United States Court of Appeals 

For the Seventh Circuit 

Chicago, Illinois 60604 

Submitted December 22, 2015*

Decided January 6, 2016 

Before 

DIANE P. WOOD, Chief Judge 

JOEL M. FLAUM, Circuit Judge 

DANIEL A. MANION, Circuit Judge

No. 15-1465 

TERRY WHITNEY, 

Plaintiff-Appellant, 

v. 

ASHTON B. CARTER, Secretary of Defense,

 Defendant-Appellee.

 Appeal from the United States District 

Court for the Southern District of 

Indiana, Indianapolis Division. 

No. 1:14-cv-01598-RLY-TAB 

Richard L. Young, 

Chief Judge. 

O R D E R 

 Terry Whitney, a former Accounting Technician at the United States Department 

of Defense, appeals the district court’s dismissal of his employment-discrimination suit. 

Whitney alleges that the agency discriminated against him on the basis of his race, age, 

gender, and sexual orientation when it found him ineligible to hold a “sensitive” defense 

 

*

 After examining the briefs and record, we have concluded that oral argument is 

unnecessary. Thus the appeal is submitted on the briefs and record. See FED. R. APP. P.

34(a)(2)(C). Furthermore because discrimination suits must name the head of the agency 

that allegedly discriminated against the plaintiff, see, e.g., 42 U.S.C. § 2000e-16(c), we 

have reformed the caption. 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 
No. 15-1465 Page 2 

position and removed him from the job. The district court reasoned that it may not 

review a federal agency’s decision to refuse to employ someone in a position designated 

as “sensitive.” Because its conclusion is correct, we affirm the judgment. 

 The Department’s decision to remove Whitney is beyond judicial review. The 

agency told him that, because of his credit history, he was ineligible to occupy a 

“non-critical sensitive” position. Occupying a “sensitive” position is parallel to holding a 

security clearance. See Kaplan v. Conyers, 733 F.3d 1148, 1159, 1166 (Fed. Cir. 2013) 

(en banc). And the Supreme Court has held that the decision to grant or revoke a 

security clearance is a “sensitive and inherently discretionary judgment call” committed 

exclusively to the executive branch. Dep’t of Navy v. Egan, 484 U.S. 518, 527 (1988). Courts 

therefore may not review an executive agency’s decision to fire a person who is ineligible 

for a security clearance. See El-Ganayni v. Dep’t of Energy, 591 F.3d 176, 182 (3rd Cir. 2010); 

Hall v. Dep’t of Labor, 476 F.3d 847, 853 (10th Cir. 2007); Bennett v. Chertoff, 425 F.3d 999, 

1001 (D.C. Cir. 2005). 

 Under Egan, we cannot review Whitney’s employment-discrimination claim. 

Doing so would violate the requirement of judicial deference to the broad discretion of 

an agency that bears responsibility for the protection of classified information 

committed to its custody, including determining who may have access to it. Egan, 484 

U.S. at 529. To examine a claim that an agency’s eligibility decision was improperly 

motivated, a court would have to review the actual reason for the decision, which Egan 

forbids. See Hall, 476 F.3d at 853 (“To review the circumstances under which the Army 

recommended revocation of [plaintiff’s] security clearance for evidence of retaliation is 

to review the basis of the determination itself, regardless of how the issue is 

characterized.”); El-Ganayni, 591 F.3d at 186 (adjudicating discrimination claims “would 

inevitably involve scrutiny of the merits of the” security clearance determination); Hill v. 

White, 321 F.3d 1334, 1335–36 (11th Cir. 2003); Ryan v. Reno, 168 F.3d 520, 523 (D.C. 

Cir. 1999). In this case, Whitney does not deny that the position he seeks is sensitive. Nor 

does he develop any cogent argument that Conyers wrongly extended Egan from 

“security” clearances to “sensitive” positions. Because his suit challenges his ineligibility 

for one of these positions, it “is beyond judicial review.” El-Ganayni, 591 F.3d at 186. 

AFFIRMED.