United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5085 September Term, 2023

 FILED ON: MAY 31, 2024 

MARK MOYAR, 

APPELLANT

v. 

UNITED STATES DEPARTMENT OF DEFENSE AND UNITED STATES AGENCY FOR INTERNATIONAL 

DEVELOPMENT, 

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:22-cv-00478) 

Before: MILLETT, KATSAS, and CHILDS, Circuit Judges. 

JUDGMENT

This appeal was considered on the briefs and the district-court record. The Court has fully 

considered the issues and determined that a published opinion is unwarranted. See Fed. R. App. 

P. 36; D.C. Cir. R. 36(d). It is 

ORDERED that the district court’s judgment be VACATED and the case REMANDED 

for further proceedings consistent with this opinion. 

I 

A 

Executive Order 12,968 governs access to classified information by federal employees and 

contractors. It requires individualized eligibility determinations based on considerations such as 

“loyalty to the United States, strength of character, trustworthiness, honesty, reliability, discretion, 

and sound judgment.” Exec. Order No. 12,968 § 3.1(b), 60 Fed. Reg. 40,245, 40,250 (Aug. 7, 

1995). Section 5.2 of the Executive Order requires “review proceedings for denials or revocations 

of eligibility for access” to classified information. Id. § 5.2, 60 Fed. Reg. at 40,252 (cleaned up). 

Subsection (a)(2) of that provision states that applicants or employees “determined to not meet the 

standards for access to classified information” must be provided the “documents, records, and 

reports upon which a denial or revocation is based.” Id. § 5.2(a)(2), 60 Fed. Reg. at 40,252. 
2

Subsection (c) requires executive agencies to “promulgate regulations to implement” section 5.2, 

and it explains that these implementing regulations “may provide additional review proceedings 

beyond those required” by the Executive Order itself. Id. § 5.2(c), 60 Fed. Reg. at 40,252. It

further states that section 5.2 “creates no procedural or substantive rights.” Id. More generally, 

section 7.2 states that the Executive Order “is intended only to improve the internal management 

of the executive branch and is not intended to, and does not, create any right to administrative or 

judicial review, or any other right or benefit or trust responsibility, substantive or procedural, 

enforceable by a party against the United States, its agencies or instrumentalities, its officers or 

employees, or any other person.” Id. § 7.2(e), 60 Fed. Reg. at 40,254.

B

Mark Moyar was the Director of the United States Agency for International Development

Office of Civilian-Military Cooperation and held security clearances with both USAID and the 

Department of Defense. In 2019, DoD advised USAID that Moyar had published classified 

information and that, as a result, the Special Operations Command (SOCOM) had suspended his 

access to its facilities. In turn, USAID suspended Moyar’s clearance pending its further 

investigation. Moyar then resigned from USAID.

In 2020, Moyar obtained another security clearance from DoD through a private contractor, 

and he was later appointed to a political position at the agency. The Defense Counterintelligence 

Security Agency (DCSA), which makes eligibility decisions for DoD, made a “preliminary 

decision” to revoke Moyar’s eligibility for access to certain kinds of classified information. J.A. 

31; see also J.A. 10–11, 131. The decision rested in part on the earlier charge that Moyar had 

published classified information and on USAID’s ensuing suspension of his clearance. Because 

he was then a political appointee, Moyar left DoD in January 2021.

In February 2021, the private contractor again sponsored Moyar for a clearance. In 

December 2021, DCSA made a “preliminary determination” not to grant him access to classified 

information, for largely the same reasons supporting its preliminary revocation in 2020. J.A. 79. 

DCSA gave Moyar the opportunity to respond and to request a hearing before an administrative 

judge. DCSA stopped processing the renewed clearance request after learning that Moyar no 

longer worked for the contractor that had sponsored the request.

Throughout these proceedings, Moyar has sought records supporting the various clearance 

decisions. DCSA has provided Moyar with records that it created in connection with its 2020 and 

2021 decisions. However, DCSA has declined to provide Moyar with records created by SOCOM, 

other DoD components, or USAID. Likewise, it has declined to request records from those other 

entities, assertedly because DCSA had not relied on those documents. USAID has declined to 

provide Moyar with the records underlying its 2019 decision. USAID claimed that, because Moyar 

had resigned from USAID, it never made a final decision to revoke Moyar’s clearance, and that

section 5.2 of Executive Order 12,968 therefore did not apply.
3

C

Moyar sued DoD and USAID to obtain the disputed records. The complaint invoked

section 5.2 of the Executive Order as the source of his alleged entitlement to the documents. The 

complaint asserted claims under the Administrative Procedure Act and the Mandamus Act.

