UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARCELA M. BODKIN,
Plaintiff-Appellant,

v.
                                                                    No. 95-2853
TOGO D. WEST, JR., Secretary of the
Army,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Robert R. Merhige, Jr., Senior District Judge.
(CA-95-1070-A)

Submitted: June 18, 1996

Decided: July 22, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Leroy T. Jenkins, Jr., Washington, D.C., for Appellant. Frank W.
Hunger, Assistant Attorney General, Helen F. Fahey, United States
Attorney, Barbara L. Herwig, Freddi Lipstein, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Marcela M. Bodkin appeals the district court's order granting
Appellee's motion to dismiss for lack of subject matter jurisdiction,
pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
This panel has already granted Bodkin's motion to submit this case
on the briefs. Finding no reversible error, we affirm.

Bodkin held a temporary one-year appointment as a security spe-
cialist with the United States Army Southern Command in the Repub-
lic of Panama from June 11, 1990, to September 30, 1991. She
received a security clearance on July 5, 1990. On August 22, 1990,
Bodkin's access to classified information was suspended pending
investigation of information that she was involved in homosexual
activity, participated in the use, possession, transportation or traffick-
ing of illegal drugs, and failed to report contacts with members of a
criteria country. For the duration of her temporary appointment, Bod-
kin was assigned to duties that did not require access to classified
information and her position was allowed to expire.

Bodkin filed this action alleging discrimination on the basis of race
in the processing of information leading to the suspension of her
security clearance by the United States Army, in violation of Title VII
of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. §§ 2000e
to 2000e-16 (West 1994 & Supp. 1996). In her initial complaint Bod-
kin asserted that the United States Army racially discriminated
against her by processing the adverse information about her, by
divesting her of her security clearance, and by failing to take the same
actions against similarly situated white employees. Bodkin, however,
narrowed her claim in her response to Defendant's motion to dismiss
to that of discrimination in the processing of source information prior
to the taking of any action regarding her security clearance. (J.A. 23).
During oral argument before the district court, Bodkin's counsel reit-

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erated that the claim was one of discriminatory processing of informa-
tion, rather than one of discriminatory investigation or discriminatory
suspension of access to classified documents. (Supp. App. 11-12).

The district court granted Defendant's motion to dismiss for lack
of subject matter jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(1), on
the grounds that discriminatory processing is essentially information
processing, which is merely a step in the decision-making process and
not an ultimate employment decision protected under Title VII. The
court noted in its reasoning that had Bodkin asked the court to review
the suspension of her security clearance, such review would be barred
under Department of Navy v. Egan, 484 U.S. 518, 529 (1988), in
which the Supreme Court held that non-expert bodies are institution-
ally incompetent to second-guess the substantive judgment of whether
to deny or revoke a security clearance. The district court also noted
that judicial review of discriminatory processing outside of Title VII
would also be barred as it is "part and parcel of the same security
clearance determination."

On appeal, Bodkin argues that the district court had jurisdiction to
review the discriminatory processing of information. Bodkin, how-
ever, does not argue that the discriminatory processing is an ultimate
employment decision that would be protected under Title VII. See
Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S.
892 (1981). Rather, Bodkin argues that the suspension of her security
clearance, rather than the discriminatory processing, constituted the
ultimate employment decision cognizable under Title VII. Because
this claim was not raised before the district court, it is not properly
before us on appeal. See, e.g., United States v. Banisard Bldg. Joint
Venture, 65 F.3d 374, 379 (4th Cir. 1995). Regardless, even if this
claim had been preserved for appeal, it is meritless. As the district
court noted below, review under Title VII of the suspension of a
security clearance is barred under Egan. See Guillot v. Garrett, 970
F.2d 1320, 1325 (4th Cir. 1992) (finding no authorization in Civil
Rights Act of 1964 for federal appellate courts to review Executive's
security clearance decisions).

Finding no error in the district court judgment, we affirm.

AFFIRMED

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