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 socalled “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 nonmerits 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.