United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 17, 2009 Decided August 14, 2009
No. 08-5403
SARAH E. ORYSZAK,
APPELLANT
v.
MARK SULLIVAN,
DIRECTOR, UNITED STATES SECRET SERVICE,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cv-01141-JDB)
Sheldon I. Cohen argued the cause and filed the briefs for
appellant.
Abby C. Wright, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Michael F. Hertz, Acting Assistant Attorney General, Jeffrey
A. Taylor, U.S. Attorney, and Thomas M. Bondy, Attorney.
Joel McElvain, Attorney, entered an appearance.
2
Before: GINSBURG, ROGERS, and KAVANAUGH, Circuit
Judges.∗
Opinion for the Court filed by Circuit Judge GINSBURG.
Concurring opinion filed by Circuit Judge GINSBURG.
GINSBURG, Circuit Judge: The United States Secret
Service revoked the Top Secret security clearance of Special
Agent Sarah E. Oryszak after the agency concluded she had
“knowingly passed counterfeit currency.” Because having a
Top Secret security clearance was a requirement of her job,
Oryszak’s employment was terminated.
Oryszak does not dispute that she passed counterfeit
currency but claims she did not do so knowingly. After
exhausting her administrative appeals, she filed this suit under
the Administrative Procedure Act, claiming the revocation of
her security clearance was arbitrary, capricious, and an abuse
of discretion for want of evidence she had passed the currency
knowingly.1 The Government moved to dismiss the
∗
Circuit Judge KAVANAUGH concurs in all but footnote 3 of the
opinion of the court.
1
Oryszak maintains she also brought a constitutional claim for
deprivation of liberty and property interests without due process of
law, but she did not sufficiently raise that claim in her complaint or
otherwise give the district court notice thereof. See 565 F. Supp. 2d
14, 19 n.1 (2008) (“Oryszak does not make any constitutional
claims here”). Oryszak points out that, in support of her prayer for
injunctive relief, she alleged irreparable harm because she is unable
to get work that requires a security clearance. Even if that
allegation had not appeared under the heading “Violation of the
APA,” it would still have been too obscure a hint to have put the
court on notice of a constitutional claim; so too with the
observation en passant in her opposition to summary judgment that
3
complaint for lack of subject matter jurisdiction per FED. R.
CIV. P. 12(b)(1) or, in the alternative, for failure to state a
claim, per FED. R. CIV. P. 12(b)(6). The district court,
concluding the decision was committed to the discretion of
the Secret Service, granted the motion to dismiss for lack of
subject matter jurisdiction.
Because the facts are not in dispute, we rely upon the
account given by the district court. 565 F. Supp. 2d at 16-17.
We affirm that court’s order dismissing Oryszak’s complaint,
but issue this opinion to clarify that the complaint should be
dismissed not for want of subject matter jurisdiction but for
failure to state a claim. See EEOC v. St. Francis Xavier
Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997)
(“Although the district court erroneously dismissed the action
pursuant to Rule 12(b)(1), we could nonetheless affirm the
dismissal if dismissal were otherwise proper based on failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6)”).
***
The district court dismissed the complaint for lack of
jurisdiction on the ground that “the Secret Service’s decision
even a broadly drawn statute “does not exclude a review of a
colorable constitutional claim,” her argument there being that
revocation of a security clearance is not an act “committed to
agency discretion by law” within the exclusion from judicial review
in APA § 10, 5 U.S.C. § 701(a)(2). See Greenhill v. Spellings, 482
F.3d 569, 573 (D.C. Cir. 2007) (“nothing in our case law requires a
district court to go on a fishing expedition for new claims”).
Accordingly, we will not consider Oryszak’s constitutional claim in
this appeal. See Ranger Cellular v. FCC, 333 F.3d 255, 261 (D.C.
Cir. 2003) (“We do not ordinarily consider an argument made for
the first time on review”).
4
to revoke Oryszak’s security clearance was a decision
committed to agency discretion by law,” 565 F. Supp. 2d at
23, and therefore not subject to the APA. See 5 U.S.C. §
701(a)(2) (providing the APA does not apply to “agency
action ... committed to agency discretion by law”). We agree
with the district court that the decision of the Secret Service
was committed to agency discretion, although we conclude
this is not a jurisdictional bar.
The jurisdiction of the district court did not depend upon
the APA, which “is not a jurisdiction-conferring statute.”