The government filed a motion to dismiss. It argued that the Executive Order is not 

judicially enforceable, that there was no final agency action reviewable through the APA, and that 

mandamus was not an appropriate vehicle for obtaining review. Opposing the motion, Moyar 

disputed these points. He further argued that, if the Executive Order were held not judicially 

enforceable, he should be granted leave to file an amended complaint invoking implementing 

regulations instead of the Executive Order.

To supplement its motion to dismiss, the government attached a declaration by Torrance 

Jones, who provided further information about how DCSA had made its relevant decisions. Moyar 

moved to strike this declaration.

The district court denied the motion to strike, granted the motion to dismiss, and made the 

dismissal with prejudice. On the merits, the court assumed that Executive Order 12,698 is 

judicially enforceable, despite “good reasons to think otherwise.” J.A. 135 n.4. But it held that 

the decisions under review were too preliminary to qualify as “determin[ations]” under section 

5.2(a)(2). Id. at 135. The court dismissed with prejudice based on its view that an amended 

complaint could not “cure the deficiencies” it had identified. Id. at 139. The court acknowledged 

Moyar’s request to file an amended complaint invoking implementing regulations, but it faulted 

Moyar for failing to identify specific “regulations that would save his claim.” Id. at 139 n.8.

Moyar appealed. We have jurisdiction under 28 U.S.C. § 1291.

II

We review de novo the dismissal of a complaint for failure to state a claim, Wright v. 

Eugene & Agnes E. Meyer Found., 68 F.4th 612, 619 (D.C. Cir. 2023), and we review a decision 

to dismiss with prejudice for abuse of discretion, Cohen v. Bd. of Trs., 819 F.3d 476, 479, 484 

(D.C. Cir. 2016). When evaluating the merits of a dismissal, we may consider any ground

preserved in the district court. See United States ex rel. Heath v. AT&T, Inc., 791 F.3d 112, 123 

(D.C. Cir. 2015). If a district court inadequately explains the decision to make a dismissal with 

prejudice, we may vacate the judgment and remand with instructions to further explain the decision 

or else to dismiss without prejudice. See, e.g., Belizan v. Hershon, 434 F.3d 579, 583–84 (D.C. 

Cir. 2006); Confederate Mem’l Ass’n v. Hines, 995 F.2d 295, 300–01 (D.C. Cir. 1993).

III

A

Moyar contends that the district court erroneously (1) dismissed the complaint based on an 

argument not raised in the motion to dismiss and (2) failed to strike the Jones Declaration. The 
4

government responds that dismissal was proper because the Executive Order creates no judicially 

enforceable rights. Taking the complaint as pleaded, we agree with the government.

The complaint rests entirely on section 5.2 of the Executive Order. But section 5.2 

unambiguously says that “[t]his section ... creates no procedural or substantive rights.” Exec. 

Order No. 12,968 § 5.2(c), 60 Fed. Reg. at 40,252. Moreover, section 7.2(e) states that the entire 

Executive Order governs only “the internal management of the executive branch” and creates no 

“right to administrative or judicial review” enforceable against the government. Id. § 7.2(e), 60 

Fed. Reg. at 40,254.

When an executive order states that “its purpose was only for internal management and 

that it created no private rights,” agency compliance with the order is “not ... subject to judicial 

review.” Meyer v. Bush, 981 F.2d 1288, 1296 n.8 (D.C. Cir. 1993). “Such orders simply serve as 

presidential directives to agency officials to consider certain policies when making regulatory 

decisions. They do not create free-standing private rights to enforce such policies because an 

executive order is not ‘law’ within the meaning of the Constitution or the APA.” California v. 

EPA, 72 F.4th 308, 318 (D.C. Cir. 2023). Under these principles, Executive Order 12,968 creates 

no judicially enforceable rights—as one of our sister circuits has summarily concluded. Romero 

v. DoD, 527 F.3d 1324, 1330 n.1 (Fed. Cir. 2008).

