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The Exception Is the Rule

The Role of Security Clearances in Employment Discrimination

The 1988 Supreme Court decision Department of Navy v. Egan created a bar on judicial review of security-clearance determinations. Today, this comes up most often in the context of employment discrimination, leading courts to find they have no jurisdiction over the claim. The baron judicial review is not universal, and a handful of exceptions have emerged in lower courts over the years. However, this Comment shows that the so-called “exceptions” are not exceptions at all. Rather, they arise in situations where there is no need for the court to review the security-clearance determination. This Comment proposes to reformulate the Egan framework into a single inquiry that probes whether the claim requires judicial review of a security-clearance determination. Such a reframing would simplify the analysis and promote access to justice in employment-discrimination cases.