Shiba v. Mullin - Security Clearance Retaliation Claim Barred by Egan Doctrine

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April 23, 2026 Get Citation Alerts Download PDF Add Note

Dored Shiba v. Markwayne Mullin

Court of Appeals for the Seventh Circuit

• Citations: None known
• Docket Number: 23-2304

• Judges: Sykes

• Opinion

• Authorities (35)

• Cited By (0)

• Summaries (0)

• Similar Cases (14.3K)

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Combined Opinion

by Diane S. Sykes

In the

United States Court of Appeals
for the Seventh Circuit

No. 23-2304
DORED SHIBA,
Plaintiff-Appellant,
v.

MARKWAYNE MULLIN,
Secretary of Homeland Security, *
Defendant-Appellee.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 22 C 2357 — Matthew F. Kennelly, Judge.

ARGUED MARCH 5, 2024 — DECIDED APRIL 23, 2026

Before SYKES, LEE, and KOLAR, Circuit Judges.
SYKES, Circuit Judge. Dored Shiba applied for a position as
a citizenship and immigration assistant with the United States
Citizenship and Immigration Services (“USCIS”) and was ten-
tatively selected for appointment. The job required a security

• We have substituted Markwayne Mullin, the current Secretary of Home-

land Security. See FED. R. APP. P. 43(c)(2).
2 No. 23-2304

clearance, but Shiba’s background investigation stalled when
the agency discovered serious issues that required further in-
quiry. When the security concerns remained unresolved for
more than a year, the agency rescinded its offer.
Shiba sued the Secretary of Homeland Security alleging
that the stalled investigation was not attributable to legitimate
security concerns but instead was a pretext for retaliation in
violation of the Rehabilitation Act. He claimed that the
Department of Homeland Security had blacklisted him from
federal employment based on his prior complaints and litiga-
tion accusing the agency of disability discrimination during a
previous period of employment.
The Secretary moved to dismiss the suit under the
Supreme Court’s decision in Department of the Navy v. Egan,
484 U.S. 518 (1988). Egan held that security-clearance deci-
sions, which involve sensitive and inherently discretionary
judgments on matters of national security, are committed to
the Executive Branch and are unreviewable by the courts.
484 U.S. at 527–30. The district judge agreed that Egan barred
Shiba’s suit and dismissed the case for lack of subject-matter
jurisdiction.
On appeal the parties devote most of their attention to the
scope of Egan’s limitation on judicial review—i.e., whether it
applies to Shiba’s case. But there is an antecedent question
about the nature of the Egan rule: Is it a limit on the court’s
subject-matter jurisdiction—as the district judge held and the
parties have assumed—or instead a nonjurisdictional limit on
judicial review of claims that fall within its scope?
Egan is best understood in the latter sense. As a rule of
mandatory deference to the Executive Branch’s security-
No. 23-2304 3

clearance decisions, Egan functionally forecloses judicial
review of claims within its reach. But it does not affect the
court’s adjudicative power.
Returning to the scope of the Egan rule, we conclude that
Shiba’s retaliation claim falls within it. 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. That’s exactly what Egan
prohibits. We therefore modify the district court’s judgment
to reflect a merits-based dismissal rather than a jurisdictional
dismissal. As modified, we affirm the judgment.
I. Background
This case comes to us at the pleading stage, so we take the
following factual account from Shiba’s complaint, accepting
his allegations as true for present purposes. 1 Shiba’s employ-
ment with the Department of Homeland Security began in
April 2007 when he was hired as an Immigration Information
Officer and assigned to the USCIS field office in Chicago. Two
months later he suffered an on-the-job injury that left him un-
able to work, so he took unpaid medical leave. By June 2010—
that is, three years later—his injury had still not fully resolved
and he remained unable to work, so the agency fired him.
Shiba challenged the termination before the Merit Systems
Protection Board, which handles federal personnel disputes.
See 5 U.S.C. §§ 7513, 7701. The Board ordered the agency to
permit him to return to work with restrictions to accommo-
date his injury.

