UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

 

ERIC CRODDY                                            *

817 Loma Prieta Drive                              *

Aptos, California 95003                          *

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JOHN DOE#1                                                 *

1275 K Street, N.W.                                       *

Suite 770                                                          *

Washington, D.C. 20005                              *

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JOHN DOE#2                                                 *

1275 K Street, N.W.                                       *            C.A. No. 00-0651 (EGS)

Suite 770                                                          *

Washington, D.C. 20005                              *

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JOHN DOE#3                                                 *

1275 K Street, N.W.                                       *

Suite 770                                                          *

Washington, D.C. 20005                              *

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JOHN DOE#4                                                 *

1275 K Street, N.W.                                       *

Suite 770                                                          *

Washington, D.C. 20005                              *

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JOHN DOE#5                                                 *

1275 K Street, N.W.                                       *

Suite 770                                                          *

Washington, D.C. 20005                              *

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DARRYN MITCHELL MOORE                      *

4294 Ivy Run                                                   *

Ellenwood, Georgia  30294                                    *

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v.                                                         *

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FEDERAL BUREAU OF                         *         

INVESTIGATION                                          *

Washington, D.C. 20505                              *

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UNITED STATES SECRET SERVICE            *                                 

1800 G Street, N.W.                                       *                     

Washington, D.C.  20223                             *

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DRUG ENFORCEMENT                               *

ADMINISTRATION                                                *

700 Army-Navy Drive                                           *

Arlington, Virginia 22202                          *

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JOHN AND JANE DOES#100-150                  *

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Defendants                                          *

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FIRST AMENDED COMPLAINT

      The plaintiffs John Doe#1, Eric Croddy, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore, bring this action against defendants the Federal Bureau of Investigation, the Drug Enforcement Administration and the United States Secret Service, for injunctive, declaratory and monetary relief pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the Fifth Amendment to the Constitution of the United States.

JURISDICTION

      1.   This Court has jurisdiction over this action pursuant to 5 U.S.C. § 702 and

28 U.S.C. § 1331.

VENUE

      2.   Venue is appropriate in the District under 5 U.S.C. § 703 and 28 U.S.C. § 1391.

PARTIES

      3.   Plaintiff Eric Croddy (“Croddy”) is a citizen of the United States and the State of California and resides in the State of California. He was an applicant for employment as an Intelligence Specialist for the Federal Bureau of Investigation.

      4.   Plaintiff John Doe#1 is a citizen of the United States and the State of North Carolina and resides in the State of North Carolina. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation.

      5.   Plaintiff John Doe#2 is a citizen of the United States and the State of Illinois and resides in the State of Illinois. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation.

      6.   Plaintiff John Doe#3 is a citizen of the United States and the State of Massachusetts and resides in the State of Massachusetts. He was an applicant for employment as a Special Surveillance Group Operative with the Federal Bureau of Investigation and a Special Agent of the Drug Enforcement Administration.

      7.   Plaintiff John Doe#4 is a citizen of the United States and the State of Connecticut and resides in the State of Connecticut. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation and the United States Secret Service.

      8.   Plaintiff John Doe#5 is a citizen of the United States and the State of California and resides in the State of California. He was an applicant for employment as a Special Agent of the United States Secret Service.

      9.   Plaintiff Darryn Mitchell Moore (“Moore”) is a citizen of the United States and the State of Georgia and resides in the State of Georgia. He was an applicant for employment as a Special Agent of the United States Secret Service.

      10.      Defendant Federal Bureau of Investigation (“FBI”) is a component of the United State Department of Justice and an agency of the United States.

      11.      Defendant Drug Enforcement Administration (“DEA”) is a component of the United States Department of Justice and an agency of the United States.

      12.      Defendant United States Secret Service (“USSS”) is a component of the United States Department of the Treasury and an agency of the United States.

      13. John and Jane Does #100-150 are employees of the FBI, DEA and USSS who violated the plaintiffs’ statutory, constitutional and other rights through their official and/or unofficial actions. At this time insufficient information is known to specifically identify individuals or actions.

EXECUTIVE SUMMARY

      14. The utilization of polygraph examinations by various agencies of the federal government is alleged to be used in order to ferret out the truth from those who would seek to proffer a lie, whether that be in a preemployment setting or during a counterintelligence or criminal investigation. Yet as Spinoza, one of the greatest Western thinkers and philosophers, wrote more than 300 years ago in his famous treatise "Ethica ordine geometrico demonstrata” (otherwise known as “Ethics”)(1677):

 

                  He who would distinguish the false from the true

                  Must have an adequate idea of what is false and true.

      15.      Unfortunately, in administering polygraph examinations in preemployment situations, neither the polygrapher (throughout the Complaint this term will be interposed with “examiner”) or the federal agency in which the applicant is seeking employment knows what is false or true, except to the extent told to them by the examinee-applicant. Despite the shortcomings and dangers of the polygraph the federal government continues to administer polygraph examinations to the detriment of individuals who would like nothing else but to serve the interests of the United States Government.

      16. The FBI, the DEA and the USSS use the polygraph in preemployment settings in order to indiscriminately weed out individuals who may potentially be found to have hiring problems were a complete background investigation to be conducted. This permits the agencies to avoid spending time and resources on individuals they may possibly later seek to reject from employment. As a result, however, innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name. After receiving a false-positive reading that falls outside an agency’s defined acceptable parameters, the applicant is simply left out in the cold while the agency continues to maintain the posture that the applicant is a liar. Moreover, this unfavorable and false information is often shared with other intelligence and law enforcement agencies, whether that be federal, state or local. Not only does this result in irreparable harm to these applicants, but it denies the FBI, DEA and USSS access to qualified and capable employees. Yet when it suits the federal government’s needs, an agency will not hesitate to overlook an otherwise deceptive polygraph reading or denounce the polygraph as unreliable.

      17. Many applicants for employment in the federal government have been misled to believe that the polygraph machine accurately identifies truths and falsehoods. Polygraphers, including those at the FBI, DEA and USSS, often falsely accuse applicants of deception in order to see how they will react. Others may genuinely believe the applicant is lying although they really are telling the truth. Polygraph examiners will typically tell an applicant that, for example, if they would just confess to smoking a few more marijuana cigarettes than previously admitted in writing - but to an amount still within that particular agency’s acceptable past drug use guidelines - the machine may stop reading “deception” and the examinee’s application would be back on track. Once confronted by Special Agents of the FBI, DEA or USSS that they are lying - no matter even if the applicant believes and/or knows they are telling the truth - many applicants will attempt to appease the polygrapher and even admit something that is untrue based on the examiner’s unequivocal assurances and pressure that no problems will arise. Of course, the fact that many years have passed, sometimes more than a decade, since the applicant may have last smoked marijuana, it is completely unrealistic that someone will remember whether they smoked three rather than seven marijuana cigarettes. As a result, oftentimes agencies such as the FBI, DEA or USSS will revoke the applicant’s conditional job offer solely because of what transpired during the polygraph examination, regardless of the real truth and without undertaking any efforts to arrive at an educated determination.

      18. To make matters worse, every federal agency, including the FBI, DEA and USSS, conducts and uses polygraph testing in a different fashion. No standardized guidelines are followed. For example, some testing sessions are audiotaped, others not. Some applicants are permitted a polygraph second test, others not. The inconsistencies found among federal agencies has contributed to the negative image of the polygraph and the unfairness that has arisen from its use.

      19. The polygraph, in one form or another, has been around for nearly one century. William M. Marston, J.D., Ph.D., is considered by many to be one of the fathers of the modern lie detector, and was one of the first to realize its commercial possibilities in the 1920s. Dr. Marston, under his pseudonym “Charles Moulton”, is probably more famous for having created the popular comic book character Wonder Woman. It is no coincidence that her magic lasso requires those who feel its bind to tell the absolute truth. Indeed, the validity and reliability of the polygraph machine, particularly when used for preemployment screening, is no more realistic than Wonder Woman’s lasso.

I.      BACKGROUND INFORMATION

A.  WHAT IS THE POLYGRAPH

      20. A modern polygraph machine measures respiration at two points on the body; on the upper chest (thoracic respiration), and on the abdomen (abdominal respiration). Movements of the body associated with breathing are recorded such that the rate and depth of inspiration and expiration can be measured. The polygraph machine also measures skin conductance or galvanic skin response. Electrodes attached to the subject’s fingertip or palm of the hand indicate changes in the sweat gland activity in those areas. In addition, the polygraph measures increases in blood pressure and changes in the heart rate. This measurement, known as the cardiovascular measurement, is obtained by placing a standard blood pressure cuff on the subject’s upper arm. Finally, the polygraph may also measure, by means of a plethysmograph, blood supply changes in the skin which occur as blood vessels in the skin of the finger constrict due to stimulation.

      21. A polygraph examiner purports to interpret these readings while asking a series of questions, commonly in three categories: direct accusatory questions concerning the matter under investigation, irrelevant or neutral questions, and more general “control” questions concerning wrongdoing by the subject in general. The examiner forms an opinion of the subject’s truthfulness by allegedly comparing the physiological reactions to each set of questions.

      22. Most preemployment screening examinations utilize a series of relevant-irrelevant questions. A person is asked a series of question which contain relevant information about the subject matter being tested, which are interspersed among a series of neutral questions. If the physiological reactions are stronger to the relevant questions than to the neutral ones, the person is diagnosed as being deceptive. Conversely, a lack of difference is considered to be an indication of truthfulness. This test tends to be vague and broad because the examiner is seeking to determine what an employee or prospective employee has done many years in the past or may do in the future. Relevant-irrelevant tests are thought by experts to be less accurate than control question tests.

      23. Upon information and belief, an expert polygraph examination generally takes a minimum of several hours to complete. However, examinations conducted utilizing the relevant-irrelevant test typically are much shorter in duration.

      24. A number of extrinsic factors effect polygraph validity. Because the examiner must formulate the questions, supplement the data with his own impression of the subject during the exam, and infer lies from a combination of the data and his impressions, the level of skill and training of the examiner will effect the reliability of the results. A polygraph examiner’s interpretation of polygraph results is not, in fact, true evidence of conduct. It is merely the opinion of an individual with no knowledge about any of the facts surrounding the subject matter of the questions.

      25. Upon information and belief, polygraph research (direction, funding, and evaluation), training, and operational review is primarily controlled by those who practice polygraphy and depend upon it for a living. This is tantamount to having the governments’ cancer research efforts controlled by the tobacco industry.

B.  THE UNRELIABILITY OF THE POLYGRAPH

      26. The late Senator Sam J. Ervin, Jr., once stated about polygraph testing that “[t]he process smacks of 20th century witchcraft...The burden of proof should be on those who assert the efficacy of polygraph in predicting the behavior of prospective...employees. There have been practically no efforts to compile this proof...Why then do [employers] have such blind faith in these devices? In my opinion, it is directly related to the role of science and technology in our society - the cult of the ‘expert’. There is an increasing belief that anything scientific must be more reliable and rational than the judgment of men...There is no necessity for these infringements of freedom and invasions of privacy; but even if there were a necessity for them, I believe that every citizen should answer like William Pitt: ‘Necessity is the plea for every infringement of human liberty. It is the argument of tyrants; it is the creed of slaves.’”

      27. The scientific community remains extremely polarized about the reliability of polygraph techniques. This lack of scientific consensus is reflected in the disagreement among state and federal courts concerning both the admissibility and the reliability of polygraph evidence. Whatever their approach, most state and federal courts continue to express doubt about whether polygraph evidence is reliable. Upon information and belief, although there is disagreement amongst scientists about the use of polygraph testing in criminal matters, there is almost universal agreement that polygraph preemployment screening is completely invalid and should be stopped.

      28.      Although many courts over the years have discussed the reliability of the polygraph, the overwhelming majority have done so in the criminal context. No court has yet addressed in a civil context the reliability of polygraph evidence arising from preemployment testing, and the abuses that may result therefrom.

      29.      Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.

      30. In fact, the polygraph predicts whether a person is lying with accuracy that is only slightly greater than chance. Since the question “Is the subject lying?” is a yes or no question, a random method of answering the question (e.g., a coin toss) would be correct 50% of the time. Indeed, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa.

      31. In 1965 and again in 1976, the House Government Operations Committee concluded that there was not adequate evidence to establish the validity of the polygraph. In 1979, the Oversight Subcommittee of the Select Committee on Intelligence of the U.S. House of Representatives was notified that polygraph testing is a central component of the preemployment screening process for applicants for positions in most federal law enforcement and intelligence agencies. Approximately 75% of those denied security clearances by the CIA or NSA came as a result of polygraph examinations. Based, in part, on this information the subcommittee urged the director of the CIA to institute research on “the accuracy of the polygraph in the pre-employment setting and to establish some level of confidence in the use of that technique.” To date, no credible research on the topic of preemployment polygraph screening has been published.

      32. In November 1983, the Office of Technology Assessment (“OTA”) issued a report “Scientific Validity of Polygraph Testing: A Research Review and Evaluation”. The report concluded that “the available research evidence does not establish the scientific validity of the polygraph test for personnel security screening” and that the “mathematical chance of incorrect identification of innocent persons as deceptive (false positives) is highest when the polygraph is used for screening purposes.” The OTA compiled the results (for research on the control question technique in specific incident criminal investigations) of six prior reviews of polygraph research, ten field studies, and fourteen analog studies that it determined met the minimum scientific standards. The results were as follows:

      1)   Six prior reviews of field studies:

            -      average accuracy ranged from 64% to 98%.

      2)   Ten individual field studies:

            -      correct guilty detections ranged from 70.6% to 98.6% and averaged 86.3%;

            -      correct innocent detections ranged from 12.5% to 94.1% and averaged 76%;

            c)      false positive rate (innocent persons found deceptive) ranged from 0% to 75% and averaged 19.1%;

            d)      false negative rate (guilty persons found nondeceptive) ranged from 0% to 29.4% and averaged 10.2%.

      3)      Fourteen individual analog studies:

            a)      correct guilty detections ranged from 35.4% to 100% and averaged 63.7%;

            b)      correct innocent detections ranged from 32% to 91% and averaged 57.9%;

            c)      false positives ranged from 2% to 50.7% and averaged 14.1%;

            d)      false negatives ranged from 0% to 28.7% and averaged 10.4%.

      33. The United States Congress, particularly in light of the OTA report questioning the reliability of the polygraph machine, enacted - and the president signed into law - The Employee Polygraph Protection Act of 1988, which generally prohibits the private sector from using polygraphs in preemployment screening and sharply curtails the permissible uses of the polygraph in specific-incident investigations. Prior to the enactment of this legislation, it was estimated that a minimum of 400,000 honest workers were wrongfully labeled deceptive and suffered adverse employment consequences each year. The federal government, however, is exempt from the provisions prohibiting preemployment testing.

      34. Even the primary and largest law enforcement agency of the United States has expressed significant concerns regarding the reliability of the polygraph machine. In the 1998 Supreme Court case United States v. Scheffer, the Department of Justice argued against admissibility of polygraph evidence by stressing its inaccuracy, thus creating an inconsistency between the government’s extensive use of polygraphs to make vital security and preemployment determinations and in instances where the results of the test - as in Scheffer where the criminal defendant had passed a polygraph - do not suit the purposes of the government.

