ELLEN SEGAL HUVELLE, District Judge.
FBI agent Wilfred Rattigan filed suit alleging discrimination based on race, national origin, and religion; retaliation; and hostile work environment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). After extensive motions practice, a single retaliation claim remained. Following a jury verdict in plaintiff's favor on that retaliation claim, defendant appealed arguing that "plaintiff's claim [wa]s nonjusticiable under Supreme Court and D.C. Circuit case law...." See Rattigan v. Holder, 643 F.3d 975, 977 (D.C. Cir. 2011) (" Rattigan I "). The Court of Appeals vacated and remanded the case. Following rehearing, the Court of Appeals affirmed its decision to vacate and remand, but narrowed its ruling on the legal standard. See Rattigan v. Holder, 689 F.3d 764, 773 (D.C. Cir. 2012) (" Rattigan II ").
The defendant has now filed a motion for summary judgment. ( See Def.'s Mem. of P. & A. in Supp. of Mot. for Summ. J. ("Mot.") [ECF No. 146-1].) Plaintiff opposes this motion, or in the alternative, seeks additional discovery pursuant to Fed.R.Civ.P. 56(d). (Pl.'s Mem. of Law in Opp'n to Def.'s Post-Appeal Mot. for Summ. J. ("Opp.") [ECF No. 150].) At this juncture, the Court must decide whether to: (1) grant defendant's motion for summary judgment, (2) deny defendant's motion for summary judgment and proceed to trial, or (3) permit further discovery prior to ruling on defendant's motion for summary judgment. Based on a thorough examination of the record and for the reasons stated below, the Court concludes that Rattigan's case cannot go forward without putting the jury in the position of second-guessing the Security Division's decision to initiate an investigation, and therefore, summary judgment will be granted.
The material facts relevant to this case were described in detail in this Court's prior opinions and the two opinions of the Court of Appeals. Rattigan v. Gonzales, 503 F.Supp.2d 56, 62-65 (D.D.C. 2007); Rattigan v. Holder, 604 F.Supp.2d 33, 37-45 (D.D.C. 2009); Rattigan v. Holder, 636 F.Supp.2d 89, 90-91 (D.D.C. 2009); Rattigan I, 643 F.3d at 965-68; Rattigan II, 689 F.3d at 765-67. Therefore, an abbreviated version of the facts focused primarily on plaintiff's remaining retaliation claim will suffice.
In 1999, the FBI assigned Rattigan to the Office of the Legal Attache at the United States Embassy in Riyadh, Saudi Arabia. Rattigan, 604 F.Supp.2d at 38. He served there until July 2003, first as an Assistant Legal Attache and then as a Legal Attache. Id. During this time, Rattigan-who is a black male of Jamaican decent and convert to Islam-participated in the Muslim holy pilgrimage to Mecca known as the Hajj. Id. at 42. After Rattigan was promoted to the position of Legal Attache, his immediate supervisor was Cary Gleicher, a Unit Chief in the FBI's Office of International Operations ("OIO"). Rattigan I, 643 F.3d at 978. Gleicher's supervisor was Michael Pyszcymuka, an OIO Section Chief, and Pyszcymuka's supervisor was Leslie Kaciban, Deputy Assistant Director of OIO. Id. In October 2001, Rattigan filed a report with the Equal Employment Opportunity (EEO) Office for discrimination based on race and national origin. Id.
In late November 2001, Cary Gleicher assigned Donovan Leighton to a temporary detail in the Riyadh Office of the Legal Attache. During his brief tenure in Riyadh, Leighton "became concerned about Rattigan's behavior and management of the office." Id. Upon returning to Washington, Leighton was assigned to be an interim desk officer for the legal attache offices in Pakistan and the Middle East, including the Riyadh office. During this time, Leighton's interactions with Rattigan heightened his suspicions, "especially given the importance of Rattigan's office to the FBI's mission in light of the September 11, 2001 terrorist attacks." Id.
Leighton voiced his worries to Gleicher who told him to bring them to Pyszcymuka's attention. ( See 7/24/2009 AM Trial Tr. at 36.) Pyszcymuka then met with Leighton for between an hour and an hour and fifteen minutes. ( See 7/27/2009 PM Trial Tr. at 60.) During this conversation, Pyszcymuka did not ask Leighton if he had proof of his allegations. ( Id. ) In late January 2002, Leighton began drafting an internal FBI memorandum (referred to as an "EC" or electronic communication) detailing his concerns. Rattigan I, 643 F.3d at 978. In March 2002, Leighton completed a draft of the EC and gave it to Pyszcymuka. Id. at 979. Pyszcymuka forwarded this draft to his assistant, Walter Smith, for his review. ( See Pl.'s Trial Ex. 17.) After reviewing the document, Smith returned the draft to Pyszcymuka with handwritten comments, as well as a note explaining to Pyszcymuka that "the EC... is much too long, and in some cases, inflammatory and unsupported by fact-innuendo, hearsay, etc.... [T]here are a number of issues within, other than management. First and foremost, the allegation of fraternizations with FNs [Foreign Nationals] and sexual relations with the same." Id. Pyszcymuka returned the draft to Leighton with Smith's comments, as well as a note instructing him to "[p]lease review the Draft E.C. and... [l]et's focus on management matters and potential security concerns that may exist in Riyadh." ( See Pl.'s Trial Ex. 18.) After making corrections to the document, Leighton gave the final eighteen-page EC to Pyszcymuka. Pyszcymuka referred the document directly to the Security Division on April 12, 2002, without independently investigating its accuracy. ( See Pl.'s Trial Ex. 20; 7/27/2009 PM Trial Tr. at 20.) Plaintiff conceded in his deposition and at trial that Pyszcymuka had no first-hand knowledge of the facts in the EC and that Pyszcymuka believed the allegations in the EC to be true. ( See 7/27/2009 PM Trial Tr. at 20; Def.'s Ex. J, Rattigan Dep., Dec. 7, 2007, at 195.)
