 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued March 12, 2015              Decided September 18, 2015

                         No. 14-5002

                   WAYNE M. ANDERSON,
                      APPELLANT

                              v.

    ASHTON B. CARTER, SECRETARY OF DEFENSE, ET AL.,
                      APPELLEES


        Appeal from the United States District Court
                for the District of Columbia
                    (No. 1:12-cv-01243)


    Jeffrey L. Light argued the cause and filed the briefs for
appellant.

    Bruce D. Brown and Gregg P. Leslie were on the brief for
amicus curiae The Reporters Committee for Freedom of the
Press in support of appellant.

     Wayne H. Williams, Special Assistant U.S. Attorney, argued
the cause for appellees. With him on the briefs were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence and Jane M.
Lyons, Assistant U.S. Attorneys.

   Before: HENDERSON and SRINIVASAN, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
                                2

   Opinion for the Court filed by Senior Circuit Judge
SENTELLE.

    Opinion concurring in part and dissenting in part filed by
Circuit Judge SRINIVASAN.

     SENTELLE, Senior Circuit Judge: Appellant Wayne M.
Anderson is a freelance journalist. In July of 2010, he was
working as an embed journalist at a NATO base in Afghanistan.
After he reported on a controversial shooting incident at an
adjoining Afghan national army base over the objections of
United States military personnel assigned to the NATO
operation, his embed status was withdrawn, and he was returned
to the United States. Anderson brought the present action
against the Secretary of Defense and subordinate officers in both
their personal and official capacities, seeking, as is relevant to
the present appeal, reversal of the memorandum terminating his
embed status and reinstatement of his credentials and
accommodation status. The district court dismissed appellant’s
claims in their entirety. Because we conclude that Anderson has
asserted no claim cognizable by this court, we affirm the
judgment of dismissal.

                      I. BACKGROUND

    A. Factual Allegations

    Because the basis of our decision that this case must be
dismissed for lack of jurisdiction is not dependent upon any
detail of the underlying facts, our discussion will be brief.
Further detail may be found in the district court’s opinion. See
Anderson v. Gates, 20 F. Supp. 3d 114 (D.D.C. 2013).

    In 2010, Anderson, a freelance journalist working under
contract for a Washington, DC, newspaper, applied for status of
                                 3

a military-embed journalist in Afghanistan with the North
Atlantic Treaty Organization (“NATO”) International Security
Assistance Force, an international force created by the United
Nations Security Council to assist in maintaining security in
Afghanistan. In process of becoming an embedded reporter,
Anderson signed and submitted an acknowledgment of the
“Media Ground Rules” required by the International Security
Assistance Force. That acknowledgment included a statement
by the embed journalist that:

    I have read the media ground rules provided to me by
    International Assistance Force Afghanistan (ISAF) Public
    Affairs staff and agree, with my signature, to abide by them.
    I also understand that any violation of these ground rules is
    cause for the revocation of my accommodated media status
    with ISAF.

     In July of 2010, during his first week as an embedded
reporter, Anderson videotaped and photographed casualties from
a shooting incident near the base where he was assigned.
According to defendants, the video showed the identifiable faces
of wounded soldiers. He posted the video on YouTube without
receiving consent from the soldiers and before their next of kin
could be notified, all in violation of the Ground Rules.
Anderson disputes the accusation that his photographs and video
product revealed the identity of the soldiers. Neither we nor the
district court need resolve that factual dispute in order to dispose
of this litigation.

     A few days after the photographing and videoing incident,
Colonel Hans E. Bush reviewed a request to terminate
Anderson’s accommodated status based on his alleged violation
of the Ground Rules. Colonel Bush found that plaintiff had
violated the Ground Rules and approved the termination. As a
result of termination of his status, the military returned
                                4

Anderson to the United States. Upon his return, he appealed the
termination through the International Security Assistance Force
Public Affairs channels. In January of 2011, Colonel Gregory
Julian, Chief of Public Affairs of the Supreme Headquarters
Allied Powers Europe and Allied Command Operations, denied
Anderson’s appeal. Both Bush and Julian were subsequently
named as defendants in this litigation.

