The U.S. Court of Appeals for the Seventh Circuit has affirmed the dismissal of a lawsuit brought by a man who claimed his job offer from the Department of Homeland Security was rescinded as an act of retaliation. The court ruled that the judiciary cannot second-guess the government’s reasons for withholding or delaying security clearances.
Dored Shiba, a former employee of U.S. Citizenship and Immigration Services (USCIS), sued the Secretary of Homeland Security after a 2019 job offer for a citizenship and immigration assistant position was withdrawn.
Shiba had been tentatively selected for the role, but the offer was rescinded after his mandatory background investigation remained unresolved for over a year.
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Shiba alleged that the delay was a pretext for retaliation under the Rehabilitation Act. He argued the department was “blacklisting” him because of his history of filing disability discrimination complaints against the agency during a prior period of employment.
The government moved to dismiss the case, pointing to the 1988 Supreme Court decision in Department of the Navy v. Egan. That landmark ruling established that security clearance decisions are “sensitive and inherently discretionary judgments” committed to the Executive Branch and are generally unreviewable by the courts.
Writing for the Seventh Circuit, Chief Judge Diane S. Sykes agreed that the Egan rule applied.
“Resolving the merits of his claim—and in particular, his claim of pretext—would require the court to second-guess the agency’s reasons for withholding a security clearance,” Sykes wrote. “That’s exactly what Egan prohibits.”
The court addressed a technical legal question regarding whether such cases should be dismissed for a lack of “subject-matter jurisdiction” or on the merits of the case. The judges concluded that while courts have the power to hear these cases, they must show “mandatory deference” to the Executive Branch on national security matters, effectively foreclosing the lawsuit.
Shiba had urged the court to follow an exception created by the D.C. Circuit, which allows lawsuits if they are based on “knowingly false” security reports. However, the Seventh Circuit declined to adopt that exception, noting that Shiba’s current lawsuit focused on the 2019 job rescission rather than the specific 2011 referral he claimed was false.
The court noted that Shiba’s background investigation had uncovered other issues, including findings that he had previously lied on an employment application by failing to disclose he had resigned from a different federal job to avoid being fired.
Ultimately, the court ruled that whether an agency denies a clearance outright or allows the process to stall indefinitely, the decision remains immune from judicial oversight. The ruling modifies the previous district court judgment to a dismissal on the merits, officially ending Shiba’s bid to reinstate the retaliation claim.
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