The opinion of the court was delivered by: John D. Bates United States District Judge
Plaintiff Sarah Oryszak seeks judicial review of the Secret Service's revocation of her top secret security clearance pursuant to the Administrative Procedure Act, 5 U.S.C. § 702. Defendant Mark Sullivan, Director of the United States Secret Service ("the Director"), moves to dismiss the complaint for lack of subject matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), or, in the alternative, to dismiss the complaint for failure to state a claim, see Fed. R. Civ. P. 12(b)(6). Upon careful consideration, the Court will grant the Director's motion to dismiss for lack of subject matter jurisdiction for the reasons explained below.
The key facts in this case are undisputed. Before June 17, 2007, Oryszak had been employed as a Special Agent with the Secret Service for two years. Compl. ¶¶ 4, 13. An essential requirement of the position of Special Agent is the possession of a top secret security clearance. Id. ¶ 34. Oryszak was granted a top secret security clearance in June 2003. Id. ¶ 11. Because Oryszak did not successfully complete all of her federal law enforcement training on the first attempt, she was initially assigned to perform various administrative tasks. Id. ¶¶ 15-16. Her duties included, among others, date-stamping and sorting counterfeit currency attached to Counterfeit Note Reports and preparing paperwork to be sent back to banks along with genuine currency. Id. ¶ 17. She performed these duties for a period of at least three months while waiting to return to training. Id. ¶ 18. Oryszak completed her training on March 29, 2006. Id. ¶ 18.
She returned home the next day and cashed a check at a bank, receiving a $100 bill in return. Id. ¶ 19. A few days later, she paid for lunch using that $100 bill and received four $20 bills as change. Id. ¶ 20. After spending the four $20 bills on various purchases, id. ¶¶ 21-22, two of the bills were discovered to be counterfeit: one bill was immediately detected as being counterfeit by a store clerk and the other was detected as counterfeit by the cashier later in the day, id. ¶ 25. When the counterfeit bills were traced back to Oryszak, she was sent home on April 11, 2006 and placed on administrative leave during the pendency of the agency's investigation into the passing of the counterfeit currency. Id. ¶ 27.
On September 12, 2006, the Secret Service revoked her top secret security clearance after completing its investigation, finding that Oryszak had "knowingly passed counterfeit currency." Id. ¶ 29. Oryszak administratively appealed the revocation determination, id. ¶ 29, and she received a Notice of Review on January 7, 2007, stating that the Secret Service had upheld the revocation of her security clearance, id. ¶ 30. Oryszak appealed that Notice of Review to the Security Appeals Board ("Board"), id. ¶ 31, and the decision was upheld again on May 3, 2007, id. ¶ 32. Because Oryszak no longer held the top secret security clearance required for the position of Special Agent, the Secret Service terminated her employment. Id. ¶ 34.
Oryszak has exhausted her administrative remedies, id. ¶ 33, and now comes before this Court seeking judicial review of the administrative decision to revoke her security clearance. She contends that the Board's determination is a final agency action that violates the APA because the decision was "arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and unwanted [sic] by the facts." Id. ¶ 36. See also 5 U.S.C. § 706. Oryszak seeks to have the Board's decision reversed, to have her top secret security clearance and position as Special Agent reinstated, and to be awarded back pay and benefits.
"[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Leatherman v. Tarrant Cty. Narcotics and Coordination Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979). Therefore, the factual allegations must be presumed true, and plaintiff must be given every favorable inference that may be drawn from the allegations of fact. Scheuer, 416 U.S. at 236; Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). However, the Court need not accept as true "a legal conclusion couched as a factual allegation," nor inferences that are unsupported by the facts set out in the complaint. Trudeau v. Federal Trade Comm'n, 456 F.3d 178, 193 (D.C. Cir. 2006) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Under Rule 12(b)(1), the party seeking to invoke the jurisdiction of a federal court --plaintiff here -- bears the burden of establishing that the court has jurisdiction. See US Ecology, Inc. v. U.S. Dep't of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000); see also Grand Lodge of Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 13 (D.D.C. 2001) (a court has an "affirmative obligation to ensure that it is acting within the scope of its jurisdictional authority."); Pitney Bowes, Inc. v. United States Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C. 1998). "'[P]laintiff's factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion' than in resolving a 12(b)(6) motion for failure to state a claim." Grand Lodge, 185 F. Supp. 2d at 13-14 (quoting 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (2d ed. 1987)). Additionally, a court may consider material other than the allegations of the complaint in determining whether it has jurisdiction to hear the case, as long as it still accepts the factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249, 1253-54 (D.C. Cir. 2005); EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 n.3 (D.C. Cir. 1997); Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.1992).
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court is mindful that all that the Federal Rules of Civil Procedure require of a complaint is that it contain "'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. ___, 127 S.Ct. 1955, 1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); accord Erickson v. Pardus, 551 U.S. ___, 127 S.Ct. 2197, 2200 (2007) (per curiam). "A Rule 12(b)(6) motion tests the legal sufficiency of a complaint." Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). Thus, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp., 127 S.Ct. at 1965 (citations omitted).
In general, the APA provides for judicial review of final agency action. See 5 U.S.C. § 702. Final agency actions carry a presumption of reviewability by the courts. See Dunlop v. Bachowski, 421 U.S. 560, 567 (1975); Heckler v. Chaney, 470 U.S. 821, 830 (1985). Judicial review is unavailable as a matter of course, however, when "(1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." 5 U.S.C. § 702(a)(1)-(2). Here, there is no federal statute that expressly precludes judicial review of an agency's decision to revoke an employee's security clearance, so the Court will focus on the second exception. The Director contends that "the determination whether to grant or to revoke a security clearance is committed by law to the discretion of the Executive Branch." Def.'s Mot. at 1. The Court agrees.
The APA preclusion of judicial review when "agency action is committed to agency discretion by law," 5 U.S.C. § 701(a)(2), applies when "there is no law to apply" in a given case. Citizens to Pres. Overton Park v. Volpe, 401 U.S. 402, 410 (1971) (internal quotation omitted). Without any law to apply, a court has no basis from which to proceed to review the agency's decision. In this case, Oryszak has failed to identify a statute that provides "judicially manageable standards" that would permit this Court to review the agency's determination. Heckler, 470 U.S. at 830. Oryszak's inability to locate such a statute is to be expected, however, for no such statute exists. The agency's authority to grant and revoke security ...