On Friday, in Oryszak v. Sullivan, the U.S. Court of Appeals for the D.C. Circuit rejected a secret service agent's challenge to the revocation of her security clearance, and consequent dismissal. Judge Ginsburg wrote the majority opinion, but also wrote a separate opinion arguing that a case's lack of justiciability does not necessarily indicate a lack of jurisdiction, and urges the court to clarify the issue en banc when presented with an "appropriate case."
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). . . .
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. . . .
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. . . . 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.
We have not always been consistent in maintaining these distinctions. . . . For that reason, I urge the en banc court to clarify the relationship of justiciability to jurisdiction when an appropriate case arises.