    B. The Litigation

     Anderson, at that time acting without counsel, filed a three-
count complaint in the United States District Court for the
District of Columbia against Robert Gates, then-Secretary of
Defense; John M. McHugh, then-Secretary of the Army;
Colonels Bush and Julian; and Colonel Sean Mulholland. The
complaint purported to seek relief against defendants in both
their individual and official capacities. See Anderson, 20 F.
Supp. 3d at 119. Count I of the complaint alleged that
defendants in their individual capacities violated Anderson’s
First Amendment rights by terminating his status in retaliation
for his constitutionally protected speech, and by refusing or
neglecting to prevent such deprivations or denials of his First
Amendment rights. Count II alleged a breach-of-contract claim
based on the theory that the defendants had breached an
agreement arising from the acknowledgment of the “Ground
Rules.” Count III sought “a judicial declaration that defendants’
conduct deprived Anderson of his rights under the U.S.
Constitution and the laws of the United States.” Id. (quoting
Anderson’s complaint at ¶ 63).

     All defendants moved to dismiss “for lack of personal
jurisdiction over defendants in their individual capacities under
Federal Rules of Civil Procedure 12(b)(5) and 12(b)(2), for
failure to state a claim upon which relief can be granted under
Rule 12(b)(6), and for lack of subject-matter jurisdiction under
                                 5

Rule 12(b)(1).” Id. The district court granted the motion and
dismissed the action. Anderson filed the present appeal.

                        II. THE APPEAL

     On appeal, Anderson, now acting through counsel, alleges
no error in the dismissal of the claims against the defendants in
their individual capacities. Indeed, he acknowledges that “[t]his
appeal is limited to a suit against [d]efendants-[a]ppellees in
their official capacities . . . .” Reply Br. at 16. Of course, even
without the acknowledgment, any error not asserted and argued
on appeal is deemed forfeited. We therefore confine our
discussion to the claims against defendants in their official
capacities.

     Briefly put, appellant is now arguing that he has sufficiently
alleged “a claim for retaliation under the First Amendment and
a claim for violation of the Administrative Procedure Act.”
Appellant’s Br. at 9. As in all cases, our first duty is to ascertain
whether the district court, and derivatively this court, have
jurisdiction to determine those claims. See, e.g., Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–101 (1998). For
two reasons, we conclude that appellant’s claims are not within
the jurisdiction of the courts.

                         III. ANALYSIS

     The Supreme Court has taught in Steel Co. and numerous
other cases that when a federal court has no jurisdiction over a
case, it cannot determine any other question concerning the
merits of that action. However, since the two grounds affecting
our decision in this action are equally threshold questions, we
will observe that appellant’s claims founder on either or both of
them.
                                6

     First, appellant’s allegations do not bring his claims within
the jurisdictional statute he asserts. Briefly put, this action is
barred by the sovereign immunity of the United States.
Appellant forthrightly admits that, as he has asserted no error in
the district court’s dismissal of the claims against the individual
defendants, “[t]his appeal is limited to a suit against the
[d]efendants-[a]ppellees in their official capacities and therefore
the suit is subject to governmental defenses including sovereign
immunity.” Reply Br. at 16 (citing Kentucky v. Graham, 473
U.S. 159, 166–67 (1985)). What appellant does not concede, but
what is correct, is that an action against the United States cannot
surpass the barrier of sovereign immunity without a statutory
waiver. “It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a
prerequisite for jurisdiction.” United States v. Mitchell, 463
U.S. 206, 212 (1983). The government’s consent to be sued
may not be inferred, but must be “unequivocally expressed” in
statutory text. Fed. Aviation Admin. v. Cooper, 132 S. Ct. 1441,
1448 (2012). “Moreover, a waiver of the Government’s
sovereign immunity will be strictly construed, in terms of its
scope, in favor of the sovereign.” Lane v. Pena, 518 U.S. 187,
192 (1996).