1 A few aspects of this factual account appear in Shiba’s appellate briefs.

We include them because they are consistent with the pleadings. Phillips
v. Prudential Ins. Co. of Am., 714 F.3d 1017, 1020 (7th Cir. 2013).
4 No. 23-2304

Almost immediately, Shiba suffered a recurrence of his
original injury, which prompted yet another period of unpaid
leave. In 2011, while he was still on leave, Ruth Dorochoff, the
District Director of the USCIS in Chicago, referred him to the
Office of Inspector General (“OIG”) for investigation. She ac-
cused Shiba of accepting improper gratuities for representing
refugees before the United Nations Refugee Agency.
After a two-year investigation, the Inspector General was
unable to substantiate Dorochoff’s allegations that Shiba had
accepted prohibited private compensation while employed
by the USCIS. But the investigators found at least two other
rules violations. First, Shiba had impermissibly leveraged his
federal position when contacting the Refugee Agency to in-
quire about the status of Iraqi refugees. And second, he lied
on his employment application: He represented that he had
never been fired from another job, when in fact he had
resigned from prior employment at the Social Security
Administration to avert his impending termination. In
August 2014 the USCIS fired Shiba, saying only that he served
“at the pleasure” of the agency.
Three years later, in June 2017, Shiba sought reemploy-
ment with the Department—this time as an officer with
Immigration and Customs Enforcement. Although he was
tentatively selected for the position, his background check
dragged on for almost a year without successful completion,
so the agency rescinded its offer. Blaming the stalled back-
ground check on the Inspector General’s investigation, Shiba
sued the Secretary of Homeland Security alleging that his
2014 discharge and the rescission of his subsequent job offer
were motivated by disability discrimination. That suit was
No. 23-2304 5

resolved in the Secretary’s favor at summary judgment, and
Shiba’s appeal is under advisement.
In July 2019 Shiba again applied for a position with the
Department, this time as a citizenship and immigration assis-
tant in the USCIS Asylum Office in Chicago. He again was
tentatively selected, but the job requires a security clearance,
so the agency initiated a background investigation. See Exec.
Order No. 12,968, 60 Fed. Reg. 40245 (Aug. 2, 1995). Like
Shiba’s previous background check, this investigation also
stalled: The USCIS Personnel Security Division discovered se-
rious issues that jeopardized his clearance. Investigators also
learned that another agency had a background check in pro-
gress, so they decided to wait until that investigation was
complete. When a year passed without the issuance of a secu-
rity clearance, the USCIS rescinded its job offer.
Shiba filed a complaint with the Equal Employment
Opportunity Commission and eventually initiated a second
lawsuit against the Secretary of Homeland Security alleging
that the Department delayed his security clearance in retalia-
tion for his protected activity—namely, his 2010 administra-
tive complaint with the Merit Systems Protection Board and
his first lawsuit alleging disability discrimination. This sec-
ond suit raised a retaliation claim under the Rehabilitation
Act, 29 U.S.C. §§ 701 et seq.
The Secretary moved to dismiss the suit for lack of subject-
matter jurisdiction, see FED. R. CIV. P. 12(b)(1), arguing that
Shiba’s retaliation claim was barred by the Supreme Court’s
decision in Egan, which held that decisions regarding security
clearances are committed to the discretion of the Executive
Branch and are not judicially reviewable. 484 U.S. at 529–30.
Because Shiba’s retaliation claim challenged the agency’s
6 No. 23-2304

reasons for withholding his security clearance, the Secretary
argued that the court lacked the power to adjudicate it under
Egan.
Shiba urged the court not to apply the Egan rule because
his claim includes allegations that Dorochoff’s referral to the
OIG was knowingly false. As support for this argument, he
relied on the D.C. Circuit’s divided decision in Rattigan v.
Holder, which carved out an exception to Egan for what the
court called “reporting and referral claims.” 689 F.3d 764, 770
(D.C. Cir. 2012). More specifically, the majority in Rattigan
held that an employment-discrimination claim premised on
allegations of a “knowingly false” security report or referral
“can coexist with Egan.” Id.
The district judge declined the invitation to follow the
D.C. Circuit’s reasoning in Rattigan, holding instead that
Shiba’s claim was squarely controlled by Egan’s rule barring
the judiciary from reviewing security-clearance decisions.
The judge accordingly granted the Secretary’s Rule 12(b)(1)
motion and dismissed the suit for lack of subject-matter juris-
diction.
II. Discussion
On appeal Shiba asks us to reinstate his retaliation claim
for two reasons. First, he argues that the Egan rule does not
apply because the USCIS never actually made a security-
clearance decision but instead rescinded its job offer when his
background investigation stalled. Alternatively, he urges us
to follow the D.C. Circuit’s lead in Rattigan and recognize a
“narrow exception” to Egan for employment-discrimination
claims based on allegations of “knowingly false” security re-
ports. He insists that his claim can proceed under a Rattigan-
No. 23-2304 7