      35. On or about February 3, 1997, James K. Murphy, the Chief of the FBI’s Laboratory’s Polygraph Unit in Washington, D.C. and a FBI polygraph examiner since 1978, submitted a declaration to the United States Military Court, Mid-Atlantic Region, Norfolk, Virginia, in the case of United States v. Ens. Patrick J. Jacobson, USN. He stated that "[i]t is the policy of The Department of Justice to oppose all attempts by defense counsel to admit polygraph results as evidence and to refrain from seeking the admission of favorable examinations which may have been conducted during the investigatory stage of a case...The FBI uses the polygraph as an investigative tool and cautions that the results should not be relied upon to the exclusion of other evidence or knowledge obtained during the course of an investigation...This policy is based upon the fact that, a) the polygraph technique has not reached a level of acceptability within the relevant scientific community, b) scientific research has not been able to establish the true validity of polygraph testing in criminal applications, c) there is a lack of standardization within the polygraph community for training and for conducting polygraph examinations."

C. SPECIFIC EXAMPLES OF POLYGRAPH PROBLEMS AND ABUSE

      36. There are many examples of the unreliability of polygraph examinations, and its potential abuse. Aldrich Ames, the former CIA official turned-spy, convinced a polygraph examiner on at least two occasions that the deceptive readings he was allegedly displaying were easily explained away. As a result, Ames “passed” the polygraph. Of course, Ames was instructed by the Soviet Union on how to utilize countermeasures to beat the polygraph. Upon information and belief, few true spies, if any, have ever been caught by the United States Government solely because of the polygraph.

      37. In fact, it is a simple feat to defeat the polygraph, which undermines the entire purpose of utilizing it to determine the truth. The very persons most likely to be the subject of a polygraph examination can use any number of techniques to “truthfully” lie. Various instructions on how to defeat the polygraph are publicly available in books and on the Internet. Upon information and belief, during the 1980s, approximately thirty Cubans who served as agents (i.e., spies) for the CIA passed extensive polygraph examinations. Following the defection of a Cuban intelligence officer and his debriefing, it was revealed that all of the CIA’s “Cuban agents” were actually double-agents working for the Cuban Government. Each and every one of them had defeated the CIA’s polygraph examination.

      38. The recent treatment of Wen Ho Lee, a former nuclear scientist now facing criminal charges for mishandling classified information, is further evidence of the unreliability and misuse of the polygraph. On or about December 23, 1998, Lee was given a polygraph examination by a Department of Energy (DOE) polygrapher in Albuquerque, New Mexico. After completing the test, the polygrapher concluded that Lee was not deceptive. Two other polygraphers in the DOE's Albuquerque test center, including the manager, reviewed the charts and concurred with the result. Upon information and belief, the polygraph results were so convincing and unequivocal, that the deputy director of the Los Alamos lab issued an apology to Lee, and work began to get him reinstated to his former position. Several weeks after the polygraph, the DOE decided to assign Lee’s test the unusual designation of "incomplete." When FBI headquarters finally obtained the DOE polygraph results, it concluded that Lee had failed the polygraph. The FBI on its own then tested Lee, and claimed that he failed.

      39. In researching a story on Lee’s polygraph tests, CBS News spoke to Richard Keifer, the current chairman of the American Polygraph Association and a former FBI Special Agent who used to run the FBI's polygraph program. Keifer indicated that, "[t]here are never enough variables to cause one person to say [a polygraph subject is] deceptive, and one to say he's non-deceptive...there should never be that kind of discrepancy on the evaluation of the same chart." After personally reviewing Lee’s polygraph scores, Keifer remarked that the scores are "crystal clear." Indeed, he added that in all his years as a polygrapher, he had never been able to score anyone so high on the non-deceptive scale. Yet the FBI was adamant that Lee had failed the test; a perfect example of deliberate misuse of the polygraph.

      40.      Another example was that of the CIA’s mistreatment of one of its former staff attorneys, Adam Ciralsky. The CIA fired him and revoked his top-secret security clearance, in part, because he allegedly exhibited a "lack of candor" about relationships with associates who may have been tied to Israeli intelligence. Official CIA records, however, revealed that the CIA tried to manipulate Ciralsky's polygraph tests so as to transform demonstrably "non-deceptive" results into "deceptive" results. A CIA memo, written two weeks before Ciralsky's final polygraph, stated that Tenet [Director of the CIA] "says this guy is outta here because of lack of candor. . . . Subject is scheduled for [another] poly. . . . Once that's over, it looks like we'll be waving goodbye to our friend." Thus, official records indicated that the CIA were set to base Ciralsky's dismissal on the outcome of a polygraph examination that he had yet to take. In fact, Ciralsky underwent and successfully completed counterintelligence polygraphs in 1993, 1996 and 1998, at which times his answers were consistently deemed to be "strongly non-deceptive." Yet when Ciralsky submitted to CIA polygraph examinations in August and October 1997, he was accused of "deception" with regard to issues and events which pre-dated, and hence were covered by, his earlier polygraphs. Upon information and belief, Ciralsky did not fail any of his CIA polygraph examinations. The CIA’s actions demonstrated how federal agencies utilize polygraph results to suit their own purposes, which are not necessarily consistent with the truth.

      41. Upon information and belief, in or around 1997-98, CIA polygraphers reported to the DOJ's Public Integrity Section that CIA management does, in fact, instruct polygraphers to "fail" certain employees. It can be assumed that similar tactics exist within the FBI, DEA, and USSS.

II.  THE DEFENDANT FEDERAL AGENCIES

A.      FEDERAL BUREAU OF INVESTIGATION

      42. Upon information and belief, in or around the 1930s, the FBI conducted a criminal investigation in the State of Florida. Following the identification of a suspect, the individual was administrated a polygraph examination and was found to be deceptive. As a result, the FBI believed this individual was the guilty culprit. However, soon thereafter it became apparent that this individual was not guilty of the crime, but in fact another individual was proven to be the guilty party. This prompted J. Edgar Hoover, then the director of the FBI, to exclaim (something to the effect) that the FBI should “take the damn thing [polygraph machine] and throw it in the lake.” The polygraph was not utilized by the FBI for years afterwards.

      43. Despite the lack of scientific evidence supporting its use, the polygraph machine is now heavily relied upon by the FBI for personnel screening. The current Director Louis Freeh implemented the present policy in or around March 1994. Any applicant for a full-time position with the FBI, no matter the individual’s level of responsibility, is required to undergo a polygraph examination. The FBI’s polygraph screening focuses exclusively on counterintelligence issues. the sale and/or use of illegal drugs, and the accuracy and completeness of information furnished by applicants in their employment applications.

      44.      According to an October 28, 1997, letter sent by Donald Kerr, the Assistant Director of the FBI’s Laboratory Division, to Senator Charles E. Grassley, between March 1994, and October 1997, “the FBI conducted approximately 16,200 preemployment polygraph examinations. Of those, 12,930 applicants (80 percent) passed and continued processing; 3,270 applicants (20 percent) were determined to be withholding pertinent information. When these individuals were interviewed about their unacceptable performance in the polygraph session, 1,170 (36 percent) admitted to withholding substantive information.” While the FBI’s definition of “substantive” is unknown, based on the above FBI figures up to 64 percent of those individuals (2,100) who were deemed deceptive by the polygraph examiner may have been or were innocent of any wrongdoing.

      45. Upon information and belief, approximately 20%-40% of all FBI employee candidates each year fail the polygraph examination, typically due to responses to the drug use question.

      46. The FBI’s website explains how it uses the polygraph machine in its recruitment process at http://www.fbi.gov/kids/crimedet/poly/poly.htm. It states that the “polygraph test consist [sic] of three phases: the pretest interview, the test, and the post-test phase which may include the examiner questioning the examinee concerning responses to specific test questions. Before beginning the first phase in the polygraph process, the examiner will gather information about the case from the investigator. Collecting this information allows the examiner to create appropriate questions for the actual examination. After constructing these questions, the examiner is ready for the pretest interview. To begin the pretest interview, the examiner is introduced to the examinee and describes what will happen during the test. The examiner then gets the individual to explain their version of what happened and then discusses the questions that will be asked during the polygraph test. Once the examiner has discussed this information with the examinee, phase two of the polygraph test begins. Within the test, the examinee will face a variety of questions. All the questions require a simple "yes" or "no" answer. Through most of these questions, the examiner is trying to determine the individual's knowledge and participation or involvement in the crime under investigation. The theory is that, throughout the polygraph test, the examinee’s attention will focus on the questions that he or she finds most threatening. These questions are usually those which the examinee will attempt to provide a deceptive answer. Any attempt to provide deceptive answers by the examinee usually results in significant changes in their recorded physiology which is detected by the examiner. The examinee's responses are compared to a variety of deceptive criteria which the examiner is trained to recognize in each physiological parameter recorded. To establish how an individual would physically respond when telling the truth or lying, the polygraph test includes questions that develop baseline readings for what examiners call known-truths and probable-lies. Both known-truth and probable-lie questions allow the examiner to record the blood pressure/pulse ratio (mean pressure), galvanic skin response, and respiration of the examinee, and then compare those results to the results recorded for questions regarding the crime or relevant issue. Once the examiner finishes with all of the questions, he or she evaluates the results to determine whether the individual told the truth or was deceptive. If the polygraph results indicate that the examinee was telling the truth, the individual is thanked for participating in the test and allowed to leave. But, if the polygraph results indicate deception, the examiner will begin the third phase of the test, questioning or interrogation to determine the reason for the deceptive test results. While acting in a professional and understanding manner, a skilled examiner will use effective questioning techniques to make the examinee comfortable with telling the truth.” Upon information and belief, experiences for applicants have revealed that FBI polygraphers routinely fail to act in a professional or understanding manner.

      47. The FBI has asserted in correspondence that the “polygraph is one of the many tools that law enforcement agencies, including the FBI, use when conducting investigations. Besides identifying guilty subjects, the polygraph can eliminate suspects, verify witnesses' statements or informant information, and determine the truth of an individual's statement. When used properly by trained qualified examiners, the polygraph is an effective investigative tool which can save many investigative man-hours, decrease the overall cost of investigations, and provide valuable investigative leads or information which could not otherwise be developed due to lack of evidence or other noteworthy information.”

      48.      Specifically with respect to preemployment screening, the FBI has also indicated in correspondence that it “uses the polygraph as an aid to investigation and considers it highly reliable when used by a competent and ethical examiner. It is one part of the screening process and is designed to address issues that may not be resolved by more traditional investigative methods.” It has also said that “[h]ighly trained and experienced FBI polygraphers are utilized to conduct these examinations which have proven very reliable in our employment process.”

      49. Once an applicant successfully completes the initial application process, the individual is required to successfully complete a polygraph examination in order to continue processing. Although Donald Kerr, the Assistant Director of the FBI’s Laboratory Division, informed Senator Charles E. Grassley by letter dated October 28, 1997, that the polygraph “is not a substitute for, but merely one component of, a thorough and complete background investigation”, upon information and belief only upon a successful completion of the polygraph examination will an applicant be afforded a full-fledged background investigation. Therefore, any applicant that is falsely accused of a violation as a result of the polygraph will be unable to “clear” his/her name as the FBI will not conduct any further investigation into their background. The applicant is left to prove a negative does not exist.

      50. Upon information and belief, when the FBI implemented its polygraph program in 1994, the then current special agent class had already begun its training. Nevertheless, members of the 1994 class were administered polygraph examinations and approximately half the class failed. However, the FBI simply overlooked this problem and waived the requirements of the polygraph for the 1994 class.

      51. Upon information and belief, it is a common perception among FBI personnel involved in the application and polygraph process that applicants who “fail” the polygraph will reveal something that they withheld or will simply just go away.

      52. The FBI official policy, as set forth in various correspondence, is that “[a]ny applicant who does not successfully pass an initial polygraph examination may request to be afforded a second polygraph examination; however, certain criteria must be met.” While the criteria is not publicly known, upon information and belief the FBI policy on this issue is contained in, but not limited to, Buairtel dated May 1, 1995, captioned “Special Agent Selection System (SASS) Polygraph Policy”. Although applicants to the FBI have been notified by letter that the “FBI’s policy regarding additional polygraph examinations is consistent for all applicants”, upon information and belief the FBI inconsistently applies this policy.

      53. On or about September 29, 1997, Dr. Drew C. Richardson, a FBI Supervisory Special Agent, testified before the Senate Judiciary Committee and condemned the use of the polygraph machine. He testified, in part, that “[w]ithin the Bureau, polygraph examiners who have little or no understanding of the scientific principles underlying their practice, report to mid-level managers who are largely ignorant of polygraph matters. These in turn report to executives, who have real problems for which they seek needed solutions (e.g., the need to protect national security from the danger of espionage, and the need to hire employees with appropriate backgrounds). These executives are left unable to evaluate that polygraph is not a viable solution and do not comprehend that ignorance and mis-information are built into their own command structure.”

      54. The FBI’s polygraph examinations are neither tape recorded or videotaped, despite the fact that such actions would only ensure that polygraph examinations are conducted properly. Upon information and belief, the FBI chose not to tape record or videotape polygraph examinations in order to reduce an applicants’ ability to challenge the results of a polygraph examination.

      55. During the period relevant to this litigation, the FBI’s drug use policy was that an applicant is unsuitable for employment if marijuana was used during the last three years or more than fifteen times, or if usage of any illegal drug(s) or combination of illegal drugs, other than marijuana, was more than five times or during the last ten years.

      56. Upon information and belief, many of the FBI’s polygraph examiner are biased in their perceptions of applicants, which affects the manner in which the test is administered and the results achieved. Indeed, one FBI polygraph examiner Special Agent H. L. Byford stated in an e-mail dated August 6, 1999, that “if someone has smoked marijuana 15 times, he's done it 50 times....Those who have any doubts about how many times they used are going to fail. Those who are certain that they only tried it once or three times or five or whatever, will pass....I got to tell you though, if I was running the show, there would be no one in the FBI that ever used illegal drugs!”

      57. Upon information and belief, many former FBI Special Agents, including some who had distinguished careers, have failed polygraph examinations when trying to either re-enter the FBI or attain a consulting arrangement. In solely considering the results of the polygraph machine, the FBI literally accused its former agents of having committed crimes while on duty with the FBI; acts that if true have still gone unpunished.

B.  DRUG ENFORCEMENT ADMINISTRATION

      58. The DEA’s website (http://www.usdoj.gov/dea/briefingbook/page86.htm) indicates that in order to become a Special Agent, “applicants must successfully complete a polygraph examination, a psychological suitability assessment, and an exhaustive background investigation.”

      59. On May 14, 1997, Thomas A. Constantine, Administrator, DEA, testified before the Senate Caucus on International Narcotics Control regarding Southwest Border Corruption. In that testimony (http://www.usdoj.gov/dea/pubs/cngrtest/ct970514.htm) he addressed current DEA Special Agent recruitment and hiring procedures. He stated that the “polygraph examination is utilized as a tool to determine and direct attention to possible problem areas in an applicant’s background. However, it is never the sole determining factor in determining the applicant’s suitability for employment by DEA.”

      60. In reviewing Constantine’s testimony, a reasonable person would be under the impression that the DEA will conduct a psychological screening and clinical interview, drug deterrence screening, polygraph examination, panel interview by supervisors and senior Special Agents, and a comprehensive background investigation, prior to any formal decision regarding employment. Upon information and belief, the DEA has made and continues to make suitability decisions regarding applicants immediately after receiving the results of polygraph examinations. At times the DEA solely relies on polygraph results, and derivative conclusions arrived therefrom, in adjudicating suitability decisions. Applicants are not afforded opportunities to challenge the test results or the luxury of a comprehensive background investigation that may very well arrive at contrary conclusions from that of the polygraph examination.