     Appellant asserts that his claim is cognizable under the
Administrative Procedure Act (“APA”), 5 U.S.C. § 702.
Unfortunately for appellant, that statute does not waive
sovereign immunity for the present claims. We note in
considering Anderson’s argument that it is not at all clear that he
actually asserted this position below, but affording as we do
lenience in our review of the pleading of pro se litigants, as
appellant then was, we will at least consider the argument for the
APA as an applicable exception to sovereign immunity. Having
so considered, we determine that the APA excludes the present
action by its terms.
                                7

     The APA, in 5 U.S.C. § 701, provides review of actions of
an agency of the United States. See 5 U.S.C. § 701(b)(1). The
statutory definition of “agency” expressly “does not include —
military authority exercised in the field in time of war.” Id.
§ 701(b)(1)(G). From the very face of the complaint, all of the
events surrounding the controversy between the embed
journalist and the military occurred within that excluded
circumstance. While certainly the conflict in Afghanistan was
not a declared war, it cannot be gainsaid that it was a “war”
nonetheless. As the Supreme Court noted in Bas v. Tingy, 4
U.S. 37, 40 (1800), “hostilities may subsist between two
nations” on a limited basis, which would be properly termed
“imperfect war,” in our era to be called “undeclared war.”
Justice Washington in the Bas decision went on to note that the
true definition of war is “an external contention by force,
between some of the members of the two nations, authorised by
the legitimate powers,” even if it is not a “perfect” declared war.
Id. at 40–41. In the present case, the facts relied upon by
appellant, including the wounding of the soldiers whose
photographs were at issue between Anderson and the military
make it clear that, like the French in Bas v. Tingy, the Afghans
in the present case are enemies of the United States, and the
military authority against which Anderson seeks to litigate was
being exercised in the field and time of war. In short, the APA
does not provide a waiver of the sovereign immunity defense
creating jurisdiction over Anderson’s cause.

     Despite the clear terms of the statute, appellant asserts that
the military authority exception does not preclude judicial
review of the decision to terminate his embed status. While
appellant’s brief does not provide a succinct expression of why
the exception does not apply, the gist of his argument seems to
be that the statutory exception should only apply when
attempted litigation “involves military decisionmaking.” Reply
Br. at 12. Appellant argues that his case does not come within
                                8

that category, as he “does not ask for judicial review of the rules
contained in the MGR,” nor “encroach[ ] on issues such as how
a military leader ‘handles a casualty of one of the men or women
he is charged to lead,’” nor “how a military leader should handle
a casualty.” Id. at 13.

        Perhaps if the statutory exception to the APA waiver of
sovereign immunity were so limited, appellant might have a
colorable argument, albeit one he did not raise in the district
court. But the statute is not so limited. It says what it says.
Courts “assume that Congress means what it says in a statute
. . . .” Williams v. Paromo, 775 F.3d 1182, 1188 (9th Cir. 2015).
The current litigation does not come within the terms of
reviewing an agency under the APA. Sovereign immunity is not
waived.

     As we noted above, “a waiver of the government’s
sovereign immunity will be strictly construed, in terms of its
scope, in favor of the sovereign.” Lane, 518 U.S. at 192. We
cannot afford the statute the liberal and countertextual
interpretation forwarded by appellant. We do not have
jurisdiction.

     We do not rule out the possibility that under other
circumstances and based on other pleadings a plaintiff similarly
situated to appellant might bring a retaliatory claim for violation
of First Amendment rights within the jurisdiction of the court,
but this is not that case. While appellant’s lengthy complaint in
the district court cited the First Amendment and alleged its
violation in general terms, ultimately his prayer for relief made
it plain that his complaint was for a lack of “procedural due
process,” not for the violation of his First Amendment rights.
For the procedural due process claim to have any legs at all,
appellant would have had to establish that he was deprived of
something to which he was constitutionally entitled. As he has
                                 9

shown no constitutional entitlement to the status of embed
journalist, his claim did not survive the motion to dismiss in the
district court, nor will it survive the lack of jurisdiction in face
of sovereign immunity in this court. Cf. Flynt v. Rumsfeld, 355
F.3d 697 (D.C. Cir. 2004) (holding that a journalist has no
constitutional right to be actively embedded in military units).

