Dored Shiba v. Markwayne Mullin

── Dored Shiba v. Markwayne Mullin ── Court: Court of Appeals for the Seventh Circuit Date: April 23, 2026 Category: General 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 When the security concerns remained unresolved for more than a year, the agency rescinded its offer.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 Im