C.  UNITED STATES SECRET SERVICE

      61. The USSS requires applicants to undergo a complete background investigation , which includes in-depth interviews, drug screening, medical examination, and a polygraph examination.

      62. The USSS maintains a Polygraph Examination Program which it uses as a major investigative tool for all cases under Secret Service jurisdiction. Each examiner is trained in interview and interrogation techniques, and may conduct polygraph examinations on issues involving criminal, national security, and employee-screening matters.

      63. Upon information and belief, the USSS audiotapes all polygraph examinations. However, applicants are not provided with copies of these tapes except if requested through the Freedom of Information or Privacy Acts; a process that typically takes years. Thus, applicants are not permitted a timely opportunity to use the audiotapes to support their allegations of irregularities or misconduct.

      64. Upon information and belief, the USSS does not typically permit applicants the opportunity to take a second polygraph examination if the first one allegedly revealed deception. In fact, no formal appellate process offers applicants any due process rights to challenge false positive polygraph results.

      65. Upon information and belief, the USSS has revoked applicants’ conditional job offers solely based on the results of polygraph examinations.

 

III. THE PLAINTIFFS

A.  ERIC CRODDY (FBI)

      66. In or around late 1996 or early 1997, Croddy, who is a Defense and Aerospace Research Analyst in the private sector, completed the FBI’s written examination. An FBI agent administering the test referenced the polygraph and called it the “line in the sand” insofar as FBI applicants are concerned. Croddy has never taken an illegal drug in his life.

      67. In or around July 1997, Croddy was extended an invitation to be interviewed for a position as an Intelligence Specialist. His first contact was with Special Agent Kathy Muller. He also spoke with members of the FBI unit dealing with chemical and biological terrorism incidents, including Pete Strzok, an Intelligence Research Specialist, his superior, Robert Shapiro, and additional analysts. Generally, the response was positive, and as far as Croddy could tell they were receptive to his submitting a formal application.

      68. In or around late 1997, Croddy underwent a polygraph examination at the FBI’s field office in the Federal building in San Francisco, California. The polygraph examiner first went through a pretest interview with Croddy and discussed his application. He remarked that Croddy was displaying noteworthy candor by including certain information in his application, i.e., that a former roommate of his in college had been involved with drug use. Not being involved in any of the drug-related activities himself, and knowing that many of his friends and colleagues were well aware of this fact, Croddy had no difficulty in providing relevant background information. In the initial stages of the examination, the polygrapher attempted to build a rapport with Croddy by pointing out similarities in their backgrounds.

      69. The polygrapher then went on to explain the basics of the polygraph,

paraphrasing F. Lee Bailey’s characterization of the device as being “basically a medical device.” The reference to F. Lee Bailey seemed odd to Croddy due to Mr. Bailey’s participation in what Croddy believed to be some unseemly cases. The polygrapher placed numbers on cards which were then attached to the wall. Croddy was instructed to pick one number and keep the choice to himself. As the polygrapher read each number on the wall, he told Croddy to answer “no” to each one when asked, “is the number [e.g., 5]…?” According to the polygrapher, when Croddy said “no” to the number Croddy had actually chosen, the reaction was quite evident. The polygrapher added that Croddy was, in the parlance of the polygraph profession, a “screamer” (i.e., one whose deception can be easily seen).

      70. When the polygrapher concluded the first round of questioning, including a question regarding whether Croddy had violated any of the FBI’s guidelines with regard to drug use, Croddy found himself accused of being deceptive. As far as the polygrapher was concerned, he indicated there was little point in going on, unless of course Croddy were to make a confession. Croddy became extremely upset and remarked to the polygrapher that it was impossible to prove a negative, i.e., that Croddy had not used drugs. In fact, Croddy has never taken an illegal drug in his life. Nevertheless, the session ended after approximately two hours, and his FBI application was subsequently rejected.

      71. Upon information and belief, none of the references in Croddy’s application were contacted to verify or disprove the polygrapher’s accusations that Croddy had used drugs.

      72.      Following Croddy’s receipt of the FBI’s written rejection, by letter dated

January 10, 1998, he informed Special Agent Kathy Muller of what had happened, thanked her for her kind consideration and disputed the results of the polygraph. By letter dated April 2, 1998, Croddy also explained what had transpired to FBI Director Louis Freeh.

      73. Croddy is in the process of applying for employment as a federal law enforcement officer. Ironically, although he is probably one of the few people his age who has never experimented with illegal drugs, he will have to reveal the fact that he failed the drug questions on an FBI polygraph examination.

 

B.  JOHN DOE#1 (FBI)

      74. In or around October of 1991, John Doe#1, who is now employed as a Certified Public Accountant, contacted recruiting coordinator Debbie Lyon (then Debbie Jones) of the Norfolk field office of the FBI. He informed Ms. Lyon that he was interested in becoming an Agent. She forwarded him the appropriate initial application form – Form FD-646. Since at the time he had not yet passed the CPA exam, John Doe#1 was required to take the FBI’s equivalent accounting test as he was applying through the FBI’s accountancy program. 

      75. On or about October 25, 1991, John Doe#1 took the FBI’s accounting exam at the FBI’s Norfolk field office. Soon thereafter he received a letter notifying him that he had passed the test and was eligible for further testing.

      76. On or about November 1, 1991, John Doe#1 took the FBI’s written exam. The test was also conducted in the Norfolk field office. This test was also satisfactorily completed and John Doe#1 received a letter dated November 14, 1991, notifying him that he passed the test and was eligible for further testing. Therefore, he filled out the long application form, Form FD646, and Ms. Lyon arranged for an oral interview.

      77. On or about January 6, 1992, John Doe#1 went to the Norfolk FBI field office for his panel interview. Before the interview started he met briefly with Special Agent Butch Holtz, who was in charge of recruiting and who informed John Doe#1 that he probably would not pass the panel interview because he was too young. He could, however, re-apply in the future. At the time John Doe#1 was only twenty-three years old; the minimum age for applicants.

      78. By letter dated April 9, 1992, John Doe#1 was informed that his application was being placed on hold. Upon information and belief, this was the result of a hiring freeze at the FBI and due to the application process undergoing modifications. As a result, he was informed he would have to complete the tests all over again under the new application method. During April 1992 to March 1994, John Doe#1 kept in touch with Ms. Lyon.

      79. In or around September 1994, Ms. Lyon informed John Doe#1 that the FBI hiring freeze was to be lifted. Therefore, on or about October 12, 1994, he mailed her a new initial application Form FD-646. In or around October 1994, he was notified that his written test under the new application method was scheduled for on or about December 1, 1994. He was also sent materials explaining the new application process. These materials included the FBI’s policy on illegal drug use and announced that as part of the new application procedure, polygraph testing would be used for all applicants to determine the extent of illegal drug usage. 

      80. In order to allow a one-time experimental use in high school of a non-marijuana drug to fall outside of the FBI’s acceptable ten year drug use guideline, John Doe#1 delayed submitting his Form FD646 application until on or about March 11, 1996. This form was slightly different then the older initial form as the format of the questions on drug usage had changed. There was nothing improper regarding this decision. In fact, it had been suggested to John Doe#1 by an FBI employee involved with the application process. On or about April 2, 1996, John Doe#1 took the new written examination. He was notified by letter dated April 16, 1996, that he passed the examination. The new panel interview, or Phase Two Test, was then scheduled for on or about June 4, 1996.  

      81. Before John Doe#1 went to the panel interview, Ms. Lyon explained part of the process to him. As part of her explanation she told him that the Agents conducting the interview would know nothing about his background or application. She specifically mentioned that they would have no knowledge of the fact he postponed his application in order to comply with the FBI’s ten year period on drug usage of drugs, and that this was not a problem. John Doe#1 was notified he attained a passing score on the structured interview and writing exercise by letter dated June 13, 1996.

      82. On or about June 16 or 17, 1996, Special Agent B.J. Marlowe of the Norfolk FBI field office called to conduct a pre-test polygraph interview over the telephone. It was John Doe#1’s understanding that this was the conversation during which he was to disclose any illegal behavior in his past. Therefore, John Doe#1 proceeded to tell Special Agent Marlowe of his past drug use, all of which was within the FBI’s drug usage guidelines, and of various minor incidents most of which had occurred while he was a teenager. This included questions and discussions concerning private medical information.

      83.      Although John Doe#1 could not absolutely recall his total prior uses of marijuana, he estimated his usage was around ten times. By providing this number John Doe#1 believed he was erring on the side of caution. This fact was mentioned to Special Agent Marlowe during the phone interview.

      84.      Throughout the phone interview John Doe#1 stressed to Special Agent Marlowe how ashamed he was of his past behavior. She responded by saying that he should try not to feel that way or he could have problems with the polygraph. In addition, she informed him that the majority of the incidents he spoke of were committed while he was a minor and of no importance as far as the FBI was concerned.

      85. A day or so later, Special Agent Marlowe called again to ask him if the marijuana usage figure he told her over the phone during their previous conversation was ten times or two times. He indicated that ten times was the correct number.

      86. On or about June 19, 1996, John Doe#1 returned to the Norfolk FBI field office for his polygraph examination. The polygrapher was Special Agent Samuel Bryant, Jr.  He led John Doe#1 from the reception area to the room where the test was to be administered. He began by asking John Doe#1 how he was feeling. He also had copies of  John Doe’s applications laid out on his table and chair.

      87. Special Agent Bryant then explained the polygraph process to John Doe#1. He informed John Doe#1 that the meeting was not being audio or video taped, and that there were no one-way mirrors in the room. Prior to the test, Special Agent Bryant went over the questions he would be asking during the test.

      88. After answering the questions about illegal drug usage, Special Agent Bryant asked John Doe#1 if his responses were the same he had given Special Agent Marlowe. When John Doe#1 replied that it was, Special Agent Bryant answered "good."  After explaining the past incidences of misbehavior in detail, Special Agent Bryant instructed John Doe#1 to answer  "No" to questions on whether he had ever cheated or falsified legal documents because the FBI was looking for general trends of behavior. He also instructed John Doe#1 to answer “No” to the "Is there anything in your background that would lead us to believe you lack integrity" question for the same reason.

      89. Special Agent Bryant placed all the polygraph attachments on John Doe#1 and went through the questions three times, taking breaks between each session. After the first session, he informed John Doe#1 that he was getting a response from the "Is there anything in your background that would lead us to believe you lack integrity" question and the “Have you falsified legal documents question."  He reiterated that he was not talking about any one specific incident and then altered the question to read, "Other than what we have discussed have you ever falsified any documents” and “Other than what we discussed is there anything in your background that may lead us to believe you lack integrity.”

      90. After the third set of questions, John Doe#1 initialed the polygraph strips and Special Agent Bryant left the room for a few minutes. He then returned and informed John Doe#1 that the only question he was now having difficulty with was the question about illegal drug usage, although Special Agent Bryant did not accuse him of deception. He asked John Doe#1 if there were anything that could be causing him to respond to that question. John Doe#1 proceeded to tell him how he was scheduled to apply to the FBI in 1994, but held off on the procedure until he was sure he was in compliance with the FBI's drug use policies. Special Agent Bryant had him write a statement to that effect as it would be attached to the polygraph results sent to Washington, D.C. for review.

      91. As John Doe#1 was leaving the room to see Special Agent Bob Shea, the Special Agent in Charge of Recruiting, he asked Special Agent Bryant how he did on the polygraph examination. Special Agent Bryant responded "I'm satisfied with your answers."  The entire polygraph, from the time John Doe#1 entered the room until the time he left took approximately forty-five minutes to an hour.

      92. After the test, John Doe#1 was taken to a locker or weight room and weighed by Special Agent Bob Shea. He also measured John Doe#1’s height. He was taken to a smaller room or office and shown a fifteen to thirty minute video on the physical requirements of the FBI Academy and what to expect. After the video, Special Agent Marlowe entered the room and asked John Doe#1 again if his marijuana usage was ten times or two times. Again he informed her it was ten times. He briefly met with Special Agent Bob Shea again and was then shown out. He was told that the results of the test would be available in a few weeks. At that time his drug test and physical would be scheduled.

      93. A few weeks later, on or about July 10, 1996, Ms. Lyon called and told John Doe#1 he had not passed the polygraph examination. Upon being asked for specifics, she told him the report read “results show deception” or some similar wording. He received formal notification that his FBI application would not be processed further “based on the results of your polygraph examination” by letter dated August 5, 1996.

      94. Since John Doe#1 had told the complete truth during his testing, he immediately requested a retest by letter dated July 10, 1996. This request was denied by letter dated January 23, 1997, from Richard Hildreth, Jr., Chief, Applicant Recruiting and Background Section, FBI, who indicated that the “FBI does offer a polygraph retest depending on the circumstances in certain cases. However, based on the facts in your case, you do not meet the criteria required and will not be afforded a retest or any further consideration for FBI employment.” No explanation was provided to justify the FBI’s decision. Over the next three years John Doe#1 wrote the FBI on several occasions concerning the application process, but to no avail.

      95. By letter dated April 16, 1999, Michael E. Varnum, Chief, Applicant Processing Section, Administrative Services Division, FBI, provided John Doe#1 with additional information. Chief Varnum indicated that [a]ny applicant who does not successfully pass an initial polygraph examination may request to be afforded a second polygraph examination; however, certain criteria must be met. In your case you did not meet the criteria because of your failure to fully disclose the extent of your drug usage until after the polygraph examination was administered.” John Doe#1 responded to Mr. Varnum by letter dated May 16, 1999, to clarify that he had, in fact, fully revealed all potentially incriminating information concerning his teenage drug usage before he had undertaken the polygraph examination. The FBI sent a final reply by letter dated August 13, 1999, and indicated that “the decision not to offer you an appointment remains the same.”

      96.      Although extremely disappointed by the FBI results, John Doe#1 nevertheless was still determined to seek a career in law enforcement. Over the next two years, he applied twice to the North Carolina State Bureau of Investigation, and also submitted applications to the Chapel Hill and Raleigh Police Departments. However, John Doe#1 was never hired by any of these agencies. Although he was highly qualified and exceeded the qualifications, he never received a job offer. The Chapel Hill and Raleigh Police Departments actually conducted background investigations on John Doe#1 as part of the application process. He also passed two Voice Stress Analysis tests with the Raleigh Police Department during two separate application processes. His statements concerning his drug usage were part of that test for deception.

      97. For all of these organizations John Doe#1 was required to reveal that the FBI had denied his application. Both the Chapel Hill and Raleigh police departments asked him about his experience with the FBI. He had to specifically disclose to them during his interviews that he failed the FBI’s polygraph exam. In each interview setting, John Doe#1’s polygraph exam became a point of contention or concern to the interviewers. He was asked if he lied. He was asked what he had lied about. He was asked why he failed. Upon information and belief, the three law enforcement agencies were provided unfavorable, inaccurate information by the FBI concerning John Doe#1 and the results of his polygraph examination. This information prevented John Doe#1 from being hired by these law enforcement agencies. In any event, the mere fact that John Doe#1 had to inform these other law enforcement agencies of his problems with the FBI’s polygraph created a negative stigmatization that harmed or destroyed his chances for employment.

      98.      Furthermore, if John Doe#1 applies to other law enforcement agencies, whether state, local or federal, he will be required to - and even if not, he would nonetheless -  reveal the fact that he failed prior FBI polygraph examinations on the drug usage questions. Since he did not lie to the FBI, the fact that the FBI will inform prospective employers that he failed the polygraph will always stigmatize him.

