85 Cornell L. Rev. 786 (1999-2000)
Reviewing National Security Clearance Decisions: The Clash between Title VII and Bivens Claims

handle is hein.journals/clqv85 and id is 794 raw text is: NOTE
REVIEWING NATIONAL SECURITY CLEARANCE
DECISIONS: THE CLASH BETWEEN TITLE VII
AND BIVENS CLAIMS
David C. Mayer
INTRODUCTION   .................................................  787
I. NATIONAL SECURITY CLEARANCES IN A NUTsHELL ......... 792
A. History of Formulation ............................. 792
B. Granting, Denying, Revoking, and Firing ........... 795
II. REVIEW OF DISCRIMINATION CLAIMS IN NATIONAL
SECURIY CLEARANCE DETERMINATIONS ................... 797
A.  Internal Review  .....................................  797
B.  Title VII Claims  ....................................  798
1. The Political Question Doctrine, Executive Privilege,
and Separation of Powers ......................... 798
2. Department of Navy v. Egan .................... 801
3. Federal Courts and Title VII Post-Egan ............. 802
C. Constitutional Claims ............................... 804
1.  Bivens  Claims ...................................  804
2. Webster v. Doe and Its Progeny .................. 805
D. Preclusion of Bivens Claims by Title VII ............. 807
1. Statutory Preclusion of Bivens Claims in General .... 807
2. Without Recourse: Simultaneous Title VII and Bivens
Claims in the Security Clearance Context ............ 809
III. REMEDYING THE ANOMALY: PROPOSED AMENDMENT TO
TITLE  VII  ...............................................  811
A. Challenges to Legislation ........................... 814
B. Defending the Amendment ......................... 815
CONCLUSION   ...................................................  821
Steve and Joe are both federal employees who have national security clearance.
One day, the agencies for which they work revoke their security clearances and subse-
quently terminate them. Steve, who is gay, believes the federal government has discrimi-
nated against him on the basis of his sexual orientation. However, Steve cannot bring
a Title VII claim under the Civil Rights Act of 1964' because that statute does not
include gays and lesbians within its sphere of protection from discrimination. Conse-
quently, Steve brings an equal protection claim directly under the Constitution, and the
1 42 U.S.C.  2000e to e-17 (1994).
786

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