                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                              Submitted December 22, 2015*
                                Decided January 7, 2016

                                         Before

                            DIANE P. WOOD, Chief Judge

                            JOEL M. FLAUM, Circuit Judge

                            DANIEL A. MANION, Circuit Judge

No. 15-1465

TERRY WHITNEY,                                  Appeal from the United States District
     Plaintiff-Appellant,                       Court for the Southern District of
                                                Indiana, Indianapolis Division.
      v.
                                                No. 1:14-cv-01598-RLY-TAB
ASHTON B. CARTER, Secretary of Defense,
    Defendant-Appellee.                         Richard L. Young,
                                                Chief Judge.

                                       ORDER

       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.
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.