 

C.  JOHN DOE#2 (FBI)

      99. John Doe#2 is a probation officer with a county probation department, and a former soldier in the United States Army. In the latter position, he held a Secret level security clearance. Throughout his professional career, John Doe#2 has had to submit to numerous drug tests. He was administered random drug tests throughout my military experience in the United States Army from 1986-89, including a brief time period when he was in the National Guard in Florida. He also submitted to two drug tests in 1994 to attain his current full-time and part time positions. In April 2000, he submitted to a drug test as an applicant with the Bureau of Alcohol, Tobacco and Firearms (“ATF”). He has never failed a drug test. 

      100.  On or about February 14, 1995, John Doe#2 submitted a preliminary application for the position of Special Agent of the FBI.

      101.  By letter dated September 6, 1995, John Doe#2 was notified by the FBI that he attained a passing score on the first battery of tests for the Special Agent position. As a result, he was requested to submit additional application materials. On or about

September 20, 1995, John Doe#2 submitted his FD140 application.

      102.  By letter dated July 8, 1996, John Doe#2 was notified by the FBI that he failed to attain a passing score on the structured interview and written exercise, but that he was permitted to take a retest. In order to enhance his competitiveness, John Doe#2 attained a Master’s Degree in Criminal Justice (3.9/4.0 GPA and a published thesis) before resubmitting to a second test.

      103.  By letter dated September 30, 1998, John Doe#2 was notified by the FBI that he attained a passing score on the structured interview and written exercise and was thereby eligible for further consideration for the Special Agent position.

      104.  By letter dated October 2, 1998, John Doe#2 was offered a conditional appointment as a Special Agent of the FBI. Appointment was contingent upon the existence of a vacancy of a funded position, and successful completion of a background investigation, preemployment polygraph examination, physical readiness test, physical examination, and urinalysis drug test.

      105.  John Doe#2 underwent his first polygraph examination on or about October 20, 1998. During his preliminary interview, John Doe#2 admitted that he had used marijuana on five occasions during the period 1984-1989. He also admitted to a one time experimental use of a drug other than marijuana (which consisted of simply dipping his finger in the substance and tasting it) even though this had occurred more than thirteen years prior and he was not required to reveal this information. However, John Doe#2 wanted to note that he mistakenly omitted this usage on his initial application submitted three years prior as he had believed the usage was outside of the requested time frame. As he had since learned otherwise, he wanted to correct the record despite the fact his past drug usage was now clearly within the FBI’s policy guidelines. At the time John Doe#2 was told by his initial FBI recruiter not to worry about this discrepancy since the usage would be outside the ten year period by the time he would be polygraphed. Thus, the omission had been excused by the FBI official closest to John Doe#2’s application process.

      106.      Before the polygraph examination began, John Doe#2 and the polygrapher reviewed the questions and structured them in a manner to make him comfortable to answer “yes” or “no”. John Doe#2 expressed his concern about having been around drugs during the past ten years, but he was informed not to be concerned with the conduct of anyone else. The polygrapher administered three series of questions, and repeated each question three times. The only comment offered by the polygrapher during the examination was that he saw a reaction to a question on whether John Doe#2 had ever lied to a family member. After all questions had been finished, John Doe#2 was unhooked from the machine, and the examiner left the room to review the test results.

      107.  Upon returning to the room, the FBI’s polygraph examiner informed John Doe#2 that he saw reactions to the drug questions and that he believed something was being held back. The examiner indicated that he believed John Doe#2 had failed the examination, although the final decision would be made in Washington, D.C. Upon information and belief, these comments are part of an interrogation tactic to elicit the subject to “confess” and volunteer additional information that might explain the “failing” results of the polygraph examination. John Doe#2 denied that he withheld any information concerning his past drug use. He stated his willingness to retake the examination, but the polygrapher stated that this could not be done and that the results should be announced within seven to ten days. The whole polygraph process lasted no more than two hours.

      108.  By letter dated November 4, 1998, from Charles S. Prouty, Chief, Bureau Applicant Recruiting and Selection Section, Administrative Services Division, FBI, John Doe#2 was notified that his conditional offer of appointment had been rescinded. The letter noted that the results of his polygraph examination were not within acceptable parameters. No other details regarding the results were provided. Following the receipt of this letter, John Doe#2 spoke with FBI Assistant Applicant Coordinator Donna Furlan. Ms. Furlan indicated that scheduling a second test was possible, and that if so the second examiner would not be aware of the results of the prior examination.

      109.  By letter dated November 14, 1998, John Doe#2 requested that the FBI permit him to take a second polygraph examination. He reiterated his position that his past drug usage was well within the FBI’s policy guidelines.

      110.  On or about December 1, 1998, John Doe#2 met with Debra Jones Buggs of the FBI’s Chicago field office for an approximate thirty minute interview to determine whether he would be afforded a second polygraph examination. Ms. Buggs indicated that this was only the second retest request she had conducted, and that 90% of those who take a retest fail. She also confirmed that if granted a second examination, the polygrapher would not be aware of the results from the prior test. On or about February 8, 1999, John Doe#2 was notified that he was granted a second polygraph examination.

      111.  On or about February 12, 1999, John Doe#2 underwent a second polygraph examination which was conducted by Special Agent Mike Pirich, who indicated he was in charge of polygraphs for the field office. Although John Doe#2 had been told by two different FBI employees that the second polygrapher would not be aware of his earlier results, Special Agent Pirich made it clear he knew about the first examination and that John Doe#2 had failed it.

      112.  Before the examination was begun, a review of the questions was performed.

Approximately 10-15 questions were asked by Special Agent Pirich, each a total of three times. Following the end of the examination, Special Agent Pirich reviewed the results with John Doe#2. He was informed that he showed deception on question seven, which pertained to whether he was within the FBI’s drug usage guidelines. Special Agent Pirich began to interrogate John Doe#2 and asked him whether he might have smoked marijuana more than fifteen times. John Doe#2 responded that he had not, and offered that the only issues he could think of were his association with others who have done drugs and his apprehension concerning their conduct. He also noted that there had been one error on his original application in that he had mistakenly indicated no drug usage within ten years, when his one-time use of a drug other than marijuana, at that time, had been nine years prior. However, John Doe#2 made it clear that he had notified the FBI applicant coordinator of that error and corrected it before his polygraph examinations. John Doe#2 was asked to write down that explanation for consideration by officials in Washington, D.C. and he did as instructed.

      113.  By letter dated February 26, 1999, from Patrick M. Maloy, Chief, Special Agent and Support Applicant Unit, Administrative Services Division, FBI, John Doe#2 was notified by the FBI that the results of his second polygraph examination were not within acceptable parameters. He was also informed that no further avenues were available for him to pursue for employment with the FBI.

      114.  By letter dated March 17, 1999, John Doe#2 requested an opportunity for a third polygraph examination, particularly with an examiner who was unaware of the prior test results.

      115.  By letter dated April 21, 1999, Maloy notified John Doe#2 that a third polygraph examination was not authorized, and that no further avenues were available for him to pursue for employment with the FBI.

      116.  The failed FBI polygraphs have foreclosed John Doe#2’s opportunities for federal employment in law enforcement. In March 1999, he applied for a position with the ATF, and he was granted an interview in November 1999. At that time he was questioned about his past drug usage. He provided the same answers he previously provided to the FBI during its application process. He was notified he had passed the interview in April 2000, and he was then scheduled for a physical and drug test. After both tests were completed and processed, he was scheduled to undergo a polygraph examination on

May 31, 2000.

      117.  John Doe#2 attended the polygraph examination with high hopes of passing and clearing up the past problems he had encountered with the FBI’s test. His pre-polygraph interview was conducted by ATF polygrapher Vince Noble. As with his earlier polygraph examinations, he answered all questions truthfully. He also revealed the two alleged failed polygraphs with the FBI and detailed his past drug usage.

      118.  After completing the pre-polygraph interview, he was seated in the lobby while the polygrapher was apparently preparing the questions for my polygraph examination. After a few moments passed, Mr. Noble came to get him and he was again taken into the polygraph room. Upon sitting down he indicated that he and his supervisor, Special Agent Eduardo Fernandez, had called ATF headquarters in Washington, D.C. regarding John Doe#2’s failed polygraphs with the FBI. John Doe#2 was explicitly told that headquarters instructed Mr. Noble to terminate his polygraph proceedings at that moment pending further investigation. When John Doe#2 asked what they needed to investigate, they told him that they were investigating what he had told the FBI versus what he had told the ATF. John Doe#2 stated that he was prepared to take the polygraph at that moment and why not utilize their honesty machine to save everyone a lot of time. However, no polygraph test was administered.

      119.  John Doe#2 was informed that a decision would be made by ATF headquarters in Washington. No response has ever been received. All attempts to find out the status of my application have been handled with the same answers, "the legal team is reviewing your case and a decision will be forthcoming". Upon information and belief, John Doe#2’s past alleged polygraph failures have negatively stigmatized him in his pursuit for employment with the ATF.

D.  JOHN DOE#3 (FBI/DEA)

Drug Enforcement Administration

      120.  In or around 1990, only two years out of high school, John Doe#3 took an interest in working in federal law enforcement generally, and specifically to becoming an agent with the DEA. He enrolled at Northeastern University to pursue a bachelors degree in Criminal Justice. After three quarters of night classes, John Doe#3 decided to quit his job and attend school full-time.

      121.  While at university John Doe#3 maintained a grade point average that placed him in the top one percent of his class. He received multiple academic awards, including a University wide award, which provided him with a $1,500 cash award; the Sears B. Condit award; the President’s award, presented for obtaining the highest academic average; and the Hodgkinson Award, presented for overall academic and personal achievement at the University. 

      122.  A primary reason for John Doe#3’s decision to attend Northeastern was due to its existing cooperative education program with the DEA. The program allowed for highly motivated and academically sound upper classmen to interview with the DEA for a two part Coop with the DEA that lasted 1 year. The program, specifically known as the Special Agent Trainee program, allowed for the hiring of students from Northeastern’s Criminal Justice program who were enrolled full-time in the bachelor degree program. The successfully hired student would be subjected to the same rigorous hiring process as an applicant applying for a Special Agent position. A complete top security clearance would be provided the Special Agent trainee, after which he would undergo two six-month tours with the DEA in a field division of their choice. Once the trainee successfully completed his year of service with DEA, and within 120 days of graduation from college, the individual would then be hired non-competitively as a Special Agent with DEA. 

      123.      Although, John Doe#3 initially was not allowed to interview for the position due to being too new to the university, he appealed his situation to the Dean of the College. Upon the Dean’s recommendation to the Coop office, John Doe#3 was given the chance to interview with the DEA, and he was thereafter accepted for participation in the program.

      124.  In or around December 1991, John Doe#3 began his first six months as a Special Agent trainee in New York City. While there, John Doe#3 became highly interested in the aviation program within the DEA and decided to make it his goal. Once he returned to Massachusetts to continue with his university studies, John Doe#3 began flight training. Within six months, he had obtained a license to fly aircraft. Following that, he began working on his Aircraft Instrument Rating, which he later obtained in or around June 1994. He began his second six months with the DEA in or around December 1992, in Boston. Unfortunately, due to problems with the federal budget, John Doe#3 was forced to resign his non-competitive status with the DEA following his completion with the Boston DEA office in or around July 1993. Upon information and belief, there was no full-time hiring authorized for transition within the DEA from Special Agent trainee status to full-time Special Agent status. John Doe#3 did not, however, let that deter him from his dream of becoming a Special Agent with the DEA. 

      125.  Upon graduation from university with full academic honors, including a 3.9 GPA (Summa Cum Laude), John Doe#3 went straight to work in the narcotics field. He had managed to obtain a job with two Massachusetts police departments and was trained in undercover narcotics techniques. In law enforcement positions, John Doe#3 made hundreds of undercover “buys”. Eventually, he worked for various jurisdictions making drug cases wherever the need arose.  He even worked directly for a federal drug task force that was headed by the DEA, during which time John Doe#3 was utilized in a major crack cocaine investigation. During his entire time in this capacity, from in or around June 1994 to October 1997, John Doe#3 gained a significant amount of experience in the field of drug law enforcement.

      126.      Eventually, John Doe#3 was transferred to a task force closer to his home which allowed him to begin focusing on obtaining a full-time position with the DEA. He began working for the North Eastern Municipal Law Enforcement Council drug task force. He was placed undercover in a large company for three months.  The case was very involved and came to a successful conclusion.

      127.      During John Doe#3’s time with the task force, he learned that the DEA had begun accepting applications for the position of Special Agent. The hiring freeze had apparently been lifted. In or around September 1995, John Doe#3 submitted an SF-171 application with the DEA. He was offered an interview in or around October 1995 with Special Agent John Ryan, the DEA’s recruiter in Boston. During the interview, which consisted of a DEA panel of agents and a writing assignment, John Doe#3 excelled. Four weeks later he was mailed a conditional offer of employment with the DEA.

      128.  John Doe#3 was told to come to Boston to see Special Agent Ryan to offer a drug usage statement. During that statement, John Doe#3 was advised to be very sure of the “occasions” that he used any illegal narcotics. He was advised and aware of the fact that he would be required to submit to a polygraph exam, something he had never done before. John Doe#3 stated that he had experimented with marijuana on four or five occasions when he was sixteen years old. He also stated to the recruiter that he was not comfortable in being very specific due to the extended period of time that had elapsed since the experimentation (ten years). It was such a non-event in John Doe#3’s life that he truly had a problem recalling the exact number of times. The recruiter stated that this response was sufficient and John Doe#3 would be okay as long as he was truthful. The application process continued, and John Doe#3 underwent a physical fitness test with excellent results, and then proceeded to the polygraph.

      129.  On or about November 13, 1995, John Doe#3 was given a polygraph by Special Agent Jimmy Fox from the Atlanta Division. Prior to the examination, John Doe#3 remembered that during his initial drug statement made in or around 1991, while he was interviewing for the Special Agent Trainee position, he had told the Special Agent recruiter that he could not specifically recall the number of his earlier marijuana experimentation. The experimentation had occurred when John Doe#3 was 16 years old and in High School. Special Agent David Golia, his recruiter, assured John Doe#3 that as long as he was truthful with the insignificance of that experimentation, he would not have to worry about anything coming up to discredit that statement during an extensive background check. With that, John Doe#3 hesitantly provided the specific number of occasions of experimentation as “two”.  This number was provided due to two specific occasions that came to mind regarding John Doe#3’s use of marijuana.

      130.      Unfortunately, at the time of John Doe#2’s second drug statement, the one in which he would be subsequently polygraphed, he could not recall the exact number of times he had stated on his initial disclosure. Instead, John Doe#2 was confident that his accuracy and honesty would be evident by the fact that nothing had ever come to surface during his earlier background exam, and his years of undercover police work, and that the polygraph he now faced would fail to reveal any problems.

      131.  John Doe#3 was placed in a chair within the polygraph room for a pre-interview.  During that interview, he was informed about the science of polygraph and how it worked. He was told about the search for applicants of “high caliber” and under what circumstances one would be considered not to fall in that category. This issue was placed in the realm of drug use and its effect on a person’s caliber. John Doe#3 was asked repeatedly if there was anything he would like to change regarding his drug usage statement. He explained that he was not entirely comfortable with the exact specifics of his experimentation, as it had occurred ten years prior when John Doe#3 was sixteen years old. He also explained to Special Agent Fox that he had been involved with undercover drug law enforcement for approximately the past two years, and that included buying all types of various controlled and illegal narcotics. Special Agent Fox informed John Doe#3 that he would only have a problem with the procedure if he was outright lying about the statement, and that being merely uncomfortable or nervous about the subject matter would have no effect. 