Trudeau v. FTC, 456 F.3d 178, 183 (D.C. Cir. 2006); see
Califano v. Sanders, 430 U.S. 99, 107 (1977) (“[T]he APA
does not afford an implied grant of subject-matter jurisdiction
permitting federal judicial review of agency action”). Rather,
the court had subject-matter jurisdiction pursuant to the so-
called “federal question” statute, 28 U.S.C. § 1331, which
grants the district court “original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States” and thereby “confer[s] jurisdiction on federal
courts to review agency action.” Califano, 430 U.S. at 105;
see also Chrysler Corp. v. Brown, 441 U.S. 281, 317 n.47
(1979) (“Jurisdiction to review agency action under the APA
is found in 28 U.S.C. § 1331”); Ass’n of Nat’l Advertisers v.
FTC, 617 F.2d 611, 619 (D.C. Cir. 1979) (“General federal
question jurisdiction ... gives the district courts the power to
review agency action absent a preclusion of review statute”).
The judicial review provisions of the APA, 5 U.S.C. §§
701-706, provide “a limited cause of action for parties
adversely affected by agency action.” Trudeau, 456 F.3d at
185. Because the APA does not apply to agency action
committed to agency discretion by law, a plaintiff who
challenges such an action cannot state a claim under the APA.
Therefore, the court has jurisdiction over his case pursuant to
5
§ 1331, but will properly grant a motion to dismiss the
complaint for failure to state a claim. See Arbaugh v. Y & H
Corp., 546 U.S. 500, 515 (2006) (limitation on cause of action
that “does not speak in jurisdictional terms or refer in any way
to the jurisdiction of the district courts” is not jurisdictional).2
The Supreme Court has made clear that, at least in the
absence of legislation, “the grant of security clearance to a
particular employee, a sensitive and inherently discretionary
judgment call, is committed by law to the appropriate agency
of the Executive Branch.” Dep’t of the Navy v. Egan, 484
U.S. 518, 527 (1988). As Commander in Chief, U.S. CONST.,
Art. II, § 2, the President has constitutional authority, subject
to appropriate limitation by the Congress, “to classify and
control access to information bearing on national security and
to determine whether an individual is sufficiently trustworthy
to occupy a position in the Executive Branch that will give
that person access to such information.” Id. at 527. The
President has delegated that authority to various agencies in
the Executive Branch, including the Secret Service. See Exec.
Order No. 12,968, 60 Fed. Reg. 40,245 (1995).
Under Egan it falls to the Secret Service to “determine
what constitutes an acceptable margin of error in assessing the
2
Recently we clarified that the provision of the APA limiting
judicial review to “final agency action,” 5 U.S.C. § 704, goes not to
whether the court has jurisdiction but to whether the plaintiff has a
cause of action, though some prior opinions had “loosely referred to
the final agency action requirement as ‘jurisdictional.’” Trudeau,
456 F.3d at 184; cf. Arbaugh, 546 U.S. at 510 (“‘Jurisdiction ... is a
word of many, too many, meanings.’ This Court, no less than other
courts, has sometimes been profligate in its use of the term.”)
(internal citation omitted). That clarification applies with equal
force to § 701(a)(2), which, like § 704, limits the cause of action
provided by the APA.
6
potential risk” to national security inherent in granting any
particular individual access to classified information. 484
U.S. at 529. Here, the Secret Service drew from the
undisputed facts an inference about Oryszak’s state of mind
and made a judgment about her risk to security. As we have
stated before, “Egan teaches plainly that review of the breadth
of [the margin of error acceptable in assessing the security
risk posed by an individual] is outside the authority of a
nonexpert body.” United States Info. Agency v. Krc, 905 F.2d
389, 395 (1990). Both the aforementioned cases refer to a
nonexpert administrative body but the principle applies
equally to a court. Therefore, following the lead of the
Supreme Court, we have consistently held that because the
authority to issue a security clearance is a discretionary
function of the Executive Branch, actions based upon denial
of security clearance are committed to agency discretion by
law, at least where a constitutional claim is not properly
presented. See, e.g., Bennett v. Chertoff, 425 F.3d 999, 1001
(D.C. Cir. 2005); Ryan v. Reno, 168 F.3d 520, 524 (D.C. Cir.
1999); Krc, 905 F.2d at 395.
That a plaintiff complains about an action that is
committed to agency discretion by law does not mean his case
is not a “civil action[] arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. It does not
mean, therefore, the court lacks subject matter jurisdiction.
See Baker v. Carr, 369 U.S. 186, 198 (1962). It does mean
there is no “law to apply,” Citizens to Preserve Overton Park,
Inc. v. Volpe, 401 U.S. 402, 410 (1971), because the court has
“no meaningful standard against which to judge the agency’s
exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830
(1985).3
3
The source of confusion upon this point may be in part that
§ 701(a)(2) codifies “traditional principles of nonreviewability,”
7
***
In this case, the APA provides no cause of action to
review the decision of the Secret Service to revoke Oryszak’s
security clearance because that decision is an “agency action
… committed to agency discretion by law.” Therefore
Oryszak failed to state a claim upon which relief can be
granted, and the order of the district court dismissing
Oryszak’s complaint must be
Affirmed.