like exception. Unsurprisingly, the Secretary defends the dis-
missal of Shiba’s suit, arguing that Egan bars his claim and no
exception applies.
As we’ve noted, the parties overlooked a threshold ques-
tion: whether Egan’s limitation on judicial review—whatever
its scope—deprives the court of subject-matter jurisdiction or
instead forecloses review of the plaintiff’s claim on the merits.
After oral argument, we ordered the parties to submit supple-
mental briefs addressing that question. They complied, and
their filings agree that Egan imposes a jurisdictional limit on
judicial review, though they disagree on the rationale for that
position.
We appreciate the impulse to attach a jurisdictional label
to the rule announced in Egan. As explained below, however,
we read the case differently. The Egan principle, which is an
application of the political-question doctrine, does not limit
the court’s subject-matter jurisdiction. It instead operates as a
rule of finality, or put somewhat differently, as a mandatory
rule of deference to the Executive Branch’s security-clearance
decisions.
The second issue on appeal is whether Shiba’s retaliation
claim falls within the Egan rule. It does. And we’re not in-
clined to create an exception to Egan like the D.C. Circuit’s in
Rattigan. It’s not clear to us that Rattigan is correct, but this
case does not require us to decide. Shiba’s claim is distin-
guishable in any event.
A. Jurisdiction
We begin with the jurisdictional question, and our analy-
sis starts, as it must, with Egan itself. Thomas Egan, the plain-
tiff, was removed from his position as a laborer at the Trident
8 No. 23-2304

Naval Refit Facility after he was denied a required security
clearance. Egan, 484 U.S. at 520. He sought administrative re-
view of the discharge decision in the Merit Systems Protection
Board, which is statutorily authorized to hear the appeals of
federal personnel decisions. Id. at 522; see 5 U.S.C. § 7513 (d).
The full Board—in its version of en banc review—unani-
mously sustained the decision to remove Egan, concluding
that it lacked authority under § 7513 to second-guess the pro-
priety of a security-clearance determination. Egan, 484 U.S. at
524.
In a divided decision, the Federal Circuit reversed. The
majority held that § 7513 entitled Egan to complete review of
the Navy’s removal decision, “including review … of the un-
derlying agency determination to deny a security clearance.”
Id. at 525. Chief Judge Markey dissented, relying heavily on
the constitutional principle of separation of powers. As he ex-
plained, both the Board and the federal courts lack “institu-
tional competence” to review matters of national security, for
which the Constitution assigns primary responsibility to the
Executive Branch. Egan v. Dep’t of the Navy, 802 F.2d 1563,
1580–81 (Fed. Cir. 1986) (Markey, C.J., dissenting).
The Supreme Court granted the Navy’s petition for certi-
orari and essentially vindicated Chief Judge Markey’s dis-
senting view. The Court explained that security-clearance
decisions require “sensitive and inherently discretionary
judgment call[s]” regarding matters of national security—
judgments that are “committed by law to … the Executive
Branch.” Egan, 484 U.S. at 527. By virtue of the President’s role
as “Commander in Chief of the Army and Navy of the United
States,” U.S. CONST. art. II, § 2, the Constitution vests the
Executive with the exclusive authority to “control access to
No. 23-2304 9

