# 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

J OEL 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 Tec hnician at the United States Department of Defense, appeals the district court’s dism issal 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 F ED

. R. A PP

. P. 34(a)(2)(C). Furthermore becaus e 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 NONPRECEDENTIAL DISPOSITION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 onl y in accordance with Fed. R. A pp . P. 32.1No. 15-1465 Page 2

position and removed him from the job. The district court reasoned that it may not review a federal agency’s decisi on to refuse to employ someon e 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 inhere ntly 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 de cision 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 ju dicial deference to the broad discretion of an agency that bears responsibility for th e 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 ag ency’s eligibility decision was improperly
motivated, a court would have to review th e 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] securi ty 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 th at 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.