Many space and defense jobs require a federal security clearance. If the government denies, delays, or revokes a clearance, an employee may be unable to continue in that role; the employer may reassign or terminate the employee. If the cleared individual is an officer of the company, revocation could jeopardize the company’s eligibility to perform cleared work. A subsequent employment claim may allege discrimination or retaliation in the clearance process or in the employer’s response. The key question is whether a court can resolve the claim without second-guessing the government’s security judgment.

Egan and the Limits of Judicial Review

The Supreme Court’s decision in Department of the Navy v. Egan, 484 U.S. 518 (1988), limited administrative and judicial review of executive branch security judgments. But the rule does not create blanket immunity. Later cases show that the rule depends on the nature of the decision being challenged — and on whether resolving a claim would require a tribunal to second-guess the government’s assessment of security risk. That distinction affects how courts evaluate employment claims framed as discrimination, harassment, or retaliation in the commercial space and defense sectors, where many workers hold federal security clearances.

In Egan, the Supreme Court considered whether the Merit Systems Protection Board (MSPB), which has authority to review certain adverse personnel actions against federal employees, could review the Navy’s decision to deny a civilian employee a security clearance after the employee was removed from a position that required one. The question was whether the Board’s authority to review the removal also permitted it to examine the underlying security decision — to decide for itself whether the employee should have access to classified information. The Court held that, without clear congressional authorization, the MSPB could not review the merits of the clearance determination.

The Court reasoned that clearance determinations involve predictive judgments about whether someone might compromise sensitive information. Those judgments, it said, depend on national-security expertise and are committed to the responsible executive agency. The Civil Service Reform Act authorized the MSPB to review certain personnel actions; however, the Court found no clear indication that Congress had also authorized it to reweigh the agency’s substantive clearance decision.

The decision reflects a central principle of national-security law: judgments about who may access classified information generally are entrusted to the executive branch. But Egan does not mean that every employment dispute involving a security-sensitive job is beyond review. Later cases — including Mowery v. National Geospatial-Intelligence Agency, United States ex rel. Johnson v. Raytheon Co., Gonzales v. Battelle Energy Alliance, LLC, and Shiba v. Mullin — illustrate how courts distinguish challenges to security judgments from claims that can be resolved without reassessing those judgments.

Mowery: Substance Matters More Than Labels

In Mowery v. National Geospatial-Intelligence Agency, 42 F.4th 428 (4th Cir. 2022), the Fourth Circuit applied Egan to Title VII claims alleging religious discrimination and retaliation. The CIA stopped processing Nathan Mowery for an assignee position after a psychological evaluation. The CIA said the decision was not a formal security-clearance denial.

The Fourth Circuit focused on what the assessment did, not what the agency called it. The evaluation addressed Mowery’s reliability, trustworthiness, judgment, and ability to protect classified information. The court treated that assessment as the kind of predictive national-security judgment protected by Egan. Because resolving Mowery’s claims would require the court to examine the merits of that judgment, the court affirmed dismissal for lack of subject-matter jurisdiction. 

The court also rejected the argument that review was permissible because Mowery sought an injunction, had not received detailed reasons, or lacked an internal appeal. It explained that those circumstances did not change the nature of the security judgment. The opinion noted that an agency may remain subject to requirements to follow its own regulations, but Mowery had not pleaded a specific procedural violation. The court did not reach the district court’s alternative ground under Title VII’s national-security provision. 

Mowery extends the Egan analysis beyond decisions formally labeled as clearance grants, denials, or revocations. The focus is whether the challenged decision involves the same kind of predictive security judgment — and whether deciding the claim would require a tribunal to reassess it.

Johnson: When Egan Applies to Contractor Employment Claims

In United States ex rel. Johnson v. Raytheon Co., 93 F.4th 776 (5th Cir. 2024), the Fifth Circuit considered a False Claims Act retaliation suit against a private government contractor. Dana Johnson alleged that Raytheon retaliated against him for raising concerns about its work for the Navy. The court held that Egan barred review of Johnson’s claims that Raytheon monitored him, reported suspected security violations to the Navy, and fired him. The Navy had found that Johnson committed security violations, and the Defense Department’s Central Adjudication Facility relied on those findings in revoking his top-secret clearance. In the court’s view, deciding whether Raytheon’s stated reasons were pretextual would require it to question the government’s findings and the resulting clearance decision.

The court did not hold that every employment claim against a government contractor is barred. Johnson’s claim that a Raytheon employee told him not to report his concerns to the Navy did not require review of the clearance decision and was not barred by Egan. The court nevertheless affirmed summary judgment on that claim because the statements, as presented in the record, did not amount to a materially adverse action. 

The majority’s ruling was divided. Judge Higginson dissented from extending Egan to Johnson’s private-sector whistleblower claims, arguing that the doctrine should not shield an alleged retaliatory firing by a government contractor from judicial review. The majority’s holding was narrower: on the facts before it, several of Johnson’s claims could not be resolved without scrutinizing the government’s security findings.

Gonzales v. Battelle Energy Alliance, LLC, 172 F.4th 1105 (9th Cir. 2026), helps illustrate the limits of Egan. Roman Gonzales, a security police officer at a Department of Energy facility, sued under the Americans with Disabilities Act after Battelle revoked his fitness-for-duty certification under 10 C.F.R. Section 1046 and terminated his employment. Battelle argued that the certification decision was a nonreviewable security determination under Egan.