information bearing on national security and to determine
whether an individual is sufficiently trustworthy to occupy a
position” that requires access to such information. Egan,
484 U.S. at 527. That authority includes deciding when,
whether, and to whom to grant a security clearance.
As the Court observed, the issuance of a security clearance
requires a predictive judgment about a person’s future behav-
ior and an assessment of the risk that “he might compromise
sensitive information.” Id. at 528. Judgments like these “must
be made by those with the necessary expertise in protecting
classified information”; a “nonexpert body” cannot “review
the substance of such a judgment” or “decide whether the
agency should have been able to make the necessary affirma-
tive prediction with confidence.” Id. at 529. “Nor can such a
body determine what constitutes an acceptable margin of er-
ror in assessing the potential risk.” Id. Accordingly, the
Executive Branch agency tasked with protecting that infor-
mation must have “the final say” in deciding matters related
to security clearances. Id. (quotation omitted).
This finality rule, the Court explained, implements the
“generally accepted view” that foreign policy is “the province
and responsibility of the Executive.” Id. (quotation omitted).
It also accords with the judiciary’s traditional reluctance “to
intrude upon the authority of the Executive in military and
national security affairs.” Id. at 530.
Importantly, Egan does not speak in jurisdictional terms.
Absent from the Court’s opinion is any indication that the
“final say” rule deprives the courts of adjudicative authority
over claims within its scope—or in jurisdiction-speak, impli-
cates the court’s “statutory or constitutional power to
10 No. 23-2304

adjudicate the case.” Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83, 89 (1998).
To be sure, the term “jurisdiction” appears occasionally in
the Court’s opinion. Shiba relies on these references to con-
clude that the Egan rule is jurisdictional. That reliance is mis-
placed. The Court used the term “jurisdiction” only to
describe the structure of the Merit Systems Protection Board
and its statutory authority to review personnel decisions re-
moving, suspending, furloughing, or reducing the pay or
grade of covered federal employees. See, e.g., Egan, 484 U.S. at
530 (explaining that the Board has “jurisdiction to review ‘ad-
verse actions’” limited to those listed above (quoting
§ 7513(d)). And even within this discussion of the
administrative-appeal structure, the Court did not imply—
much less hold—that the Board was divested of statutory au-
thority to review an otherwise qualifying personnel decision
that implicates a security-clearance determination. Quite the
opposite; the Court explained that there was no claim in
Egan’s case that the Board lacked “jurisdiction to hear and ad-
judicate [his] appeal.” Id. at 526.
The Court’s decision was instead rooted in separation-of-
powers principles—and more particularly, the Constitution’s
commitment of sensitive national-security decisions to the
Executive Branch. Egan thus tracks the reasoning of other
cases holding that when a decision is committed by law to the
President’s discretion, judicial review is not available. See
Dalton v. Specter, 511 U.S. 462, 474–76 (1994) (citing cases);
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803) (“Ques-
tions, in their nature political, or which are, by the constitu-
tion and laws, submitted to the executive, can never be made
in this court.”). This is so, the Court has said, because “the
No. 23-2304 11

exercise of [the President’s] discretion” gives rise to no “ques-
tion of law.” United States v. George S. Bush & Co., 310 U.S. 371,
380 (1940). Accordingly, when the Executive resolves a ques-
tion that the Constitution assigns to his discretion, his deci-
sion “is conclusive on the judicial department.” Williams v.
Suffolk Ins. Co., 38 U.S. 415, 420 (1839). It is not “the province”
of the court to determine “whether the executive be right or
wrong”; “[i]t is enough to know[] that in the exercise of his
constitutional functions, he has decided the question.” Id.
Egan’s reasoning situates the “final say” rule squarely
within the modern framework of the Court’s political-
question doctrine, albeit without specifically saying so.
Derived from the constitutional separation of powers, the
political-question doctrine excludes from judicial review cer-
tain questions that “revolve around policy choices and value
determinations constitutionally committed for resolution to
the halls of Congress” or “the confines of the Executive
Branch.” Japan Whaling Ass’n v. Am. Cetacean Soc., 478 U.S. 221,
230 (1986).
In Baker v. Carr, the seminal decision synthesizing the
modern version of the doctrine, the Court defined a political
question according to these six canonical factors:
[1] a textually demonstrable constitutional com-
mitment of the issue to a coordinate political de-
partment; [2] a lack of judicially discoverable
and manageable standards for resolving it;
[3] the impossibility of deciding without an ini-
tial policy determination of a kind clearly for
nonjudicial discretion; [4] the impossibility of a
court’s undertaking independent resolution
without expressing lack of the respect due
12 No. 23-2304

