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Jurisdiction v. Justiciability:

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.

Hannibal Lector:
IANAL: Does this decision allow the plaintiff to refile her claim as a constitutional one based on lack of due process? The facts, as presented, suggest that the appellant was the unwitting user of counterfeit currency. This seems a pretty weak excuse for depriving her of her livelihood and career.
8.18.2009 9:09am
Hannibal Lector:
I did a little internet research and get the feeling that Ms. Orszak may be the victim of a little sexism in the Secret Service:
Background Story
Orszak Letter to Alumni Magazine
There's more for anyone who cares to Google +Orszak +"Secret Service"
8.18.2009 9:19am
Joe L. (mail):
A comment on style rather than substance:

Judge Ginsburg has begun too many paragraphs with "that." Doing so is OK once and a while, but repeated instances make the opinion sound somewhat awkward.
8.18.2009 9:44am
dangerous lack of something something:
Hannibal, if I take the devil's advocate position, I would argue that if someone really wanted to get their hands on some fake money as well as the details on how to make/spend it, I would have them get a SS job. Now the facts don't look anything like my assertion, so it's pretty weak sauce. But I see where the SS would want some discretion to hire/fire based on one of their major job responsibilities.
8.18.2009 10:04am
Steve:
I don't think I have ever previously seen a judge write both the opinion of the court and a second concurring opinion. Is there some arcane reason it was done that way?
8.18.2009 10:51am
troll_dc2 (mail):

I don't think I have ever previously seen a judge write both the opinion of the court and a second concurring opinion. Is there some arcane reason it was done that way?



Justice Blackmun did it too. See Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).

He did it because he got five votes for the due process ruling and four votes (including one justice who was not part of the five) for the equal protection argument.
8.18.2009 11:20am
ShelbyC:

For that reason, I urge the en banc court to clarify the relationship of justiciability to jurisdiction when an appropriate case arises.


Isn't the relationship that justiciablity is prerequisite to the case or controversy requirement of Art III? Is it more complicated than that?
8.18.2009 11:42am
To the contrary:
DHG states at the end of his separate opinion:

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.

I don't think that an en banc ruling would really fix things, though; even if he views justiciability (in particular, the political question doctrine) as non-jurisdictional, the Supreme Court hasn't always taken that view. Here's the discussion in Bancoult, citing to Schlesinger in 1974:

As we recently stated, "the courts lack jurisdiction over political decisions that are by their nature `committed to the political branches to the exclusion of the judiciary.'" Schneider v. Kissinger, 412 F.3d 190, 193 (D.C.Cir.2005) (quoting Antolok v. United States, 873 F.2d 369, 379 (D.C.Cir.1989) (opinion of Sentelle, J.)). The political question doctrine is one aspect of "the concept of justiciability, which expresses the jurisdictional limitations imposed on the federal courts by the `case or controversy' requirement" of Article III of the Constitution. Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974); see also Hwang Geum Joo v. Japan, 413 F.3d 45, 47-48 (D.C.Cir.2005).

Schlesinger also states that the "presence of a political question suffices to prevent the power of the federal judiciary from being invoked by the complaining party."
Even the Joo case DHG cites earlier (to support his claim that the Court "has been careful to distinguish" between the two concepts) treats it as jurisdictional, even if not a question of subject matter jurisdiction:

Moreover, Steel Co. "does not dictate a sequencing of jurisdictional issues." ... Likewise, we need not resolve the question of the district court's subject-matter jurisdiction under 28 U.S.C. ยง 1330 ... before considering whether the complaint presents a nonjusticiable political question...

So... pretty much an unnecessary separate opinion.
8.18.2009 11:47am
Dave N (mail):
I don't think I have ever previously seen a judge write both the opinion of the court and a second concurring opinion. Is there some arcane reason it was done that way?
I am guessing that Judge Ginsburg wrote a concurrence because he was using the case to suggest a policy change that a three judge panel could not make and which did not belong in the main opinion.

I have seen it before (but can't find the cites off the top of my head) but I agree it is unusual.
8.18.2009 12:11pm
Steve:
Justice Blackmun did it too.

That's interesting. I guess I've always seen it where there will be a single opinion, but certain Justices will only join as to Parts I and II or whatever.

Adding to my confusion is that it's unclear to me why the other judges on the panel wouldn't agree with Judge Ginsburg's separate opinion.
8.18.2009 12:13pm
Jay:
Hannibal Lector--
I haven't followed this case, but in general, the fact that something is a constitutional claim doesn't keep it from being a nonjusticiable political question. For example, the case in the last few years where someone claimed that both houses of Congress hadn't voted on the same bill, or various foreign policy-related cases.
8.18.2009 2:06pm
Porkchop:
Joe L. (mail):


A comment on style rather than substance:

Judge Ginsburg has begun too many paragraphs with "that." Doing so is OK once and a while, but repeated instances make the opinion sound somewhat awkward.


Or maybe, "once in a while."
8.18.2009 2:16pm
Hannibal Lector:
Jay: Thanks.
8.18.2009 3:34pm

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