# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 17, 2009 Decided August 14, 2009

No. 08-5403

S ARAH E. O RYSZAK

, A PPELLANT

v.

M ARK S ULLIVAN

, D IRECTOR

, U NITED S TATES S ECRET S ERVICE

, A PPELLEE

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: G INSBURG , R OGERS , and K AVANAUGH

, Circuit Judges

. ∗

Opinion for the Court filed by Circuit Judge G INSBURG

.

Concurring opinion filed by Circuit Judge G INSBURG

.

G INSBURG

, 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 cu rrency.” 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 Ac t, 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 K AVANAUGH 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 secur ity 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 that3

complaint for lack of subject matter jurisdiction per F ED

. R.
C IV

. P. 12(b)(1) or, in the alternative, for failure to state a claim, per F ED

. R. C IV

. P. 12(b)(6). The district court, concluding the decision was co mmitted 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 c ourt. 565 F. Supp. 2d at 16-17

. We affirm that court’s order dismissing Oryszak’s complaint, but issue this opinion to clarif y that the complaint should be dismissed not for want of subj ect 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 e rroneously dismissed the action pursuant to Rule 12(b)(1), we could nonetheless affirm the
dismissal if dismissal were ot herwise proper based on failure
to state a claim under Federa l Rule of Civil Procedure 12(b)(6)”).

* * *

The district court dismisse d the complaint for lack of jurisdiction on the grou nd 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 s ubject to the APA. See 5 U.S.C. § 701(a)(2) (providing the APA do es not apply to “agency action ... committed to agency discretion by law”). We agree
with the district court that th e decision of the Secret Service was committed to agency discretion, although we conclude this is not a jurisdictional bar.

The jurisdiction of the dist rict court did not depend upon the APA, which “is not a juri sdiction-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” stat ute, 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 “conf er[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 jurisdic tion over his case pursuant to5

§ 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 jurisdic tional 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 gran t of security clearance to a particular employee, a sensitiv e 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. C ONST

., Art. II, § 2, the President has constitutional authority, subject to appropriate limitation by th e Congress, “to classify and control access to information bearing on national security and
to determine whether an individu al 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 ma rgin 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 prio r 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 secu rity inherent in granting any particular individual access to classified information. 484 U.S. at 529. Here, the Secr et 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 accepta ble 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 constitu tional 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[] arisi ng 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 provi des 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 cl aim 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 br each judicially determined, and whether protection for the right asserted can be judicially molded”).G INSBURG

, 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 Bran ch and involves the complex area of foreign relations and national security, employment
actions based on denial of secur ity 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 actiona ble 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 cl arify. Upon a proper motion, a
court should dismiss the case for fa ilure to state a claim. It follows, however, that a court must decline to adjudicate a nonjusticiable claim even if th e defendant does not move to
dismiss it under F ED

. R. C IV

. 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 repr esented 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 que stion of the district court’s subject-matter jurisdiction ... before considering whether the complaint presents a nonjustici able political question”);
Public Citizen v. U.S. Dist. Court , 486 F.3d 1342, 13472

(2007) (noting “a federal c ourt 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 jurisd iction is special for many purposes ... a court [may inst ead] 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 ‘threshol d 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 th at it has jurisd iction does not render the question jurisdictiona l 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 questi on whether that sort of claim presents a nonjusticiable polit ical question. A court might thereby avoid a const itutional ruling rega rding 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-establis hed 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 th e 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.