Sec’y of Labor v. Twentymile Coal Co., 456 F.3d 151, 160 (D.C.
Cir. 2006), according to which a matter committed to agency
discretion is not reviewable because courts lack judicially
manageable standards by which to evaluate it. Drake v. FAA, 291
F.3d 59, 70 (D.C. Cir. 2002). That a particular dispute is
nonjusticiable, however, does not mean the court lacks jurisdiction
over the subject matter. See Baker, 369 U.S. at 198 (“The
distinction between the two grounds is significant. In the instance
of nonjusticiability, consideration of the cause is not wholly and
immediately foreclosed; rather, the Court’s inquiry necessarily
proceeds to the point of deciding whether the duty asserted can be
judicially identified and its breach judicially determined, and
whether protection for the right asserted can be judicially molded”).
GINSBURG, Circuit Judge, concurring: We have held that
actions based upon denial of security clearance do not merely
fail to state a claim, but are beyond the reach of judicial
review. See Bennett, 425 F.3d at 1001 (“Because the
authority to issue a security clearance is a discretionary
function of the Executive Branch and involves the complex
area of foreign relations and national security, employment
actions based on denial of security clearance are not subject to
judicial review”); Ryan, 168 F.3d at 524 (holding “an adverse
employment action based on denial or revocation of a security
clearance is not actionable under Title VII”); Krc, 905 F.2d at
395.
That a plaintiff makes a claim that is not justiciable
because committed to executive discretion does not mean the
court lacks subject matter jurisdiction over his case, as the
opinion of the court helps to clarify. Upon a proper motion, a
court should dismiss the case for failure to state a claim. It
follows, however, that a court must decline to adjudicate a
nonjusticiable claim even if the defendant does not move to
dismiss it under FED. R. CIV. P. 12(b)(6). See Luftig v.
McNamara, 373 F.2d 664, 665 (D.C. Cir. 1967) (affirming
district court’s sua sponte dismissal of complaint “on the
ground that the relief sought represented a claim for judicial
review of political questions”); Mahorner v. Bush, 224 F.
Supp. 2d 48, 53 (D.D.C. 2002) (dismissing sua sponte claims
that “present political questions not subject to judicial
review”).
That the nonjusticiability of a claim may not be waived
does not render justiciability a jurisdictional issue, and this
court has been careful to distinguish between the two
concepts. See, e.g., Joo v. Japan, 413 F.3d 45, 48 (2005)
(“[W]e need not resolve the question of the district court’s
subject-matter jurisdiction ... before considering whether the
complaint presents a nonjusticiable political question”);
Public Citizen v. U.S. Dist. Court, 486 F.3d 1342, 1347
2
(2007) (noting “a federal court may, in appropriate
circumstances, dismiss a case on prudential grounds prior to
establishing its jurisdiction” and applying the enrolled bill
rule); In re Papandreou, 139 F.3d 247, 255 (D.C. Cir. 1998)
(“[A]lthough subject-matter jurisdiction is special for many
purposes ... a court [may instead] dismiss[] on other non-
merits grounds such as forum non conveniens”); see also
Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (holding the Totten rule
requiring dismissal on the ground of public policy, “like the
abstention doctrine ... or the prudential standing doctrine,
represents the sort of ‘threshold question’ we have recognized
may be resolved before addressing jurisdiction”) (internal
citation omitted).
That the court may in its discretion address a threshold
question before establishing that it has jurisdiction does not
render the question jurisdictional nor, significantly, does it
mean the court must address that question at the outset of the
case. Because justiciability is not jurisdictional, a court need
not necessarily resolve it before addressing the merits. A
court may, for example, dismiss a case for failure to state a
claim while reserving the question whether that sort of claim
presents a nonjusticiable political question. A court might
thereby avoid a constitutional ruling regarding separation of
powers and resolve the case upon a solely statutory basis. See
generally Escambia County v. McMillan, 466 U.S. 48, 51
(1984) (“It is a well-established principle governing the
prudent exercise of this Court’s jurisdiction that normally the
Court will not decide a constitutional question if there is some
other ground upon which to dispose of the case”). For a court
to retain this discretion it is important to distinguish among
failure to state a claim, a claim that is not justiciable, and a
claim over which the court lacks subject matter jurisdiction.
3
We have not always been consistent in maintaining these
distinctions. See, e.g., Bancoult v. McNamara, 445 F.3d 427,
432 (D.C. Cir. 2006) (treating the political question doctrine
as jurisdictional). For that reason, I urge the en banc court to
clarify the relationship of justiciability to jurisdiction when an
appropriate case arises.