Moyar’s counterarguments are unavailing. He contends that the question of judicial 

enforceability is not properly before us because the district court did not reach it. But the

government pressed that issue below and here, and we may affirm based on any ground preserved 

below and supported by the record. See AT&T, Inc., 791 F.3d at 123. Moyar further invokes the 

APA and mandamus. We have already rejected attempts to enforce internal-management 

executive orders through the APA, see Air Transp. Ass’n of Am. v. FAA, 169 F.3d 1, 8–9 (D.C. 

Cir. 1999), and enforcement through mandamus is no different. The fundamental problem with 

Moyar’s complaint is not the lack of a cause of action, which the APA or mandamus might 

provide—although we do not prejudge that question. Cf. Haleem v. DoD, 1:23-cv-1471, 2024 WL 

230289, at *13–14 (D.D.C. Jan. 22, 2024) (holding that a similar claim could not be brought under 

the APA). The problem is that, on the merits, Moyar has failed to allege the violation of any 

judicially enforceable right.

Because the Executive Order creates no judicially enforceable rights, we need not address 

Moyar’s principal arguments. In particular, we do not consider whether the clearance decisions 

under review were determinations within the meaning of section 5.2(a)(2) or whether the district 

court properly reached out to decide that unbriefed issue. Likewise, we do not decide whether the 

court permissibly declined to strike the Jones Declaration, which has no bearing on the question 

whether the Executive Order is judicially enforceable. 

B

Moyar contends that the district court, rather than dismissing with prejudice, should have 

allowed him to amend his complaint to invoke agency regulations implementing the Executive 

Order. We hold that the court did not adequately explain its decision to make the dismissal with 

prejudice, so we remand for the court to further explain its decision or to dismiss without prejudice.
5 

The standard for dismissal with prejudice “is high”—it is appropriate only if an amended 

pleading “‘could not possibly cure the deficiency’” warranting dismissal in the first place. Belizan, 

434 F.3d at 583 (quoting Firestone v. Firestone, 76 F.3d 1205, 1209 (D.C. Cir. 1996)). By its 

terms, section 5.2 requires agencies to promulgate implementing regulations, which “may provide 

additional review proceedings beyond those required” by section 5.2 itself. Exec. Order 12,968 

§ 5.2(c), 60 Fed. Reg. at 40,252. So, the fact that the Executive Order itself is not judicially 

enforceable says nothing about whether agency implementing regulations are judicially 

enforceable. Likewise, the fact that the decisions under review may not be determinations within 

the meaning of the Executive Order (a question we do not reach) says nothing about whether 

implementing regulations may cover decisions like the ones under review and, if they do, whether 

there is some cause of action to redress any regulatory violations. 

The district court stated that an amended complaint “cannot cure the deficiencies” in the 

current one, and it faulted Moyar for not identifying what specific implementing regulations an 

amended complaint might invoke. J.A. 139 & n.8. But the record identified a possibly relevant

implementing regulation, DoD Directive 5220.6, which governs clearance reviews for employees

of government contractors. And the district court itself cited to and quoted from that directive. 

See id. at 138 n.5. Section 6.1 of the DoD Directive references DoD Manual 5200.02, which 

governs clearance reviews for agency personnel.1

 And section 10.2(b)(2) of the DoD Manual

states that individuals seeking clearances have a “right” to request the records “upon which the 

unfavorable national security determination was made.” We do not prejudge the question whether 

this “right” extends to the decisions under review or, if it does, whether it is enforceable through 

the APA or mandamus. But because the district court failed to address that question, we hold that 

its futility analysis was incomplete, and its decision to dismiss the complaint with prejudice was 

premature.

For these reasons, we vacate the district court’s judgment and remand the case for further 

proceedings or explanation. In particular, the district court should either elaborate on its reasons

for dismissing this case with prejudice or else make the dismissal without prejudice. See Belizan, 

434 F.3d at 584; Confederate Mem’l, 995 F.2d at 301. The Clerk is directed to withhold issuance 

of the mandate until seven days after resolution of any timely petition for rehearing or rehearing 

en banc. See Fed. R. App. P. 41(b); D.C. Cir. R. 41(a)(1). 

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk 

BY: /s/

Daniel J. Reidy

Deputy Clerk 

1

 Section 6.1 of the DoD Directive references a document titled “DoD 5200.2-R,” which was 

superseded by DoD Manual 5200.02.