    C. Mootness

    While the Supreme Court in Steel Co. makes clear that once
we have established that we have no subject-matter jurisdiction,
we can proceed no further, we do not violate this admonition
when we observe that more than one threshold basis bars
adjudication. As we have noted before:

      While Steel Co. reasoned that subject-matter jurisdiction
    necessarily precedes a ruling on the merits, the same
    principle does not dictate a sequencing of jurisdictional
    issues. “[A] court that dismisses on . . . non-merits grounds
    such as . . . personal jurisdiction, before finding subject-
    matter jurisdiction, makes no assumption of law-declaring
    power that violates the separation of powers principles
    underlying . . . Steel Company.”

Public Citizen v. United States District Court, 486 F.3d 1342,
1346 (D.C. Cir. 2007) (quoting Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574 (1999)). We will therefore note that even if
we err in our determination that Anderson brought no justiciable
claim in the first instance, any claim which he may have asserted
is now moot.

     As Anderson himself acknowledges, “‘[a] case is moot if
events have so transpired that the decision will neither presently
affect the parties’ rights nor have a more-than-speculative
chance of affecting them in the future.’” Appellant’s Supp. Br.
                                10

at 2 (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570,
575 (D.C. Cir. 1990)). Otherwise put, “‘if an event occurs while
a case is pending on appeal that makes it impossible for the
court to grant any effectual relief whatever to a prevailing party,
the appeal must be dismissed.’” Id. (quoting Church of
Scientology v. United States, 506 U.S. 9, 12 (1992)).

     The prayer for relief in Anderson’s complaint asks the
court, in pertinent part, “to reverse the memorandum terminating
plaintiff’s embed accommodation status without procedural due
process . . . .” Appellees assert, and appellant has not disputed,
that as the war in Afghanistan has drawn down, the remaining
embed program is operated by NATO, which is not a party to
this action. Further, Anderson is at liberty to apply for the
limited embed program still available. There appears to be
nothing this court can do that will put him back in the same
position he occupied before the events alleged in the complaint
and nothing the court can do to make whole any loss caused by
the removal. He has not sought damages, nor is it clear that we
would have jurisdiction to grant them if he did. This is
quintessential mootness, and we have no jurisdiction over moot
controversies.

     Anderson attempts to escape from the trap of mootness by
asserting that his additional prayer for declaratory relief
underlies a live controversy. That is, he asserts that he has a
reputational injury which will be relieved by a judicial
declaration that his First Amendment rights were violated. In
support of this proposition, he principally relies on Foretich v.
United States, 351 F.3d 1198 (D.C. Cir. 2003). It is true, as
Anderson asserts, that we did hold in Foretich that declaratory
relief that would “remove the imprimatur of government
authority from an [a]ct that effectively denounces Dr. Foretich
as a danger to his own daughter” left open a live controversy and
escaped mootness. 351 F.3d at 1215. But the Foretich decision
                                 11

does not carry the day for Anderson.

     In that unique case, Congress had passed a bill of attainder,
and we did hold that under the extreme circumstances there
present, “where reputational injury derives directly from an
unexpired and unretracted government action, that injury
satisfies the requirements of Article III standing to challenge the
action.” Id. at 1213.1

     However, a more full examination of the reasoning of
Foretich discloses that “[o]ur case law makes clear that where
reputational injury is the lingering effect of an otherwise moot
aspect of a lawsuit, no meaningful relief is possible and the
injury cannot satisfy the requirements of Article III.” Id. at
1212.

     Similarly in Foretich, we discussed Penthouse
International, Ltd. v. Meese, 939 F.2d 1011 (D.C. Cir. 1991). In
Penthouse International, “because the reputational injury . . .
was the lingering effect of an otherwise moot action, we
distinguished cases in which the reputational injury was the
‘direct effect of the legal action the government had taken.’” Id.

     Unlike Foretich, in which there remained among
congressionally enacted statutes essentially a declaration of guilt
against an untried citizen, in the present case, as in Penthouse
International, the alleged reputational injury is the “lingering
effect of an otherwise moot action,” and this case is moot.