      132.  Prior to placing John Doe#3 on the polygraph machine, however, the examiner reiterated that drug usage, even experimentation is taken very seriously by the DEA and that any attempts to mislead the DEA would have detrimental effects. Once on the machine, John Doe#3 went through the questions without a problem, although he did feel very nervous throughout the exam, especially with respect to the drug usage questions. John Doe#3 believed he heard a change in the examiner’s voice and length of delay as he questioned him in that area. The examiner almost made John Doe#3 feel as if he was being dishonest. 

      133.  All of a sudden, the examination became confrontational. Special Agent Fox unhooked John Doe#3 from all the machine’s leads and began to interrogate him with regards to the drug usage questions, stating that John Doe#3 was being dishonest and he should immediately disclose the information he was withholding. Special Agent Fox then told John Doe#3 to leave the room for approximately fifteen minutes and think about what they had just discussed. John Doe#3 was left to think about his statements and began doubting himself. He thought to himself, “I must be forgetting something, those things (polygraph) don’t lie.” Yet, he was at a total loss, and went back into the room with nothing new to explain. As he sat down, he was allowed to review a piece of paper written on by the examiner.  The paper was handwritten by Special Agent Fox and listed every type of narcotic you could possibly think of, with a column next to each drug identified as “results”. Special Agent Fox then stated something to the effect that “either we start talking or I am going to polygraph you on each drug I have before me”. 

      134.  John Doe#3 explained to Special Agent Fox the exact specifics of his experimentation, as best he could recall. Once he finished with his explanation, Special Agent Fox informed John Doe#3 that he had made a very obvious mistake in his earlier statement. He explained that what John Doe#3 had disclosed were “occasions” of usage of marijuana, not “times” of usage. John Doe#3 explained that on the occasions of his experimentation, he had been in large group settings where there were multiple offerings of marijuana to try. In fact, on those occasions, he had been passed a “joint” twice. Special Agent Fox stated that this would be considered “two” times, not one. This was the first time John Doe#3 had ever heard of a so-called definition as to what constituted usage, and  that a distinction existed between “occasions” and “times”.

      135.  John Doe#3 was then provided with a form to write out his mistake for headquarters to review. He was not, however, asked to verify this fact on the polygraph. John Doe#3 was also told that everything looked positive and to continue on with the hiring process, which he did. Approximately two to three weeks later, he conducted the physical fitness portion of the process. That exam was completed with results well above average.

      136.  On or about December 24, 1995, John Doe#3 received a letter from the DEA that stated he had been evaluated amongst his peers for the position of Special Agent, but unfortunately was not selected. John Doe#3 immediately attempted to get some answers, but to no avail. He knew he had competed well above average in all aspects of the process; in fact, he was told his oral boards scored him in the top ten percent. It took almost four months of writing and corresponding to finally learn the truth through the Freedom of Information Act.  

      137.  By letter dated April 9, 1996, John Doe#3 received records from his DEA file. It revealed that Special Agent Fox had drafted a Report of Investigation dated December 6, 1995, noting that he detected deception (significant response) in two of the four drug related questions:

               1. Have you ever sold any illegal drugs? Answer:  NO

               2. Have you intentionally left anything off your drug use statement? Answer: NO

               3. Have you deliberately withheld any important information from your                     application or SF86? Answer: NO

               4. Did you ever use drugs while employed as a law enforcement officer?

            Answer:  NO

      138.      According to the December 6, 1995, report, Special Agent Fox believed he detected a significant response to the responses John Doe#3 offered to questions 2 and 4 above. Upon learning this John Doe#3 was enraged. First, with respect to question #2, he had already explained to Special Agent Fox that he did not intentionally leave anything off his prior drug usage statements. The only reason John Doe#3 executed a supplement to his earlier statement that “admitted” to additional usage was due to Special Agent Fox having advised him to do so after defining what, at least in the mind of Special Agent Fox, constituted past “usage” of marijuana. Special Agent Fox stated that John Doe#3 had erred in his original assumption that one “occasion” of experimentation could include two “times” puffing a marijuana “joint”.  He stated to John Doe#3 that the supplement only served the purpose of “clarification” and did not indicate an attempt at deception.

      139.      Secondly, with respect to question #4, nothing could be more disturbing to John Doe#3.  He took then and takes now his law enforcement oath and mission very seriously. Indeed, he has devoted his life to it. To have the polygraph machine and Special Agent Fox indicate that John Doe#3 had used drugs while employed as a law enforcement officer was an injustice. Additionally disturbing was that Special Agent Fox did not even raise the issue of a possible problem with that area. In fact, Special Agent Fox said the opposite.

      140.  Also revealed by the records released through his Freedom of Information Act request was an apparent discrepancy between John Doe#3’s original drug use statement made in 1991, as a Special Agent Trainee and the subsequent statement he provided in 1995. The earlier statement, provided to Special Agent Golia during a brief interview, stated that John Doe#3 experimented with marijuana while in high school on two occasions. As stated above, this statement was made under pressure from Special Agent Golia to state an exact number. John Doe#3 explained at the time that he was uncomfortable in providing an exact number of occasions. The events had taken place years before when John Doe#3 was 16 years old. Yet Special Agent Golia insisted that the paperwork required a specific number and John Doe#3 gave his best estimate. The statement John Doe#3 made in 1995 was that he had experimented with marijuana while in high school at 16 years of age on four or five occasions. At that time, he had explained that he was unsure of the exact amount due to the passage of ten years. However, John Doe#3 was again forced to give a specific number and he did. He consistently and honestly provided the DEA with information about his past drug usage and changed the numbers only to reflect the instructions of DEA personnel. Finally, in the file there was a letter from Dennis Hoffman, Chief Inspector, to Michele Leonhart, Executive Assistant for Recruiting, dated November 7, 1996, that indicated John Doe#3 was not recommended for hire based primarily, if not entirely, on matters relating to the polygraph examination.

      141.      Following the receipt of his DEA file, John Doe#3 immediately began to pursue any available appellate process, but soon found that none existed. By letter dated April 22, 1996, John Doe#3 responded to the DEA findings, as well as requested a review of his application. John Doe#3 even indicated his willingness to undergo a second polygraph examination. That request was denied.

      142.  John Doe#3 eventually spoke to the supervisor in Special Agent Programs who stated he had read John Doe#3’s entire file and was sending it back to a new review panel for reconsideration. This too resulted in a denial. The board responded by stating words to the effect that “We’re not stating you cannot obtain a top secret clearance in the government or a job as a Special Agent, we’re stating that you are not suitable for the DEA”. The board concluded by stating that there are no other avenues available for John Doe#3 to pursue a job with the DEA.

      143.  In or around January 1998, John Doe#3 applied for the position of Special Agent under vacancy announcement BA-98-01. It was his understanding that the DEA’s guidelines may have been amended. By letter dated August 10, 1998, Special Agent George Papantoniou, Special Agent Programs Manager, notified John Doe#3 that a review of his file revealed that he was still ineligible for the position of Special Agent and that the DEA’s hiring policies “provide no further avenues for you to pursue employment as a DEA Special Agent.”

Federal Bureau Of Investigation

      144.  After being denied employment with DEA, but prior to receiving his DEA file through the Freedom of Information Act, in or around February 1996, John Doe#3 applied to the FBI as an Investigative Specialist for the Special Surveillance Group SSG. The lengthy application process included answering seven knowledge and skills assessment questions. After the answers to those questions were reviewed in Washington at FBIHQ, John Doe#3 was selected and scheduled for an interview. As a result of a successful interview, in or around March or April 1996, he was extended a conditional offer of employment and polygraphed.   

      145.  The polygraph examiner stated outright that with regards to the drug questions the FBI does allow up to fifteen times of experimentation, but if it were up to him there would be no one working there who had ever used illegal drugs even once. Upon information and belief, this type of biased attitude is typical among FBI polygraphers and unfairly taints the polygraph examination.

      146.      Recalling his earlier incident with the DEA, John Doe#3 instantly became very nervous. Soon after starting the test, the polygrapher stated that John Doe#3 had failed the questions on drugs and began to ask him to offer some admission as to why. John Doe#3 explained that he was positive he had never used any narcotics other than experimentation with marijuana and that did not exceed eight “times” - a number that took into account the DEA’s method of counting - thus keeping him within the maximum parameters set by the FBI of fifteen times. Following that exchange, the polygraph examiner led him from the room. The recruiter then rescinded John Doe#3’s conditional offer of employment right there on the spot and led him out the door. Approximately two months later, in or around May or June 1996, he received a letter from the FBI stating that he had failed the polygraph and, therefore, could not continue on in the hiring process. 

Subsequent Law Enforcement Experiences

      147.      Although completely dejected by the experiences with the DEA and FBI, John Doe#3 also took the State Trooper examination for a State Police agency and was selected for an interview. Following the interview, John Doe#3 was offered a conditional appointment of employment contingent on a successful medical, background, psychological, drug test and polygraph.

      148.  The State Police polygraph examination consisted of an even more intense level of questioning with regards to all aspects of life style, including use of narcotics, than that of either the DEA or FBI. John Doe#3 explained to his polygraph examiner what had taken place with his federal polygraph examinations, particularly that he had had a problem on the drug usage questions because of the distinction between “times” versus “occasions”. While being polygraphed by the State Police, the polygrapher went through the drug questions with John Doe#3 on three occasions. After the first series, the polygrapher informed John Doe#3 that he showed absolutely no reaction at all. The examiner brought that up before continuing on with the second series of the same line of questioning. During the second series, John Doe#3 felt more apprehensive with the issue as it related to his earlier experiences. The examiner noted that John Doe#3 showed some response to the second series and inquired why. John Doe#3 explained that it was the drug question and that he was thinking about his earlier experiences with it. The polygrapher stated that this made complete sense. On the third series, John Doe#3 again showed no significant reaction to the drug questions.

      149.  John Doe#3 passed the State Trooper polygraph examination. Of note, prior to administering the polygraph examination, the major crimes division of the State Police conducted an in-depth investigation of John Doe#3’s background including his experiences with the federal government, and found no inconsistencies in any of John Doe#3’s prior drug usage statements. The State Police called the DEA/FBI incident “their loss and our gain”. 

      150.  In May 1997, John Doe#3 left the State Police to once again become a police officer in Massachusetts. Since returning to his home state, John Doe#3 has obtained a Master’s Degree in Criminal Justice and, despite his experiences, he continues to pursue his long held dream to work as a federal law enforcement officer.

      151.  John Doe#3 is in the process of applying for employment as a federal law enforcement officer with the USSS. During the application process he will be required to reveal the fact that he failed prior FBI  and DEA polygraph examinations on the drug usage questions. Additionally, the records of his failed polygraph examinations will be provided to other federal law enforcement agencies by the FBI and DEA. Since John Doe#3 did not lie to either the FBI or DEA, the fact that these federal agencies will inform prospective employers that he failed the polygraph will stigmatize him.

E.   JOHN DOE#4 (FBI/SECRET SERVICE)

      152.  After John Doe#4 graduated from college, he investigated career opportunities with the FBI, the DEA and the USSS. He was advised to first attain some "real life" experiences and then reinquire after 3-4 years. He entered the field of education and started to make a name for himself. All the while, however, he kept the prospects of government employment in the back of his mind. He decided to wait to apply until he had finished a Master's degree in Educational Administration, which John Doe#4 completed in February 1998.

      153.  As he was completing the Master's program, John Doe#4 made contact with all three agencies to explore his options, if any, for employment. He spoke with a recruiter from each agency and promptly received application packages. Much of the paperwork was the same, although some forms were unique to a specific agency, and he completed the requirements as quickly as he could.

      154.      Although granted an interview with the DEA, John Doe#4 decided to forgo employment with the DEA for reasons unrelated to this action.

United States Secret Service

      155.  In or around October 1998, John Doe#4 met with Special Agent Jack Rohmer, Assistant to the Special Agent in Charge, in the New York City field office of the USSS. They discussed some basic questions about job history, cut in salary, why John Doe#4 wanted to join the Secret Service, his past drug use, any past involvement with the police, his education credentials and other topics. This meeting lasted approximately one hour, and John Doe#4 was told that he would be contacted to set up a testing date to take the Treasury Enforcement Agent (TEA) Exam.

      156.  John Doe#4 took the TEA exam on or about October 23, 1998. On or about November 2, 1998, he received notice that he had achieved a passing score. In the letter of notification he was given a conditional offer of employment pending his passage of the remaining application phases. He was then scheduled for a Phase II writing exercise and panel interview for on or about November 19, 1998. Prior to the writing exercise, John Doe#4 reviewed his application package with Special Agent Scott Alschwang to see if any of his previous answers or information in his application package had changed. After it was determined that nothing had changed, John Doe#4 completed the writing exercise, which was to listen to a cassette that gave details of a crime scene and write a report as clearly and detailed as possible.

      157.  After concluding the written exercise, John Doe#4 met with a panel of three Secret Service Agents and was asked about 20 questions, all of which he had to answer in order to complete the exercise. This lasted about 4 hours and John Doe#4 left being told that if he passed he would be contacted for a polygraph exam and medical check-up.

      158.      Shortly after his panel interview, John Doe#4 was contacted by Special Agent Alschwang and was told that he had passed the written exercise and interview. Special Agent Alschwang told John Doe#4 that he and his colleagues were very impressed with his interview and said he was a leading candidate in the New York City field office for the next class of Agent Training.

      159.  On or about January 8, 1999, John Doe#4 met with Special Agent Craig Hutzell for his polygraph examination. They proceeded to a polygraph room where the testing process was explained. John Doe#4 inquired about the test as he had never seen or taken one before. He signed several forms indicating that anything that he disclosed could be used against him, that he waived his rights and acknowledged that the test was to be audio-taped. During the pre-test discussion, Special Agent Hutzell asked John Doe#4 if he liked porno magazines and movies, if he was the type of guy that liked to experiment with fetishes, such as sex with animals, and if he had ever cheated on a girlfriend. Because of John Doe#4’s background as a teacher, he was also asked if he enjoyed watching

little kids, which seemed to be a reference to another sexual fetish. There was also discussion about John Doe#4’s mental health. Afterwards, Special Agent Hutzell started the audiocassette and began with the testing.

      160.  The test lasted five hours and was complete hell. Never before has John Doe#4 experienced anything so physically and mentally draining. They first did practice runs through the questions so John Doe#4 could get a feel for the process and then he was hooked up to the polygraph machine. The first set of questions dealt with John Doe#4’s knowledge and experiences with foreign contacts and espionage. He "passed" this portion of the testing. Although Special Agent Hutzell explained that he was getting some funny readings, he indicated he did not see any problems and never elaborated further.

      161.  Next they proceeded to questions about drug use and theft. Special Agent Hutzell's demeanor towards John Doe#4 completely changed. He was hostile, rude and much more demanding than during the previous questioning. During the testing Special Agent Hutzell raised his voice telling John Doe#4 to breathe normally and to stop moving around. John Doe#4 had no idea what Special Agent Hutzell was talking about as he had not moved and was breathing normally. Special Agent Hutzell insinuated that John Doe#4 was trying to "throw the machine off". After this series of questions, Special Agent Hutzell left the room to examine the read out and he returned saying that John Doe#4 was being deceptive. John Doe#4 was shocked and had no idea what to say. He was nervous and his mind was racing a hundred miles an hour.