coordinate branches of government; [5] an unu-
sual need for unquestioning adherence to a po-
litical decision already made; or [6] the
potentiality of embarrassment from multifari-
ous pronouncements by various departments
on one question.
369 U.S. 186, 217 (1962).
If an issue qualifies as a political question, it is said to be
“nonjusticiable”—in other words, inappropriate for judicial
resolution. Id. at 198. And as the Court has explained in ad-
dressing the political-question doctrine in another context,
“the doctrine of separation of powers is more properly con-
sidered in determining whether the case is ‘justiciable,” not
whether the court has “jurisdiction over the subject matter of
th[e] case.” Powell v. McCormack, 395 U.S. 486, 512 (1969).
Egan unambiguously invokes Baker’s first factor, holding
that Article II of the Constitution commits sensitive and dis-
cretionary security-clearance decisions “to the appropriate
agency of the Executive Branch.” 484 U.S. at 527. And refer-
ences to several other Baker factors are readily apparent else-
where in the opinion. As we’ve noted, the Court observed that
“it is not reasonably possible for a nonexpert body”—in other
words, a court—to review the substance of a security-
clearance decision or assess the agency’s predictive judgment
about an applicant’s potential security risk. Id. at 529. The
Court also discussed the judiciary’s traditional reluctance to
intrude on the Executive’s authority in national-security and
military matters. Id. This analysis hews closely to the Baker
framework—notably the third and fourth factors.
No. 23-2304 13

It’s no surprise, then, that the Secretary’s supplemental fil-
ing describes Egan as an application of the political-question
doctrine. We agree. And we are in good company in doing so.
See Lee v. Garland, 120 F.4th 880, 888 (D.C. Cir. 2024). But it
doesn’t follow, as the Secretary argues, that Egan necessarily
imposes a limitation on a court’s subject-matter jurisdiction.
True, the Supreme Court has sometimes described the
political-question doctrine as jurisdictional in character. See
Rucho v. Common Cause, 588 U.S. 684, 696 (2019) (A nonjustici-
able political question lies “outside the courts’ competence
and therefore beyond the courts’ jurisdiction.”). But not invar-
iably so. In Nixon v. United States, for example, the Court
affirmed, on political-question grounds, the nonjurisdictional
dismissal of former Judge Walter Nixon Jr.’s claim that a
Senate procedural rule violated the Impeachment Trial
Clause. 506 U.S. 224, 238 (1993). And in United States Depart-
ment of Commerce v. Montana, the Court said that when “an
issue presents a nonjusticiable political question, [the court]
declines to address the merits of that issue.” 503 U.S. 442, 457–
58 (1992) (emphasis added).
Several scholars have likewise argued that the political-
question doctrine does not impose a jurisdictional constraint
on the federal courts. Professor John Harrison, for example,
has described the doctrine as one that accords finality to cer-
tain decisions committed to the discretion of the political
branches and forecloses prospective remedies that risk inter-
fering with their discretionary judgments; he argues that the
doctrine, as traditionally and properly understood, “does not
rest on limits on the federal courts’ authority to decide cases.”
John Harrison, The Political Question Doctrines, 67 AM. U. L.
REV. 457, 460, 509 (2017). Professor Tara Leigh Grove has also
14 No. 23-2304

traced the origins of the doctrine, explaining that it histori-
cally required courts “to enforce and apply the determina-
tions of the federal political branches on ‘political questions’”
but did not constrain their jurisdiction. Tara Leigh Grove, The
Lost History of the Political Question Doctrine, 90 N.Y.U. L. REV.
1908, 1911 (2015).
History and tradition aside, there are structural reasons to
question the view that the political-question doctrine enforces
a limit on the adjudicative power of the courts. Most obvi-
ously, rules derived from Article III’s “case or controversy”
requirement constrain only the federal courts. ASARCO Inc. v.
Kadish, 490 U.S. 605, 617 (1989). Yet state courts surely have no
greater freedom to interfere with the discretionary judgments
of federal political actors. Scott Dodson, Article III and the
Political Question Doctrine, 116 NW. U. L. REV. 681, 704–10
(2021).
All this said, we do not need to pin down the jurisdictional
status of every facet of the political-question doctrine to re-
solve this case. Indeed, trying to do so would be quite an am-
bitious endeavor: Over time the doctrine has taken different
shapes and forms, covering everything from the legitimacy of
Rhode Island’s charter government, see Luther v. Borden,
48 U.S. (7 How.) 1 (1849), to the lawfulness of partisan gerry-
mandering, see Rucho, 588 U.S. 684. Perhaps some of its appli-
cations are jurisdictional while others are not, as at least one
scholar has suggested. See Richard H. Fallon Jr., Political Ques-
tions and the Ultra Vires Conundrum, 87 U. CHI. L. REV. 1481,
1492 (2020). For present purposes, it’s enough to say that Egan
recognizes a kind of political question but does not hold—
either explicitly or implicitly—that its limitation on judicial
review is jurisdictional.
No. 23-2304 15

