Tenet v. Doe
544 U.S. ___ (2005)

Annotate this Case

544 U. S. ____ (2005)
TENET V. DOE
544 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-1395

GEORGE J. TENET, INDIVIDUALLY, PORTER J. GOSS, DIRECTOR OF CENTRAL INTELLI- GENCE AND DIRECTOR OF THE CEN- TRAL INTELLIGENCE AGENCY, AND UNITED STATES, PETITIONERS v. JOHN DOE et ux.

on writ of certiorari to the united states court of appeals for the ninth circuit

[March 2, 2005]

   Justice Scalia, concurring.

   I join the Court’s opinion because I do not agree with Justice Stevens’s concurrence, painting today’s action as a vindication of his opinion concurring in the judgment in Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 112 (1998), in which he would have held that a jurisdictional bar does not prevent the resolution of a merits issue. When today’s opinion refers to the issue in Totten v. United States,92 U. S. 105 (1876), as “the sort of ‘threshold question’ we have recognized may be resolved before addressing jurisdiction,” ante, at 5, n. 4, it is surely not referring to the run-of-the-mill, nonthreshold merits question whether a cause of action exists. And when it describes “the unique and categorical nature of the Totten bar—a rule designed not merely to defeat the asserted claims, but to preclude judicial inquiry,” ibid., it is assuredly not describing the mere everyday absence of a cause of action. As applied today, the bar of Totten is a jurisdictional one.

   Of course even if it were not, given the squarely applicable precedent of Totten, the absence of a cause of action is so clear that respondents’ claims are frivolous—establishing another jurisdictional ground for dismissal that the Steel Co. majority opinion acknowledges. See 523 U. S., at 89.

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