      162.      Special Agent Hutzell went on about John Doe#4’s honesty and what the Secret Service Badge stood for and whether or not John Doe#4 was the kind of person who liked pornography and other deviant subjects. Special Agent Hutzell questioned John Doe#4 further about any prior drug use and whether John Doe#4 had ever stolen before. John Doe#4 tried to recount everything he had done prior in his lifetime. He thought that perhaps it was a possibility he had smoked marijuana one or two additional times that he had not remembered, particularly because it had been so many years since the incidents had occurred. Special Agent Hutzell reworded the same questions and changed the order in which he asked them and again he said that John Doe#4 registered deceptive and that he was surely lying.

      163.  After 5 hours of testing, Special Agent Hutzell suddenly became compassionate and once again cordial in his dealings with John Doe#4. He said "At this point we've reached a point in the road where you can either run into a roadblock or a barrier. I can help you out with the roadblocks, but there's nothing I can do about a barrier. If there's something you want to tell me, then you should think about it now." John Doe#4 inquired about what Special Agent Hutzell meant, but was so preoccupied with the accusations that he had been lying that did not really hear Special Agent Hutzell’s response.

      164.  In response to Special Agent Hutzell’s intimidating interrogation tactics, accusations and coaxing, John Doe#4 compromised his integrity and reluctantly changed his answer regarding prior drug use. Instead of stating that he smoked marijuana seven times (once during senior year of high school, and the other occasions during his freshman year of college), he changed his answer to read “less than 15 times” and initialed the change on the application. No further specific information or number was provided, and this range still fell within the USSS’s acceptable parameters of prior drug use. John Doe#4 hoped that perhaps this response would mollify Special Agent Hutzell since he had explained to John Doe#4 on more than one occasion that making a change was the only option to keep John Doe#4’s application alive. After making the change, Special Agent Hutzell ended the testing explaining that he was not permitted to test anyone beyond 5 hours.

      165.  A few days later Special Agent Alschwang informed John Doe#4 that he had probably failed the polygraph. By letter dated January 26, 1999, John Doe#4 appealed to Special Agent Rohmer that the USSS consider all aspects of his application package and requested a second polygraph examination.

      166.  By letter dated February 22, 1999, from Donna L. Burgess, Chief, Special Agent and Office of Investigations Support Branch, USSS, John Doe#4 was formally notified that he was not selected for a position as a Special Agent. No details were provided to explain the basis of the decision. Upon information and belief, the decision not to hire John Doe#4 was based entirely on his polygraph results.

Federal Bureau Of Investigation

      167.  John Doe’s application with the FBI was moving along in conjunction with the USSS. On or about June 11, 1998, he took the Phase I test. By letter dated June 16, 1998, from Roger H. Wheeler, FBI Personnel Officer, John Doe#4 was notified he had passed the test. On or about October 12, 1998, John Doe#4 had an informal meeting with Special Agent Lillian Burke to discuss his application, confirm if any info had changed or if there was anything he wanted to add. The meeting was casual and very positive. Special Agent Burke indicated that John Doe#4 had a strong application and the key was going to be passage of the Phase II testing and the polygraph.

      168.      Special Agent Burke and John Doe#4 corresponded during the next few months to make sure his application was in order. John Doe#4 was nervous about the Phase II testing, but excited and confident as well. He took the Phase II test on or about January 7, 1999. It consisted of a writing exercise (similar to that administered by the USSS) and a panel interview with three senior agents (much more formal and structured than that of the USSS). At the conclusion of the testing John Doe#4 met with Special Agent Burke and explained that he was scheduled for the USSS polygraph the following day. John Doe#4 asked for advice because he really wanted to pursue the position with the FBI, but of course did not want to throw away an opportunity with the USSS in the event the FBI did not work out. Special Agent Burke advised John Doe#4 to see if he could "stall" with the USSS and await the results of his Phase II FBI testing.

      169.  John Doe#4 went ahead with the USSS polygraph on or about January 8, 1999, and afterwards immediately called Special Agent Burke to inform her that he thought he had failed the test. Special Agent Burke responded that he should wait to see if he passed the FBI’s Phase II test.

      170.  By letters dated January 25, 1999, from Edward R. Leary, Deputy Assistant Director, Personnel Officer, Administrative Services Division, FBI, John Doe#4 was given a conditional offer of employment. One of the letters indicated that he would be required to “pass a polygraph examination which will address security issues, veracity of the information on the application, as well as possible drug usage. The guidelines of our drug policy indicate that an applicant is unsuitable for employment if marijuana was used during the last three years or more than fifteen times or usage of any illegal drug(s) or combination of illegal drugs, other than marijuana, more than five years or during the last ten years.”

      171.      Following John Doe#4’s receipt of his conditional offer of employment, Special Agent Burke told him that he was well qualified and one of the top, if not the top, candidate(s) in the New York City field office. On or about February 4, 1999, John Doe#4 took the PSI (Personal Security Interview) with two new special agents (which lasted about 45 minutes) and then went to the polygraph with Special Agent Lilly.

      172.  John Doe#4’s experience with this polygraph examination was completely different than the one he had with the USSS. Special Agent Lilly questioned him prior to the actual test, including about his experiences with the USSS. After being hooked to the polygraph machine, Special Agent Lilly then ran John Doe#4 through the questions and indicated that he was having "trouble" with the drug question and that maybe John Doe#4 had stolen something when he was younger. Having been through the process once before, John Doe#4 was a little more relaxed this time, but still perplexed and distraught that he was being called a "liar".

      173.  John Doe#4 refused to change his answers and emphatically denied any deception. He explained that he would not compromise his integrity or the truth. Special Agent Lilly explained that he could not help him unless he "talked" to him. John Doe#4 again explained there was nothing he wanted to change and then Special Agent Lilly said the testing was complete. The process lasted approximately 2.5 hours. Special Agent Lilly explained that it did not look promising that John Doe#4 had passed, but he needed to send the charts to Washington, D.C. for review. John Doe#4 asked why and Special Agent Lilly explained that he had registered deceitful about drugs. He asked why he had allegedly registered deceitful about stealing as well, but Special Agent Lilly had no answer and returned to the drug question. John Doe#4 spoke with Special Agent Burke the next day and she confirmed that he had probably failed the test.

      174.  By letter dated February 16, 1999, from Patrick J. Foran, Section Chief, Administrative Services Division, FBI, John Doe#4 was given official notification from the FBI that his polygraph results were not within acceptable parameters and that his conditional offer of employment was rescinded.

      175.  He appealed to the FBI for another examination. By letter dated June 10, 1999, from Michael E. Varnum, Section Chief, Administrative Services Division, FBI, he was informed that his request for an additional pre-employment polygraph had been denied. The letter indicated that “[a]lthough the FBI does offer a polygraph retest under certain circumstances, you do not meet the criteria required and will not be afforded further consideration for employment.”

      176.      Following his notification from the FBI that he had “failed” the polygraph, John Doe#4 wrote to members of Congress to seek a further remedy. As a result, several members forwarded his letter to the FBI for direct comment, and eventually received responses.

      177.  For example, by letter dated October 4, 1999, Edward R. Leary, Deputy Assistant Director, Personnel Officer, Administrative Services Division, FBI, wrote to Congressman John E. Sununu and indicated that John Doe#4 was disqualified from further consideration based upon two significant factors: “the accuracy of information which he provided to the FBI on his application for employment concerning his prior usage of an illegal drug; and a determination that [John Doe#4]’s responses during a pre-employment polygraph examination had been deceptive. With regard to the latter factor, I believe that it is noteworthy that during [John Doe#4]’s interview with an FBI representative on

February 4, 1999, following a pre-employment polygraph examination, he advised that he had experienced a similar problem -- a deceptive polygraph examination -- when he was afforded a polygraph in connection with his application for employment with the United States Secret Service (USSS) in January, 1999. [John Doe#4] stated that after failing the latter polygraph exam, he had admitted to a USSS representative that he had used an illegal drug on 15 prior occasions. This amount of drug usage is inconsistent with the drug usage which he disclosed on his application for employment with the FBI.”

      178.  Mr. Leary also noted that the decision not to afford John Doe#4 a second polygraph examination rested upon the grounds cited above. He added that “[s]pecifically, his self-admitted lack of forthrightness in his application for FBI employment, i.e., his failure to fully disclose the actual extent of his prior usage of an illegal drug substance, and his failure of the pre-employment polygraph examination which he was afforded.”

      179.  John Doe#4 made no such admission to the FBI. Upon information and belief, the Special Agent obviously misunderstood what John Doe#4 had stated. While he had changed his marijuana usage information on his USSS application from seven times to less than fifteen (without indicating any specific number), there was no derogation from the information provided in John Doe#4’s FBI application from what he later stated to any Special Agent. Upon information and belief, the fact that John Doe#4 failed the USSS polygraph examination served as the basis, at least in part, for the FBI’s decision to rescind his conditional job offer.

      180.  Like many other innocent individuals, John Doe#4 had experimented on several occasions with marijuana during a six-month period in college almost one decade earlier. And although his polygraph results indicated deception on theft, he had never stolen any item in his life. Yet he was never afforded due process to prove otherwise before the FBI unilaterally terminated his application.

      181.  John Doe#4 is in the process of applying for employment as a federal law enforcement officer. At some point during the application process he will have to reveal the fact that he supposedly failed polygraph examinations with both the FBI and USSS. Both of these agencies will also reveal to other agencies that he failed the tests. Upon information and belief, as a result, his chances of attaining employment in the federal law enforcement arena will be significantly diminished, if not eliminated altogether.

 

F.   JOHN DOE#5 (SECRET SERVICE)

      182.  John Doe#5 has been an employee of a police department since 1990. Since 1997, he has been serving as a Detective in his department’s financial crimes unit. He has taken and passed three preemployment polygraph examinations, which included extensive questioning concerning past drug use, without any problems in connection with his former and current law enforcement positions. At no time in his life has John Doe#5 ever used or experimented with illegal drugs.

      183.  In or around October 1997, John Doe#5 submitted an application to the USSS. He made his first attempt at passing the Treasury Department’s Enforcement Examination in or around March 1998, but was notified by letter dated April 7, 1998, that he had not passed. However, on or about June 19, 1998, he re-took the exam and was notified by letter dated June 29, 1998, that he had passed. As a result, he was extended a conditional offer of employment. He was then invited to participate in an oral interview in or around August 1998.

      184.  Upon information and belief, during the interview he impressed the oral board. He was shown his ranking by Secret Service Agent Polygraph Examiner Ignacio Zamora and it stated he was “mature beyond [his] years and overall above average as an applicant for the Secret Service.”

      185.  On or about October 13, 1998, he was administered a polygraph examination by Special Agent Rob Savage that lasted approximately seven hours. Special Agent Savage administered the first series of polygraph examination questions in the area of national security. After administering three charts, Special Agent Savage exited the room. Upon re-entry into the room, Special Agent Savage told John Doe#5 that he was not a threat to national security; however, he was having difficulty with the other areas (later identified as control questions) of the test and would need to get the scores down if he was going to get through the remainder of the test. John Doe#5 was completely shocked, devastated and emotionally and physically stimulated as a result of Agent Savage's comments. 

      186.  After receiving this stimulation, Special Agent Savage administered the second series of examination questions regarding crimes and drug usage. Three charts were administered. Special Agent Savage again exited the room to review the charts. Upon his re-entry into the room, Special Agent Savage told John Doe#5 that he was still having difficulty with the scores and that they were not within an acceptable range. Special Agent Savage specifically accused John Doe#5 of having difficulty in the area of the drug questions. This caused John Doe#5 to become exceedingly upset and visibly animated during his truthful denials. This included, but was not limited to, his hands uncontrollably trembling.

      187.      Special Agent Savage administered a third series of questions regarding drug usage and serious crimes. After reviewing the charts, Special Agent Savage again accused John Doe#5 of being deceptive in the area of drug usage and serious crimes. This further caused him to become extraordinarily upset with Special Agent Savage. Even after Special Agent Savage dismissed him, John Doe#5 was so upset that he could not sleep for over twenty-two hours. The next day, despite the fact he had been at work for a couple of hours, his hands were still trembling.

      188.      Special Agent Savage unnecessarily and unethically stimulated John Doe#5 after administering the national security questions. Upon information and belief, this ended any objective and reliable polygraph examination causing all other results to be flawed.

      189.  After receiving this unnecessary stimulation, Special Agent Savage unethically continued to administer the polygraph on parts 2 and 3 for several more hours. Special Agent Savage continued to unnecessarily stimulate John Doe#5 by making accusations after each polygraph examination, further causing him to become increasingly upset and invalidating the results of the tests.

      190.      Based on the difficulties experienced during the polygraph examination, John Doe#5 requested a second examination. Special Agent Zamora scheduled another examination for on or about October 27, 1998. Although John Doe#5 arrived at the scheduled time, Special Agent Zamora never showed up. Special Agent Zamora said he was unable to obtain a flight, and made no attempt to contact John Doe#5 to cancel their appointment, despite having his home, work and pager numbers.

      191.      Finally, a second polygraph examination was conducted on or about October 30, 1998, at the San Francisco field office. After Special Agent Zamora arrived over one hour late, he began an examination that lasted approximately six hours.

      192.      Before starting the examination, Special Agent Zamora told John Doe#5 that the previous polygraph examination with Special Agent Savage indicated he was having difficulty with the honesty and integrity questions (control questions). John Doe#5 replied that Special Agent Savage only mentioned he was showing deception for marijuana/drug usage. Special Agent Zamora replied that what Special Agent Savage told John Doe#5 was "not necessarily true." 

      193.      Special Agent Zamora conducted the first series of polygraph questions regarding these issues. The control questions essentially remained the same, although the relevant questions were slightly different. After having left the room to review the charts of the first examination, Agent Zamora re-entered the room. He said John Doe#5 was still having trouble with the drug questions, as well as with the honesty and integrity areas. This was followed by Special Agent Zamora accusing John Doe#5 of hiding drug usage and serious crimes. John Doe#5 was very angered at the thought of these accusations and he adamantly denied them. After all he had been a member of the police department for nearly a decade, had an unblemished service record and had passed three prior polygraph examinations. John Doe#5 became externally and internally stimulated, again, to the point where his hands were trembling.

      194.  By this time Special Agent Zamora had unnecessarily and unethically stimulated John Doe#5. Upon information and belief, this ended any objective and reliable polygraph examination causing all other results to be flawed.

      195.      Special Agent Zamora then yelled at John Doe#5 in a forceful voice while simultaneously slapping his thigh and then extending his arm toward John Doe#5 with his index finger pointing directly at John Doe#5. This caused John Doe#5’s body to react backward as if he was about to be hit. Special Agent Zamora, with his index finger still extended toward John Doe#5, exclaimed with a contorted face, "I hope you're not that type of person, because if you are we don't want you in the Secret Service." Special Agent Zamora then pointed to the tape recorder and said, "I'll even say that on tape."

      196.      Special Agent Zamora then administered a second series of questions to John Doe#5 covering the same issues. The control and relevant questions were basically the same. After the examination, Special Agent Zamora again told John Doe#5 that he was having difficulty with the drug and serious crime issues. Again, John Doe#5 adamantly denied these allegations and became upset to the extent that his hands were trembling. Special Agent Zamora then said there would be no more examinations.

      197.      Despite Special Agent Zamora's statement there would be no more polygraph testing, he then said he would conduct the third series of questions. John Doe#5 told him that given his emotional state he believed the results would be flawed. Special Agent Zamora said the polygraph does not measure "anger."

      198.  The third series of questions was conducted and Special Agent Zamora re-confronted John Doe#5 saying he was not truthful in the area of drug usage and serious crimes. Special Agent Zamora then said, "This [polygraph exam] confirmed what I thought all along." John Doe#5 again adamantly denied these accusations.