        1
          Though the particular quote from Foretich speaks in terms of
standing rather than mootness, the decision taken as a whole is on
point to a mootness discussion.
                             12

                       CONCLUSION

    For the reasons set forth above, we affirm the judgment of
dismissal entered by the district court.
     SRINIVASAN, Circuit Judge, concurring in part and
dissenting in part: For the reasons well explained by my
colleagues, appellant’s claim under the Administrative
Procedure Act fails because the statute precludes judicial
review of “military authority exercised in the field in time of
war.” 5 U.S.C. § 701(b)(1)(G). That provision applies to
appellant’s APA claim, and I fully concur in the court’s
decision with regard to that claim. I believe, however, that
appellant also raises a First Amendment retaliation claim, and
that claim, in my view, is not moot. I therefore respectfully
dissent from the court’s affirmance of the dismissal of
appellant’s constitutional claim.

     Count one of appellant’s complaint, as the court
observes, ante at 4, alleges that defendants unconstitutionally
terminated his embed status in retaliation for his protected
First Amendment activity. That claim might ultimately fail
on the merits for a variety of reasons. But the sole question at
this stage is whether the claim should be dismissed at the
outset of the case. I believe it should survive dismissal and
would remand it to the district court for further proceedings.

     Sovereign immunity poses no obstacle to appellant’s First
Amendment claim. Ante at 5-6, 8-9. Appellant’s briefing on
appeal specifies that he seeks only equitable relief (not
damages). And as we have explained, “[i]t is well-established
that sovereign immunity does not bar suits for specific relief
against government officials where the challenged actions of
the officials are alleged to be unconstitutional.” Clark v.
Library of Congress, 750 F.2d 89, 102 (D.C. Cir. 1984).

    To the extent my colleagues believe that appellant, based
on his complaint’s prayer for relief, raises only a Fifth
Amendment due process claim rather than a First Amendment
claim, ante at 8, I read the complaint differently. The
complaint was drafted by a pro se plaintiff, and count one
speaks in the language of a First Amendment retaliation
                                2
claim, alleging that defendants “caused the termination of
[appellant’s] journalist-embed status without just cause of his
constitutionally protected speech.” J.A. 19. Even assuming
the precise language of a complaint’s prayer for relief could in
theory annul a claim raised in the body of the complaint, I do
not understand the complaint’s prayer to do so. Rather, in
addition to a general plea for the grant of any relief the court
deems appropriate, J.A. 23, the prayer seeks, among other
things, “a declaratory judgment” that the defendants “violated
the First and Fifth Amendments.” J.A. 22. That language, by
specifically referring to the First Amendment, reinforces the
First Amendment retaliation claim raised in count one.

     In my view, moreover, appellant’s First Amendment
retaliation claim has not been mooted by the drawdown of
military operations in Afghanistan. It may have become more
difficult for reporters to embed in Afghanistan, but there is no
showing that it has become “impossible.” Church of
Scientology v. United States, 506 U.S. 9, 12 (1992). It is true
that NATO, a non-party to this case, administers the embed
program; but the prior mission was also led by NATO,
leaving it unclear—at least at this stage of the proceedings—
whether the current embed requirements mark a significant
change from prior procedures. Even if there is no guarantee
that appellant would be reinstated if he were to prevail, “the
availability of a partial remedy is sufficient to prevent [a] case
from being moot.” Calderon v. Moore, 518 U.S. 149, 150
(1996) (internal quotation marks omitted). The government,
which bears the burden of demonstrating mootness, has not
shown that the transition to a NATO-led mission has made it
impossible for the court to provide any relief bearing on a
United States journalist’s ability to embed.

     Appellant also seeks declaratory relief. He may be able
to reapply to the embed program, but the order terminating his
                              3
embed status remains in effect. That order “memorializes
judgments” about him—namely, that he violated the ISAF
Ground Rules—that inflict ongoing personal and professional
harm. Foretich v. United States, 351 F.3d 1198, 1215 (D.C.
Cir. 2003).      A declaratory judgment pronouncing the
defendants’ actions unconstitutional could help restore
appellant’s reputation and status in the journalistic
community, potentially affecting his ability to obtain
employment. The harm appellant alleges is therefore not a
“lingering effect of an otherwise moot government action,” id.
at 1213, but rather is the primary and continuing effect of an
unretracted termination order. See McBryde v. Comm. to
Review Circuit Council Conduct & Disability Orders, 264
F.3d 52, 57 (D.C. Cir. 2001).

     For those reasons, I would conclude that appellant’s First
Amendment retaliation claim survives dismissal and should
be remanded to the district court for further proceedings.
