What happens when a retaliation claim runs into national security? HR needs to know
A federal employee's retaliation claim was shut down because it bumped up against a national security wall courts refuse to climb.
On April 23, 2026, the Seventh Circuit Court of Appeals handed down its decision affirming the dismissal of a Rehabilitation Act retaliation claim brought by a former USCIS employee. The ruling reinforces a hard truth for HR professionals in the federal space: when a security clearance is involved, anti-retaliation protections have a ceiling.
Dored Shiba's saga with the Department of Homeland Security stretches back to 2007, when he was hired as an Immigration Information Officer at the USCIS field office in Chicago. Within two months, he suffered a workplace injury that took him out of commission. Three years of unpaid medical leave later, the agency fired him. Shiba fought back through the Merit Systems Protection Board, which ordered the agency to reinstate him with accommodations. But his troubles were far from over.
While still on leave, Shiba was referred to the Office of Inspector General by a USCIS district director who accused him of accepting improper gratuities for representing refugees. A two-year investigation was unable to substantiate those allegations but turned up other problems: he had misrepresented his employment history on his application and had improperly used his federal position to contact the United Nations Refugee Agency about Iraqi refugees. USCIS fired him again in August 2014.
Shiba kept coming back. In 2017, he applied for a position with Immigration and Customs Enforcement, was tentatively selected, and then watched his background check stall for a year before the offer was pulled. He sued, alleging disability discrimination, and lost at summary judgment.
In 2019, he tried once more, this time for a citizenship and immigration assistant role at the USCIS Asylum Office in Chicago. Again, he was tentatively selected. Again, his background investigation hit a wall. The agency's Personnel Security Division flagged serious issues and learned another agency already had a background check in progress on Shiba. After a year without a clearance, USCIS rescinded the offer.
This time, Shiba alleged retaliation. He claimed the agency deliberately dragged its feet on his security clearance to punish him for his earlier discrimination complaints and litigation. He filed with the EEOC and then sued the Secretary of Homeland Security under the Rehabilitation Act.
The government moved to dismiss, invoking the Supreme Court's 1988 decision in Department of the Navy v. Egan, which holds that security-clearance decisions are the exclusive province of the Executive Branch and are off-limits to judicial review.
The district court agreed and tossed the case on jurisdictional grounds.
The Seventh Circuit affirmed the dismissal but corrected the reasoning. Writing for the panel, Circuit Judge Sykes held that the Egan doctrine is not actually a jurisdictional bar. Instead, it functions as a rule of mandatory deference to the Executive Branch on security-clearance matters. The practical effect is the same – courts will not touch these decisions – but the doctrinal distinction matters. The panel modified the dismissal to reflect a merits-based ruling rather than a jurisdictional one.
On the substance, the court found that Shiba's retaliation claim fell squarely within Egan's reach. Evaluating whether the agency's reasons for withholding his clearance were legitimate or pretextual would require exactly the kind of second-guessing that Egan prohibits. The court also rejected Shiba's argument that Egan should not apply simply because his clearance was never formally denied. A year-long delay that ends with a rescinded job offer amounts to a constructive denial, and that is just as unreviewable as an outright one.
Shiba also asked the court to follow the D.C. Circuit's Rattigan v. Holder decision, which created a narrow exception to Egan for claims based on knowingly false security reports. The Seventh Circuit declined, expressing skepticism about whether such an exception is even compatible with Egan. It also found Shiba's situation distinguishable, since his claim challenged the 2020 rescission of his job offer, not the 2011 referral he contends was false.
For HR professionals managing federal or security-sensitive workforces, this decision draws a clear line. Anti-retaliation protections under the Rehabilitation Act do not extend to employment actions that are tied to security-clearance determinations. If the adverse action traces back to a clearance decision – whether that decision is a formal denial or a delay that effectively serves as one – courts will not intervene, regardless of the employee's allegations about motive.