      199.      Special Agent Zamora then exited the room. He re-entered a short time later, ignored John Doe#5 and walked in a very deliberate manner straight to his lap top computer. Slowly and methodically, Special Agent Zamora unplugged the cords from the printer with an angry and disgusted look on his face. He then exited the room again. From a nearby room John Doe#5 could hear a bag zipping, and he heard Special Agent Zamora make what sounded like a personal phone call, and then reserve a flight back to Los Angeles. All this occurred while John Doe#5 was required to remain seated in a hardback interview chair.

      200.  Both Special Agents Zamora and Savage told John Doe#5 it was their beliefs, based solely on the polygraph results, that he was withholding information, and that nothing disclosed was disqualifying. Furthermore, Special Agent Zamora said that his results were the same as Special Agent Savage's. Thus, the result was really more "inconclusive" than deceptive. 

      201.  Upon initiating an inquiry with the San Francisco field office in December 1998, John Doe#5 was told his application had been sent back to Washington with a favorable status pending the polygraph evaluation. However, by letter dated January 7, 1999, from Donna Burgess, Chief, Special Agent and Office of Investigations Branch, John Doe#5 was notified that he was not selected for a position as a Special Agent of the USSS.

      202.  By letter dated January 21, 1999, John Doe#5 filed a complaint with the USSS regarding the conduct of the two agents who administered his polygraph examinations. He requested copies of the examination audio tapes and charts.

      203.      Having received no response to his complaint, he called the Director’s Office on or about February 12, 1999. He was told the USSS had no record of the complaint, despite the fact that it had been sent via certified mail. Therefore, John Doe#5 re-mailed his complaint on or about February 17, 1999. It was received by the USSS on or about February 18, 1999.

      204.  By letter dated February 22, 1999, but postmarked March 2, 1999, Kevin T. Foley, Assistant Director, Forensic Science Division, denied John Doe#5’s complaint. He indicated that a “review of your polygraph case file was conducted by a supervisory U.S. Secret Service Polygraph Examiner currently assigned to the Department of Defense Polygraph Institute. This review included the scoring of all charts, review of allied documents, and listening to the audio tapes that were recorded during both of your polygraph examinations. As a result of this review, the U.S. Secret Service has concluded that both of the above polygraph examinations were conducted in a manner consistent with U.S. Secret Service and Department of Defense Polygraph Institute policies and procedures.”

      205.  By letter dated March 9, 1999, John Doe#5 informed the USSS that he had spoken with the Department of Defense Polygraph Institute and they confirmed to him that neither Special Agents Savage or Zamora had followed accepted polygraph examination technique standards. He also added that he believed the USSS had failed to conduct a competent investigation into his case.

      206.  By letter dated March 18, 1999, Assistant Director Foley essentially reiterated the USSS position espoused in his February 22, 1999, letter.

      207.  In or around April 1999, an attorney acting on John Doe#5’s behalf spoke with Donna Cahill, an attorney from the Secret Service’s Office of General Counsel. Cahill apparently reviewed John Doe#5’s file and left a message with John Doe#5’s attorney that the Secret Service stood behind its polygraph results.

      208.  John Doe#5 is in the process of applying for employment as a federal law enforcement officer. During the application process he will have to reveal the fact that he supposedly failed two earlier USSS polygraph examinations. Even if not required, he will still reveal this fact so as to be up front at all times. Additionally, his USSS files are available for review by any law enforcement agency that would ask for them from the USSS. Since John Doe#5 did not lie about his past drug usage - as there is none - to the USSS, upon information and belief, the fact that the USSS will notify his prospective employers that he failed the polygraph regarding past drug usage will stigmatize him.

G.  DARRYN MITCHELL MOORE (SECRET SERVICE)

      209.      Moore is currently a broadcast news journalist for a television station. Prior to that he served as a criminal investigator for the City of Atlanta Police Department for more than a decade including with the narcotics unit. The USSS, in fact, provided Moore with a certificate of appreciation for his “outstanding cooperation in support of the protective responsibilities of the United States Secret Service during the 1996 Summer Olympic Games.” At no time in his life has Moore ever used or experimented with illegal drugs.

      210.  In or around June 1998, Moore met with Special Agent Eddie Johnson and filed an application with the USSS in the Atlanta Field office. His application was accepted and he was given a workbook to study for the Treasury Department Enforcement Exam (TEA). In or around July 1998, Moore took the TEA exam in the Atlanta Field Office.

      211.  In or around August 1998 Special Agent Johnson informed Moore’s wife, who is also a Special Agent in the Atlanta Field Office, that he failed the test. Moore called Special Agent Johnson and inquired about the results, which he said were unavailable. Special Agent Johnson indicated Moore should re-test in six months.

      212.  In or around September 1998, Moore hired a tutor to assist him with the math portion of the test, which he felt was giving him the most problems on the Exam. In or around January 1999, Moore was given a re-test in the Atlanta Field Office.

      213.  In or around February 1999, Special Agent Johnson informed Moore he again failed the test. Moore was told he had one more chance for a retest. On or about

August 9,1999, he again took the test in the Atlanta Field Office. On his third attempt, Moore passed the examination. He was so notified by letter dated August 13, 1999.

      214.  On or about August 23, 1999, Moore submitted additional paperwork as required. He appeared for a three panel interview consisting of Special Agents from the Atlanta Field Office on or about September 3, 1999. He passed this interview, and was told he had scored outstanding and above average.

      215.  On or about October 5, 1999, Moore was administered a polygraph examination in the Atlanta Field Office by Special Agent Clarence Jorif. Moore was accused by Special Agent Jorif of being a drug dealer and drug user. Special Agent Jorif also indicated that it was his decision as to whether Moore would get hired. It was also his decision, so stated Special Agent Jorif, to decide whether Moore would work with his wife as married couples in the Secret Service are rare. After being interrogated by Special Agent Jorif, Moore was placed back in the chair and administered another series of questions. He was so upset by this time that he could not respond effectively. Special Agent Jorif then told Moore that he failed the examination and that he was “f ***ed up.” The test took approximately four and one-half hours.

      216.  On or about October 8, 1999, Moore’s wife called him and told him that Special Agent Johnson said Moore had failed the polygraph examination. Moore then called Special Agent Johnson and told him that he was very disturbed about the way Special Agent Jorif conducted the test, and that Special Agent Jorif had no intention of passing Moore. Special Agent Johnson replied that the USSS does not give re-tests anymore, and that he cannot do anything for Moore, and then hung up.

      217.  On or about October 12, 1999, Moore mailed a certified letter to the USSS Special Investigation Security Division about his polygraph experience and the conduct of Special Agent Jorif. A copy of the letter was also sent to the Special Agent In Charge of the Atlanta Field office, Isiah Mapp. No responses were ever received.

      218.  On or about October 14, 1999, Special Agent Johnson told Moore’s wife to have Moore call him after Moore returned back from a trip so that he can set up a re-test for the polygraph examination. On or about October 19, 1999, Moore called Special Agent Johnson for a re-test, and was told someone from the Washington Field Office would call and set up a date, time and location for the re-test. Special Agent Darren Motts subsequently called Moore and told him to be at the Chattanooga, Tennessee Field Office on October 26, 1999 at 10:00 AM.

      219.  On or about October 26, 1999, Moore met with Special Agent Motts. He said there were issues that needed to be cleared in regards to drug usage and that there were no problems with the polygraph regarding national security. Special Agent Motts administered the test and after 20 minutes concluded that Moore had failed. He then tried to get Moore to admit to drug usage which Moore found absurd. Moore told him that he had never used or sold drugs and questioned why Special Agent Motts was trying to accuse him of drug usage. He replied that perhaps Moore had once tried marijuana or put a marijuana cigarette to his mouth. Moore said that he had never done anything of the sort in his life, and that a background check would prove it.

      220.      Moore revealed at this time that he had previously taken polygraph examinations with the Atlanta Police Department in or around 1986, and as an applicant for a Special Agent position with the DEA on or about March 11, 1999. He had passed both with no problems. As a result of the accusation, Moore then questioned Special Agent Motts about the USSS's motives for weeding him out of the process by trying to say he was a drug user thereby disqualifying his application. Special Agent Motts did not provide a response.

      221.  By letter dated November 19, 1999, from Donna Burgess, Chief, Special Agent and Office of Investigations Branch, USSS, Moore was notified that he was not among the qualified applicants but should be pleased he was among those who were considered for employment with the USSS.

      222.  By letter dated December 13, 1999, Moore responded to the letter of denial by sending his resume and letters of  accommodations via certified mail to Special Agent Burgess, EEO Officer Yvette Coles and USSS Director Brian Stafford. The letters arrived on or about December 20, 1999, and were signed for by USSS employees. No response from the USSS has ever been received.

      223.  Upon information and belief, the USSS polygraph examination was responsible for Moore being denied employment with the DEA. On or about September 14, 1998, Moore submitted his initial application to the DEA. He subsequently passed all phases of the applicant process: written test panel interview (December 3, 1998); psychological examination/drug test (December 4, 1998); medical examination (December 7, 1998 and December 15, 1998); physical task test (February 10, 1999); psychological interview (February 18, 1999); polygraph examination (March 11, 1999); background investigation (March 17, 1999 - completed by Special Agent Eldridge Earls); and a suitability review (May 1999). A little more than two weeks after Special Agent Jorif told Moore that he had failed his USSS polygraph examination, Moore was notified by letter dated October 27, 1999, that he was not chosen for a Special Agent position with the DEA. On or about November 12, 1999, Moore spoke with Special Agent Earls, who had conducted Moore’s DEA background information, and she expressed her astonishment at the DEA’s decision. Upon information and belief, the DEA’s decision not to hire Moore was primarily, if not entirely, based on the fact that he failed the USSS’ polygraph examination.

      224.  On April 19, 1999, Moore applied for the position of Special Agent with the Bureau of Alcohol, Tobacco and Firearms (“ATF”). A year later April 17, 2000, he received confirmation from ATF that he qualified for the position and that he would have to take the TEA Exam, which was administered on July 19, 2000. He received written notice of the results on or about July 24, 2000, that indicated he passed the test. Although he was told he would be scheduled for a panel interview at one of ATF's field division offices, he has not yet had an interview scheduled. At some time during the ATF’s application process, Moore will either tell ATF of the failed USSS polygraph or the USSS will notify ATF. Upon information and belief, the dissemination of this information will stigmatize Moore and preclude him from attaining employment as a federal law enforcement officer.

      225.  In or around February 2000, Moore applied for the position of Postal Inspector with the United States Postal Inspection Service (“USPIS”). After being informed that he met the necessary qualifications, he was scheduled to take a written examination on

June 20, 2000, which he passed. As of this date he has not heard anything further from the USPIS. At some time during the USPIS’s application process, Moore will either tell USPIS of the failed USSS polygraph or the USSS will notify USPIS. Upon information and belief, the dissemination of this information will stigmatize Moore and preclude him from attaining employment as a federal law enforcement officer.

      226.  On September 14, 2000, Moore requested an application to apply for a Special Agent position with the Internal Revenue Service (“IRS”). He intends to submit an application. Should he be accepted into the application process, at some time during the IRS process, Moore will either tell the IRS of the failed USSS polygraph or the USSS will notify the IRS. Upon information and belief, the dissemination of this information will stigmatize Moore and preclude him from attaining employment as a federal law enforcement officer.

 

FIRST CAUSE OF ACTION

(ADMINISTRATIVE PROCEDURE ACT - FBI)

      227.  John Does#1-4 and Croddy repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      228.  The FBI has indicated in correspondence that it “uses the polygraph as an aid to investigation and considers it highly reliable when used by a competent and ethical examiner. It is one part of the screening process and is designed to address issues that may not be resolved by more traditional investigative methods.”

      229.  The polygraph examiners who conducted the examinations of John Does#1-4 and Croddy were not competent or ethical. Their actions in polygraphing John Does#1-4 and Croddy fell outside acceptable parameters and standards of appropriate conduct as set forth by, but not limited to, the Department of Defense Polygraph Institute and the American Polygraph Association to such an extent as to unfairly taint the examinations. Additionally, many of the FBI polygraphers are biased against those who may have previously used drugs, even though such usage may be within the FBI’s guidelines, and have intentionally or unintentionally falsely branded individuals, including John Does#1-4 and Croddy, as drug users and/or liars.

      230.  The FBI is not permitted to violate the Constitutional rights, such as that exist but not limited to under the Fifth Amendment, of John Does#1-4 and Croddy, or violate its own regulations or policies. Identification of specific FBI regulations and policies that have been violated cannot be made at this time as the FBI has not publicly released copies of the relevant regulations or policies.  

      231.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      232.  John Doe#1 has applied and is still in the process of applying for employment with other federal, state or local law enforcement, and intelligence agencies. The FBI has disseminated and will continue to disseminate information from FBI files, particularly pertaining to polygraph results, concerning John Doe#1 to other law enforcement, federal, state or local, and intelligence agencies without notification to John Doe#1.

      233.  John Does#2-4 and Croddy have applied and are in the process of applying for employment with other federal agencies for law enforcement positions. The FBI has disseminated and will continue to disseminate information from FBI files, particularly pertaining to polygraph results, concerning John Does#2-4 and/or Croddy to other federal agencies without notification to John Does#2-4 and/or Croddy.

      234.  The FBI inappropriately and prematurely terminated the application processes of John Does#1-4 and Croddy based solely on the polygraph in violation of FBI regulations and policies and the Fifth Amendment to the U.S. Constitution. This constituted a final agency decision, and stigmatized John Does#1-4 and Croddy.

      235.  The FBI, its officers and employees, including but not limited to its polygraphers, committed and undertook actions that were arbitrary, capricious and/or an abuse of discretion pertaining to John Does#1-4 and Croddy, including, but not limited to, conducting an improper polygraph examination, unfairly relying on the results of the polygraph examination, branding them drug users, drug dealers and/or liars, and took actions that were unwarranted by the facts, unsupported by substantial evidence, in violation of internal regulations and federal statutes as set forth above, contrary to constitutional right, power, privilege, or immunity, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right thereby causing John Does#1-4 and Croddy to suffer legal wrongs under the Administrative Procedures Act.

 

SECOND CAUSE OF ACTION

(ADMINISTRATIVE PROCEDURE ACT - DEA)

      236.  John Doe#3 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      237.  The DEA has indicated in correspondence that the “polygraph examination is utilized as a tool to determine and direct attention to possible problem areas in an applicant’s background. However, it is never the sole determining factor in determining the applicant’s suitability for employment by DEA.”

      238.  The polygraph examiner who conducted the examination of John Doe#3 was not competent or ethical. His actions fell outside acceptable parameters and standards of appropriate conduct as set forth by, but not limited to, the Department of Defense Polygraph Institute and the American Polygraph Association to such an extent as to unfairly taint the examinations. Many DEA polygraphers have intentionally or unintentionally falsely branded individuals, including John Doe#3, as drug users and/or liars.

      239.  The DEA has made suitability decisions regarding the employment of applicants solely on the basis of polygraph results, including in the case of John Doe#3.

      240.  The DEA is not permitted to violate the Constitutional rights, such as that exist but not limited to under the Fifth Amendment, of John Doe#3, or violate its own regulations or policies. Identification of specific DEA regulations or policies that have been violated cannot be made at this time as the DEA has not publicly released copies of the relevant regulations or policies.