The Ninth Circuit disagreed. It distinguished the Section 1046 certification — which assesses whether security personnel are medically and physically capable of performing their jobs — from the Department of Energy’s Human Reliability Program (HRP), which addresses reliability and access to sensitive information. The court concluded that the Section 1046 decision did not involve the same predictive judgment about the risk of disclosing classified information that was at issue in Egan. It also noted that Section 1046 expressly requires compliance with the ADA.

The court distinguished the HRP from the fitness-for-duty certification, rather than treating the two programs as interchangeable. It recognized that an agency-level decision concerning HRP certification may fall within Egan under Foote v. Moniz. But the regulations reserve final authority to revoke an HRP certification for the Department of Energy, and Battelle had not obtained a final Department decision in Gonzales’s case. The Ninth Circuit therefore held that Battelle’s Section 1046 fitness-for-duty decision was reviewable and affirmed the denial of Battelle’s motion for judgment as a matter of law.

Gonzales underscores that the setting alone does not determine whether Egan applies. A decision made at a nuclear facility may raise safety concerns, but the relevant question is whether the particular decision is a national-security judgment about access to sensitive information or a different kind of determination, such as whether an employee can physically perform job duties.

Shiba: Jurisdictional Bar or Merits Rule?

Shiba v. Mullin, 173 F.4th 895 (7th Cir. 2026), applied Egan but is notable for how it characterized the rule. Dored Shiba was tentatively selected for a position with U.S. Citizenship and Immigration Services that required a security clearance. His background investigation stalled after the agency identified serious issues. When no clearance issued within a year, the agency rescinded the offer. Shiba sued under the Rehabilitation Act, alleging that the delay was not driven by genuine security concerns but was a pretext for retaliation based on his earlier disability-discrimination complaints and litigation.

The Seventh Circuit held that Egan barred the claim, but it differed from other courts on whether the Egan bar was jurisdictional. The court concluded that it was not. Reading Egan as an application of the political-question doctrine, the court held that the rule is one of mandatory deference and finality: it forecloses review of covered claims on the merits rather than stripping the court of subject-matter jurisdiction. The distinction did not change the outcome because, where Egan applies, the claim must be dismissed. The court modified the judgment to reflect a merits-based dismissal rather than a jurisdictional one.

The court also concluded that resolving Shiba’s pretext theory would require second-guessing the agency’s reasons for withholding his clearance, placing the claim within Egan. It declined to adopt the narrow exception for knowingly false security referrals that the D.C. Circuit has recognized.

Shiba suggests that Egan may reach a constructive denial — an indefinite delay that operates as a refusal to grant a clearance — as well as a formal denial. By treating the bar as a merits rule rather than a jurisdictional limit, the decision also highlights that courts differ on whether Egan withdraws a court’s power to hear a case or dictates how the case must be resolved.

A separate appeal by the same plaintiff illustrates the dividing line. In Shiba v. Mullin, 174 F.4th 1025 (7th Cir. 2026), Shiba’s companion Rehabilitation Act claims for failure to accommodate and a hostile work environment did not require a court to review a security-clearance decision, so Egan was not implicated. Those claims proceeded on ordinary employment-law grounds, and the Seventh Circuit affirmed summary judgment against him based on exhaustion and the merits. The two suits illustrate a claim-specific inquiry: Shiba’s clearance-based retaliation claim was foreclosed by Egan, while his claims that did not turn on a security judgment proceeded to the merits.

What the Cases Show

Together, these decisions point to a claim-specific inquiry. Courts ask what decision is being challenged, what that decision was designed to assess, and whether resolving the claim would require the court or administrative body to reconsider the government’s substantive security judgment.

Mowery applied Egan where the challenged psychological evaluation assessed an individual’s reliability and ability to protect classified information. Johnson applied it to retaliation claims that, on the record before the court, depended on disputing government findings underlying a clearance revocation. Gonzales, by contrast, held that a medical and physical fitness-for-duty determination was reviewable because it served a different function from a security-clearance decision. And Shiba applied Egan to bar a retaliation claim based on the agency’s stalled clearance decision, while treating the bar as a rule that operates on the merits rather than as a limit on the court’s jurisdiction.

These decisions do not establish that agencies have unlimited discretion or that every employment claim connected to security screening is barred. Rather, they show that courts examine whether a claim can be resolved without substituting their judgment for the executive branch’s assessment of national-security risk. The answer may depend on the governing statute, the decision-maker, the type of assessment, and the relief sought.

Whether Egan operates as a jurisdictional bar or a merits rule may also have procedural consequences. A jurisdictional limit may be raised at any stage, cannot be waived or forfeited, and yields dismissal without a decision on the merits; a rule of mandatory deference applied on the merits is subject to the ordinary rules of waiver and produces a merits judgment that can carry preclusive effect in later litigation. For employers and employees in the space and defense sectors, where clearance-dependent roles are the norm, that difference can shape when the defense must be asserted, the procedural posture in which a claim is resolved, and the consequences of that resolution for future disputes.