask that person if he's going to come in and lie, that's important information. [00:38:00] Speaker 05: I would just say I appreciate the court's time. [00:38:06] Speaker 05: It can't be the case that any truthful allegations in a referral means that the case becomes non-justiciable, which is what the government's argument is. [00:38:20] Speaker 05: I think the juries often have to parse out facts. [00:38:23] Speaker 05: The most important facts here were in dispute, whether there was foreign influence. [00:38:27] Speaker 05: That is the most important fact here. [00:38:30] Speaker 05: And the panel in Ranagan 2 said, that's clearly a dispute, that there was [00:38:36] Speaker 05: whether there was foreign influence by him having parties with prostitutes and the nurses were really a euphemism for prostitutes. [00:38:47] Speaker 05: That clearly was enough evidence, we believe, to get to a jury. [00:38:53] Speaker 05: Unless there's any other questions, I'll rely on it. [00:39:00] Speaker 02: Hearing none, we'll take the matter under submission. [00:39:02] Speaker 02: Thank you both.