Accordingly, we hesitate to assign jurisdictional signifi-
cance to the Egan rule. Our reluctance to do so is consistent
with Supreme Court and circuit precedent holding that the
analogous doctrine of consular nonreviewability is not a limit
on subject-matter jurisdiction. Dep’t of State v. Muñoz, 602 U.S.
899, 908 n.4 (2024); Matushkina v. Nielsen, 877 F.3d 289, 294 n.2
(7th Cir. 2017).
The consular-nonreviewability doctrine bars judicial re-
view of decisions regarding the issuance of visas “made by
consular officials abroad.” Matushkina, 877 F.3d at 294. Like
the Egan rule, consular nonreviewability derives from the
Constitution’s separation of powers. Pak v. Biden, 91 F.4th 896,
900 (7th Cir. 2024). As the Supreme Court has recognized, “the
admission and exclusion of foreign nationals is a ‘fundamen-
tal sovereign attribute exercised by the Government’s political
departments.’” Trump v. Hawaii, 585 U.S. 667, 702 (2018) (quot-
ing Fiallo v. Bell, 430 U.S. 787, 792 (1977)). Such decisions often
“implicate relations with foreign powers” and reflect “chang-
ing political and economic circumstances.” Id. (quotation
omitted). Because federal courts lack expertise on these mat-
ters, they “have no authority to second-guess the Executive’s
decisions.” Yafai v. Pompeo, 912 F.3d 1018, 1020 (7th Cir. 2019).
The consular-nonreviewability doctrine and the Egan rule
rest on the same foundation. Both arise from the Executive
Branch’s authority over discretionary decisions regarding for-
eign policy and national security, and both mandate judicial
deference to such decisions if later challenged. So whether the
Executive Branch has denied a visa application or revoked a
security clearance, its decision “is final and conclusive.”
Muñoz, 602 U.S. at 908 (quotation omitted). Judicial review is
unavailable.
16 No. 23-2304

Key here, we held in Matushkina that the doctrine of con-
sular nonreviewability concerns “a case’s merits rather than
the federal courts’ subject matter jurisdiction.” 877 F.3d at 294
n.2; Hazama v. Tillerson, 851 F.3d 706, 707 (7th Cir. 2017); see
also Allen v. Milas, 896 F.3d 1094, 1101 (9th Cir. 2018) (explain-
ing that the consular-nonreviewability doctrine is not a con-
straint on subject-matter jurisdiction but instead a rule of
deference). The Supreme Court agrees. Trump, 585 U.S. at 682;
see Muñoz, 602 U.S. at 908 n.4 (“The Court explained [in Trump
v. Hawaii] that the doctrine of consular nonreviewability is not
jurisdictional … .”). If the consular-nonreviewability doctrine
does not constrain a court’s subject-matter jurisdiction, we
struggle to see how Egan’s analogous limitation could.
The final reason why we do not read Egan as imposing a
jurisdictional limit lies in how its rule has subsequently been
described. Notably, neither we nor the Supreme Court has
ever referred to Egan’s rule as jurisdictional in nature. On the
contrary, several members of the Supreme Court have char-
acterized it as a rule of judicial deference to the Executive
Branch. United States v. Zubaydah, 595 U.S. 195, 216 (2022)
(Thomas, J., concurring in part and concurring in the judg-
ment); Franklin v. Massachusetts, 505 U.S. 788, 818 (1992)
(Stevens, J., concurring in part and concurring in the judg-
ment). We have too. Grand Trunk Corp. v. Transp. Sec. Adm’n,
153 F.4th 517, 525 (7th Cir. 2025); Whitney v. Carter,
628 F. App’x 446, 447 (7th Cir. 2016). And so have some of our
sister circuits. See Kaplan v. Conyers, 733 F.3d 1148, 1155–56
(Fed. Cir. 2013); Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 196
(9th Cir. 1995).
We acknowledge that some circuits have used the term
“subject-matter jurisdiction” (or variations of it) when
No. 23-2304 17