The primary allegations in the EC were that: (1) Rattigan wore traditional Saudi attire to the office which he had received as a gift from the Saudi security service (the Mabahith); (2) Rattigan's Mabahith colleagues attempted to identify a "suitable wife" for him; (3) while participating in the Hajj, Rattigan could only be contacted through Mabahith officers; (4) Rattigan was inattentive to the FBI's investigations of the September 11 attacks; (5) Rattigan hosted wild parties attended by other agents which included "nurses, " a term that "might have be[en] used by... Rattigan as a euphemism for prostitutes'"; (6) Rattigan refused to allow temporary special agents to contact the Mabahith directly. See Rattigan I, 643 F.3d at 978-79.
After reviewing the EC, Edward Shubert of the Security Division authorized a security investigation. Id. at 979. Shubert testified at trial that the primary reasons for commencing this investigation were "undue foreign influence" and "personal conduct." (7/27/2009 AM Trial Tr. at 31.) At the conclusion of the investigation, the Security Division determined that Rattigan presented "no security risk... [resulting from] allegiance, foreign influence, or personal conduct...." Rattigan I, 643 F.3d at 979.
II. PROCEDURAL HISTORY
A. District Court
Over the course of this prolonged litigation, the Court has issued three opinions dismissing or granting summary judgment on all of plaintiff's claims except 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." Id. (internal quotation marks and citation omitted). On the eve of trial, defendant moved to dismiss the case on the ground that the district court lacked the authority to adjudicate this claim because it impermissibly called into question the Security Division's decision to investigate Rattigan. This Court denied that motion. Rattigan, 636 F.Supp.2d at 95.
The Court then conducted a seven-day jury trial. After deliberations, the jury returned a verdict for the plaintiff. The jury specifically found that (1) plaintiff had "proven by a preponderance of the evidence that the initiation of the investigation by the FBI's Security Division was a materially adverse action" and (2) "the reason that defendant initiated the FBI's Security Division Investigation was to retaliate against plaintiff for having engaged in protected activity...." ( See Verdict Form [ECF No. 108].) The jury awarded plaintiff $400, 000 in compensatory damages. Id. This Court denied the government's post-trial motions. (Order, Nov. 16, 2013 [ECF No. 124]). The government appealed on justiciability grounds.
B. Rattigan I
On June 3, 2011, in a two-to-one panel decision, the Court of Appeals vacated the district court judgment and remanded the case for further proceedings. Rattigan I, 643 F.3d at 989. Specifically, the Court of Appeals held that the jury's decision violated the Supreme Court's holding in Department of the Navy v. Egan, 484 U.S. 518 (1988). 643 F.3d at 984-85. In Egan, the Court held that only the Executive Branch has the 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. at 527. Since this decision, the D.C. Circuit and other circuits have held 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.'" Rattigan I, 643 F.3d at 981 (quoting Ryan v. Reno, 168 F.3d 520, 523 (D.C. Cir. 1999)).
Based on Egan and its progeny, the Court of Appeals held that "the district court's evidentiary rulings, jury instruction, and verdict form" impermissibly placed the jury in the position of second-guessing the Security Division's decision to investigate Rattigan. Id. at 985. In the Court of Appeal's words, "the district court expressly recognized that Security Division Section Chief Edward Shubert had become the relevant decision maker'" and the jury instructions and verdict form impermissibly "invited" the jury to "look into Shubert's decision-making process and assess his reasons for authorizing the investigation." Id.
Yet, the Court of Appeals refused to dismiss the case. Instead, the Court held that the referral itself could constitute a materially adverse action. In order to succeed on such a claim, the Court held that plaintiff would need to show that the reasons proffered by the government for the referral were pretextual. Id. at 988 ("[T]he 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.") In other words, a jury would need to conclude that defendant knew or should have known that the information in the referral was false. The Court of Appeals then left it to this Court to decide whether "Rattigan's case c[ould] go forward without putting the jury in the position of second-guessing the Security Division." Id. at 989.
C. Rattigan II
Following Rattigan I, the government filed for rehearing and rehearing en banc. On September 13, 2011, the Court of Appeals granted the motion for rehearing. After additional argument, the Court of Appeals affirmed its earlier opinion (with Judge Kavanaugh again dissenting) on narrower grounds. Rattigan II, 689 F.3d at 773. The Court held that it was not sufficient for a jury to find that the stated reasons for the referral were pretextual. Rather, the defendant would only be liable for retaliation if a jury determined that a relevant actor referred knowing falsities to the Security Division. Id. at 770. In reaching this conclusion, the Court emphasized that its prior decision could discourage critical reporting "by permitting jurors to infer pretext based on their own judgments that the information reported was either unlikely to prove true or raised ...