A federal appeals court ruled today that the Secret Service, which investigates counterfeit currency when it's not protecting presidents and their families, was within its discretion when it dismissed a special agent who had used phony $20 bills.
The problems for Sarah Oryszak began in late March 2006, after completing a three-month Secret Service training program in which she was at the top of her class.
Oryszak returned to her home in Gaithersburg, Md., where she cashed a check at a bank and received a $100 bill, according to court papers that describe the facts in the case, which are not in dispute. Oryszak then drove to Buffalo, N.Y., to visit her mother, and she used the $100 bill to pay for lunch on April 3. She got four $20 bills in change.
Over the next day and a half, Oryszak and her sister used the $20 bills to buy over-the-counter pain medication, fruit, gasoline, and other items at a Wal-Mart, a grocery store, and a gas station.
She “never observed, at any time, that the $20 bills she passed were counterfeit,” according to a civil complaint (pdf) against the Secret Service filed by her lawyer, solo practitioner Sheldon Cohen of Arlington, Va. Moreover, Cohen wrote, Oryszak “would have received a monetary award from the Agency far greater than the value of the counterfeit currency had she turned the bills into the Agency.”
A few days later, Oryszak got a call from her sister. A police detective had called after getting the sister’s information from a “bonus card” she had used at the grocery store.
Oryszak returned to the Secret Service’s training center in Washington on April 10, and the next day her superiors placed her on administrative leave. The agency revoked her top secret security clearance on Sept. 12 for having “knowingly passed counterfeit currency,” and she lost her job in June 2007 after exhausting her administrative appeals.
Oryszak sued in U.S. District Court for the District of Columbia, arguing that the revocation of her security clearance was “arbitrary, capricious, an abuse of discretion, unsupported by substantial evidence, and unwanted by the facts.” She said she never had training in recognizing or detecting counterfeit currency.
In moving (pdf) to dismiss Oryszak’s complaint, Justice Department lawyers didn’t address whether she knew the $20 bills were counterfeit. The whole process for determining security clearances, they wrote, could not be reviewed by the courts because of the president’s constitutional authority as commander in chief, as interpreted by the Supreme Court in Department of the Navy v. Egan (1988).
“The grant or denial of a security clearance to a particular person is a paradigmatic example of the sort of case in which the courts lack any meaningful standards by which it could second-guess the decision of the Executive Branch,” wrote Justice Department lawyers Susan Rudy and Joel McElvain.
U.S. District Judge John Bates agreed with the government in July 2008, ruling (pdf) that he had no jurisdiction to hear Oryszak’s case.
A unanimous three-judge panel for the U.S. Court of Appeals for the D.C. Circuit upheld the dismissal, though for a different reason. In a seven-page ruling (pdf) issued today, Judge Douglas Ginsburg wrote that the district court has jurisdiction but that, barring a constitutional claim, it must defer to the discretion of the executive branch to determine who gets a security clearance. Therefore, he wrote, Oryszak failed to state a claim for which the court could grant relief.
Judges Brett Kavanaugh and Judith Rogers concurred.
In an unusual postscript, Ginsburg filed not only the panel’s opinion but also a concurrence, emphasizing the difference between lack of jurisdiction based on subject matter and “nonjusticiability” based on failure to state a claim. “We have not always been consistent in maintaining these distinctions,” he wrote. “For that reason, I urge the en banc court to clarify the relationship of justiciability to jurisdiction when an appropriate case arises.”
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