describing the Egan rule. See, e.g., United States ex rel. Johnson
v. Raytheon Co., 93 F.4th 776, 789 (5th Cir. 2024); Mowery v.
Nat’l Geospatial-Intel. Agency, 42 F.4th 428, 443 (4th Cir. 2022).
As best we can tell, however, none has squarely addressed
Egan’s jurisdictional status. And most of these cases simply
rely on opinions that attached a jurisdictional label to Egan’s
rule decades ago when courts reflexively “used the word ‘ju-
risdiction’ to refer to all doctrines that foreclose judicial re-
view.” Builders Bank v. FDIC, 846 F.3d 272, 274 (7th Cir. 2017).
Modern cases like Johnson and Mowery rely on this outdated—
and more importantly, unreasoned—circuit precedent, so
their use of the term is entitled to minimal weight.
The Supreme Court has cautioned against reliance on un-
explained—or “drive-by”—incantations of the term “jurisdic-
tion.” Steel Co., 523 U.S. at 91. Indeed, the Court has
acknowledged that some of its own cases have used the term
in a “less than meticulous” manner. Kontrick v. Ryan, 540 U.S.
443, 454 (2004). And because harsh consequences attend “the
jurisdictional brand,” the Court has endeavored to “bring
some discipline” to the use of the term and has instructed us
to think twice before labeling a rule as jurisdictional. Hender-
son ex rel. Henderson v. Shinseki, 562 U.S. 428, 435 (2011). That
is so, the Court has said, even if a rule is “important and man-
datory.” Id.
We heed that instruction here. For all the reasons just dis-
cussed, we conclude that the Egan rule is not a jurisdictional
limit. Instead, it imposes a rule of finality or mandatory judi-
cial deference, making the Executive Branch’s decisions on
security-clearance matters conclusive and binding on the
courts. In application, the distinction between a jurisdictional
and a nonjurisdictional reading of Egan does not make a
18 No. 23-2304

practical difference. The upshot is the same: Where the Egan
bar has been raised and applies, judicial review is unavailable
and the court must dismiss the plaintiff’s claim.
B. Egan’s Scope
With the nature of the Egan rule settled, we turn to decid-
ing whether it bars review of Shiba’s claim. His suit does not,
of course, directly challenge the withholding of his security
clearance; it focuses on the USCIS’s decision to rescind his em-
ployment offer. Even so, adjudicating Shiba’s retaliation claim
“would inevitably involve scrutiny” of the reasons for his de-
layed clearance. El-Ganayni v. U.S. Dep’t of Energy, 591 F.3d
176, 186 (3d Cir. 2010). Scrutinizing that decision is precisely
what Egan forbids.
Shiba’s retaliation claim necessarily requires an inquiry
into why his security investigation stalled. He alleges that the
agency delayed his clearance in retaliation for his statutorily
protected activity—namely, his complaints and previous liti-
gation accusing the Department of disability discrimination.
Any other reason, he asserts, is pretexual.
But deciding whether Shiba’s clearance was delayed for a
“legitimate or pretextual” reason falls squarely within the
Egan rule. Brazil, 66 F.3d at 197. Because decisions regarding
security clearances are committed to the discretion of the
Executive Branch, a court may neither “demand from the
[agency] an explanation of its decision” nor permit “a fact-
finder to weigh [its] arguments in support of that decision.”
El-Ganayni, 591 F.3d at 185. To do either would intrude on the
Executive Branch’s discretion “to determine who may have
access” to classified information and to decide “what consti-
tutes an acceptable margin of error in assessing the potential
No. 23-2304 19

