Posted by Jonathan Adler:
Jurisdiction v. Justiciability:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250595302
On Friday, in [1]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.
References
1. http://pacer.cadc.uscourts.gov/common/opinions/200908/08-5403-1201059.pdf
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