risk.” Egan, 484 U.S. at 529. In short, a court cannot evaluate a
claim of pretext “without running smack up against Egan.”
Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999).
Shiba resists this conclusion, but his arguments are merit-
less. As an initial matter, he contends that Egan does not fore-
close review of his claim because his security clearance was
never formally denied; rather, his background investigation
lingered for a year until the USCIS finally rescinded its offer.
True, but irrelevant. Egan doesn’t distinguish between an out-
right denial of a security clearance and a constructive denial—
that is, an indeterminate delay that is tantamount to denial.
Whether an agency formally denies a security clearance or
constructively denies one by virtue of delay, its refusal to
grant access to classified information is immune from judicial
review. See Mowery, 42 F.4th at 438–39 (The decision to cease
a security process, even if not a “black-and-white denial[],” is
a “discretionary predictive judgment shielded from judicial
review.”).
Shiba alternatively invokes the D.C. Circuit’s decision in
Rattigan, which, as we’ve noted, created an exception to the
Egan rule for employment-discrimination claims based on
“knowingly false security reports or referrals.” 689 F.3d at
770. We note for starters that Rattigan is not binding authority.
We have not adopted a similar exception in our circuit. Nor
are we inclined to consider doing so here. Even on its own
terms, Rattigan does not apply to Shiba’s case.
Rattigan involved a Title VII retaliation claim by an FBI
employee, a black man of Jamaican descent; he alleged that
his colleagues reported “unfounded security concerns” to the
agency’s security division, which in turn prompted an inves-
tigation into his continued eligibility for a security clearance.
20 No. 23-2304

Id. at 765–66. The security division was unable to substantiate
the allegations, so he retained his clearance. Id. at 766. But he
sued nonetheless, claiming that his colleagues’ unfounded se-
curity referral was retaliatory for his past complaints of racial
and national-origin discrimination. Id.
A divided panel of the D.C. Circuit held that the plaintiff’s
claim could proceed. Acknowledging that Egan “imposes an
absolute bar” on judicial review of security-clearance deter-
minations, id. at 771, the panel majority created an exception
for “claims based on knowingly false” security reports, id. at
770. Over a dissent by then-Judge Kavanaugh, the majority
concluded that such claims “present no serious risk” of
chilling reports of security concerns, so they could “coexist”
with Egan’s rule. Id. In dissent Judge Kavanaugh argued that
the majority’s exception could not be reconciled with Egan. Id.
at 773–76 (Kavanaugh, J., dissenting).
It’s not clear to us that the Rattigan exception is compatible
with Egan’s reasoning and rule. But we do not need to decide.
Shiba’s claim is distinguishable. By its terms, Rattigan is a nar-
row exception for claims based on “knowingly false” security
reports and referrals. But Shiba’s retaliation claim challenges
the USCIS’s 2020 rescission of its 2019 job offer, which in turn
was based on his stalled security clearance. He does not chal-
lenge Dorochoff’s 2011 OIG referral—at least not in this suit.
Shiba tries to get around this problem by arguing that
Dorochoff’s 2011 referral, which he contends was false, some-
how thwarted the issuance of his security clearance nearly a
decade later. That theory strikes us as far-fetched, especially
since the OIG investigation did not substantiate Dorochoff’s
allegations and instead found that Shiba committed different
misconduct by lying on his employment application and
No. 23-2304 21

misusing his federal position when contacting the United
Nations Refugee Agency on behalf of Iraqi refugees.
Regardless, what matters is that Shiba’s retaliation claim
doesn’t fit within the Rattigan exception because it does not
challenge Dorochoff’s 2011 OIG referral. Instead, his suit chal-
lenges an unrelated employment action that occurred many
years later: the rescission of his 2019 USCIS job offer. So even
if we were inclined to adopt a Rattigan-like exception, it
wouldn’t help him.
In sum, Shiba’s claim lies within the heartland of Egan’s
limitation on judicial review, and no recognized exception ap-
plies. The district judge was right to dismiss it—although not
on jurisdictional grounds. We therefore modify the judgment
to reflect a dismissal on the merits for failure to state a claim
on which relief can be granted. 2 As modified, the district
court’s judgment is
AFFIRMED.

2 As we explained in Matushkina v. Nielsen, modifying a judgment to a dis-

missal on the merits does not require a cross-appeal so long as the under-
lying “jurisdictional dismissal effectively bar[red] relief on the merits in
any judicial forum.” 877 F.3d 289, 297 (7th Cir. 2017). That is true of the
dismissal here. In cases like these, the defendant need not file a cross-
appeal because “modifying the dismissal from jurisdiction to merits
makes no practical difference”; “[i]t does not expand the defendant’s
rights.” Id.