      241.  The DEA maintains a specific system of records within its Privacy Act system of records -  JUSTICE/DEA-018 - that pertains to DEA Applicant Investigations. Within this system are records containing investigative information developed during the application process for employment. The DEA permits information and records from within this system to be disseminated as a routine use to foreign, federal, state and local law enforcement and regulatory agencies, where appropriate, for referral to avoid duplication of the investigative process and where the appropriate agency is charged with the responsibility of investigating or prosecuting potential violations of law. It may even permit, under certain circumstances, release of information and records within this system to the news media and Members of Congress.

      242.  John Doe#3 has applied and is in the process of applying for employment with other federal agencies for a law enforcement position. The DEA has disseminated and will continue to disseminate information from DEA files, particularly pertaining to polygraph results, concerning John Doe#3 to other federal agencies without notification to John Doe#3.

      243.  The DEA inappropriately and prematurely terminated the application process of John Doe#3 in violation of DEA regulations and the Fifth Amendment to the U.S. Constitution. This constituted a final agency decision, and stigmatized John Doe#3.

      244.  The DEA, its officers and employees, including but not limited to its polygraphers, committed and undertook actions that were arbitrary, capricious and/or an abuse of discretion pertaining to John Doe#3, including, but not limited to, conducting an improper polygraph examination, unfairly relying on the results of the polygraph examination, branding him a drug users, drug dealers and/or liar, and took actions that were unwarranted by the facts, unsupported by substantial evidence, in violation of internal regulations and federal statutes as set forth above, contrary to constitutional right, power, privilege, or immunity, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right thereby causing John Doe#3 to suffer legal wrongs under the Administrative Procedures Act.

 

THIRD CAUSE OF ACTION

(ADMINISTRATIVE PROCEDURE ACT - SECRET SERVICE)

      245.  John Does#4-5 and Moore repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      246.  The polygraph examiners who conducted the examinations of John Doe#4-5 and  Moore were not competent or ethical. Their actions fell outside acceptable parameters and standards of appropriate conduct as set forth by, but not limited to, the Department of Defense Polygraph Institute and the American Polygraph Association to such an extent as to unfairly taint the examinations. Many of the USSS polygraphers have intentionally or unintentionally falsely branded individuals, including John Doe#4-5 and Moore as drug users and/or liars.

      247.  The USSS has made suitability decisions regarding the employment of applicants solely on the basis of polygraph results, including in the cases of John Doe#4-5 and Moore.

      248.  The USSS is not permitted to violate the Constitutional rights, such as that exist but not limited to under the Fifth Amendment, of John Doe#4-5 and Moore, or violate its own regulations or policies. Identification of specific USSS regulations and policies that have been violated cannot be made at this time as the USSS has not publicly released copies of the relevant regulations or policies.

      249.  The USSS maintains a specific system of records within its Privacy Act system of records -  Treasury/USSS.006 - that pertains to Non-Criminal Investigation Information. Within this system are records and information pertaining to individuals who are applicants for employment with the USSS and includes investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information. The USSS permits information and records from within this system to be disseminated as a routine use to (1) the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges;

(2) disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service;

(3) disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6)  disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by  general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) disclosures of information relating to civil proceedings to the news media;

(9) disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; and

(10) disclosure to a  student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.

      250.  John Does#4-5 and Moore have applied and are in the process of applying for employment with other federal law enforcement agencies. The USSS has disseminated and will continue to disseminate information from USSS files, particularly pertaining to polygraph results, concerning John Does#4-5 and/or Moore to other federal agencies without notification to John Does#4-5 and/or Moore.

      251.  The USSS inappropriately and prematurely terminated the application process of John Does#4-5 and Moore in violation of USSS regulations and the Fifth Amendment to the U.S. Constitution. This constituted a final agency decision, and stigmatized John Does#4-5 and Moore.

      252.  The Secret Service, its officers and employees, including but not limited committed and undertook actions that were arbitrary, capricious and/or an abuse of discretion pertaining to John Does#4-5 and Moore, including, but not limited to, conducting an improper polygraph examination, unfairly relying on the results of the polygraph examination, branding them drug users, drug dealers and/or liars, and took actions that were unwarranted by the facts, unsupported by substantial evidence, in violation of internal regulations and federal statutes as set forth above, contrary to constitutional right, power, privilege, or immunity, or in excess of statutory jurisdiction, authority, or limitations, or short of statutory right thereby causing John Does#4-5 and Moore to suffer legal wrongs under the Administrative Procedures Act.

 

FOURTH CAUSE OF ACTION

(FIFTH AMENDMENT - LIBERTY INTEREST - FBI)

      253. John Does#1-4 and Croddy repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      254.  The FBI is responsible for making suitability decisions regarding individuals who seek employment including as a Special Agent. The manner in which the FBI operates, specifically by utilizing and relying on polygraph results, fails to afford applicants with proper due process rights. There is no procedure to ensure that information obtained through a polygraph examination which is then utilized by the FBI to arrive at a decision to terminate an individual’s application is accurate. Neither does there exist any appellate procedure to challenge an unfavorable suitability or employment determination based on knowingly false and inaccurate information.

      255.  The FBI is not authorized to operate in a manner whereby an individual can be denied "Liberty" without "due process of law" in contravention of the Fifth Amendment. The actions of the FBI in, among other things, compiling and disseminating inaccurate, derogatory information about John Does#1-4 and Croddy, and basing its suitability decision on that inaccurate, derogatory information subjected them to unreasonable government interference which led to the revocation of their FBI job offers. The lack of "due process rights" accorded to individuals facing an adverse FBI employment decision has deprived and will continue to deprive John Doe#1 of opportunities of continued activity in his chosen profession of law enforcement and has deprived and will continue to deprive John Does#2-4 and Croddy of opportunities of continued activity in their chosen professions of federal law enforcement and/or intelligence work based on the FBI’s willingness to share derogatory information with other federal, state and local governmental agencies.

      256.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information and records from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      257.  The FBI’s actions has precluded and will continue to preclude John Doe#1 from participating in his chosen profession of law enforcement and has precluded and will continue to preclude John Does#2-4 and Croddy from participating in their chosen professions of federal law enforcement work and/or intelligence work. John Does#1-4 or Croddy have applied and are in the process of applying to work for law enforcement agencies. During the employment process and background investigation, the unfavorable polygraph results will have to be admitted. Furthermore, the FBI has disseminated and will continue to disseminate information it maintains on John Does#1-4 and Croddy that will adversely impact upon their reputation and chances for additional employment opportunities in the law enforcement profession. As a result, the FBI has stigmatized and will continue to effectively publicly stigmatize John Does#1-4 and Croddy’s reputations and impart(ed) a “status change” upon them that has implicated and will continue to implicate their liberty interests.

      258.  As a result, John Does#1-4 and Croddy have suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

FIFTH CAUSE OF ACTION

(FIFTH AMENDMENT - LIBERTY INTEREST - DEA)

      259. John Does#3 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      260.  The DEA is responsible for making suitability decisions regarding individuals who seek employment including as a Special Agent. The manner in which the DEA operates, specifically by utilizing and relying on polygraph results, fails to afford applicants with proper due process rights. There is no procedure to ensure that information obtained through a polygraph examination which is then utilized by the DEA to arrive at a decision to terminate an individual’s application is accurate. Neither does there exist any appellate procedure to challenge an unfavorable suitability or employment determination based on knowingly false and inaccurate information.

      261.  The DEA is not authorized to operate in a manner whereby an individual can be denied "Liberty" without "due process of law" in contravention of the Fifth Amendment. The actions of the DEA in, among other things, compiling and disseminating inaccurate, derogatory information about John Doe#3, and basing its suitability decision on that inaccurate, derogatory information subjected him to unreasonable government interference which led to the revocation of his DEA job offer. The lack of "due process rights" accorded to individuals facing an adverse DEA employment decision has deprived and will continue to deprive John Doe#3 of opportunities of continued activity in his chosen profession of federal law enforcement and/or intelligence work based on the DEA’s willingness to share derogatory information with other federal, state and local governmental agencies.

      262.  The DEA maintains a specific system of records within its Privacy Act system of records -  JUSTICE/DEA-018 - that pertains to DEA Applicant Investigations. Within this system are records containing investigative information developed during the application process for employment. The DEA permits information and records from within this system to be disseminated as a routine use to foreign, federal, state and local law enforcement and regulatory agencies, where appropriate, for referral to avoid duplication of the investigative process and where the appropriate agency is charged with the responsibility of investigating or prosecuting potential violations of law. It may even permit, under certain circumstances, release of information and records within this system to the news media and Members of Congress.

      263.  The DEA’s actions has precluded and will continue to preclude John Doe#3 from participating in his chosen professions of federal law enforcement and/or intelligence work. John Doe#3 has applied and is in the process of applying to work for a federal law enforcement or intelligence agency. During the application process and background investigation, the unfavorable polygraph results will have to be admitted. Furthermore, the DEA has disseminated and will continue to disseminate information it maintains on John Doe#3 that will adversely impact upon his reputation and chances for additional employment opportunities. As a result, the DEA has stigmatized and will continue to effectively publicly stigmatize John Doe#3’s reputation and impart a “status change” upon him that has implicated and will continue to implicate his liberty interests.

      264.  As a result, John Doe#3 has suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

SIXTH CAUSE OF ACTION

(FIFTH AMENDMENT - LIBERTY INTEREST - SECRET SERVICE)

      265. John Does#4-6 and Moore repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      266.  The USSS is responsible for making suitability decisions regarding individuals who seek employment including as a Special Agent. The manner in which the USSS operates, specifically by utilizing and relying on polygraph results, fails to afford applicants with proper due process rights. There is no procedure to ensure that information obtained through a polygraph examination which is then utilized by the USSS to arrive at a decision to terminate an individual’s application is accurate. Neither does there exist any appellate procedure to challenge an unfavorable suitability or employment determination based on knowingly false and inaccurate information.

      267.  The USSS is not authorized to operate in a manner whereby an individual can be denied "Liberty" without "due process of law" in contravention of the Fifth Amendment. The actions of the USSS in, among other things, compiling and disseminating inaccurate, derogatory information about John Does#4-5 and Moore, and basing its suitability decision on that inaccurate, derogatory information subjected them to unreasonable government interference which led to the revocation of their USSS job offers. The lack of "due process rights" accorded to individuals facing an adverse USSS employment decision has deprived and will continue to deprive John Does#4-6 and Moore of opportunities of continued activity in their chosen profession of federal law enforcement and/or intelligence work based on the USSS’s willingness to share derogatory information with other federal governmental agencies.

      268.  The USSS maintains a specific system of records within its Privacy Act system of records -  Treasury/USSS.006 - that pertains to Non-Criminal Investigation Information. Within this system are records and information pertaining to individuals who are applicants for employment with the USSS and includes investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information. The USSS permits information and records from within this system to be disseminated as a routine use to (1) the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges;

(2) disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service;

(3) disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6)  disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by  general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) disclosures of information relating to civil proceedings to the news media;

(9) disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; and

(10) disclosure to a  student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.

      269.  The USSS’s actions has precluded and will continue to preclude John Does#4-6 and Moore from participating in their chosen professions of federal law enforcement and/or intelligence work. John Does#4-6 and Moore have applied and are in the process of applying to work for a federal law enforcement or intelligence agency. During the employment process and background investigation, the unfavorable polygraph results will have to be admitted. Furthermore, the USSS has disseminated and will continue to disseminate information it maintains on John Does#4-6 and Moore that will adversely impact upon their reputation and chances for additional employment opportunities. As a result, the USSS has stigmatized and will continue to effectively publicly stigmatize John Does#4-6 and Moore’s reputation and impart(ed) a “status change” upon them that has, implicated and will continue to implicate their liberty interests.

      270.  As a result, John Does#4-6 and Moore has suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

SEVENTH CAUSE OF ACTION (ERIC CRODDY)

(FIFTH AMENDMENT - NAME CLEARING HEARING - FBI)

      271.  Eric Croddy repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      272.      Croddy was an applicant for a position as an Intelligence Specialist for the FBI. He was extended a conditional offer of employment pending a favorable background investigation. Based on the results of a polygraph examination he was falsely accused of lying about his past drug usage. As a result his job offer was rescinded. No efforts were made by the FBI to corroborate or verify the polygraph findings.

      273.  The FBI is not permitted to violate Croddy’s Constitutional rights, as set forth by the Constitution of the United States.

      274. The FBI, through the actions of its officials and employees disseminated false and defamatory impressions about Croddy throughout certain offices of the FBI that effectively stigmatized him.

      275.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      276. The FBI, through the actions of its officials and employees, is destroying Croddy’s good name. Additionally, Croddy has applied and is in the process applying for employment with other federal law enforcement agencies. The FBI’s actions have had and will continue to have the effect of foreclosing Croddy’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from FBI files, particularly pertaining to polygraph results, concerning Croddy to other federal agencies without notification to Croddy.

      277.  The FBI improperly, unlawfully and unconstitutionally revoked Croddy’s job offer as an Intelligence Specialist based on the false results of a polygraph examination.

      278.  No opportunity was ever provided Croddy to either refute those allegations made against him or clear his name.

      279. The FBI is not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, Croddy is entitled to a name-clearing hearing.

      280. Croddy has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

EIGHTH CAUSE OF ACTION (JOHN DOE#1)

(FIFTH AMENDMENT - NAME CLEARING HEARING - FBI)

      281. John Doe#1 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      282.  John Doe#1 was an applicant for a position as a Special Agent of the FBI. He was extended a conditional offer of employment pending a favorable background investigation. Based on the results of a polygraph examination he was falsely accused of lying about his past drug usage. As a result his job offer was rescinded. No efforts were made by the FBI to corroborate or verify the polygraph findings.

      283.  The FBI is not permitted to violate John Doe#1’s Constitutional rights, as set forth by the Constitution of the United States.

      284. The FBI, through the actions of its officials and employees disseminated false and defamatory impressions about John Doe#1 throughout certain offices of the FBI that effectively stigmatized him.

      285.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information  from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      286. The FBI, through the actions of its officials, is destroying John Doe#1’s good name. Additionally, John Doe#1 has applied and will be applying for employment with other law enforcement, federal, state or local, and intelligence agencies. The FBI’s actions have had and will continue to have the effect of foreclosing John Doe#1’s freedom from practicing his chosen profession in law enforcement by disseminating information from FBI files, particularly pertaining to polygraph results, concerning John Doe#1 to other law enforcement, federal, state or local, and intelligence agencies without notification to John Doe#1.

      287.  The FBI improperly, unlawfully and unconstitutionally revoked John Doe#1’s job offer as a Special Agent based on the false results of a polygraph examination.

      288. No opportunity was ever provided John Doe#1 to either refute those allegations made against him or clear his name.

      289. The FBI is not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, John Doe#1 is entitled to a name-clearing hearing.

      290. John Doe#1 has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

NINTH CAUSE OF ACTION (JOHN DOE#2)

(FIFTH AMENDMENT - NAME CLEARING HEARING - FBI)

      291.  John Doe#2 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      292.  John Doe#2 was an applicant for a position as a Special Agent of the FBI. He was extended a conditional offer of employment pending a favorable background investigation. Based on the results of a polygraph examination he was falsely accused of lying about his past drug usage. As a result his job offer was rescinded. No efforts were made by the FBI to corroborate or verify the polygraph findings.

      293.  The FBI is not permitted to violate John Doe#2’s Constitutional rights, as set forth by the Constitution of the United States.

      294. The FBI, through the actions of its officials and employees disseminated false and defamatory impressions about John Doe#2 throughout certain offices of the FBI that effectively stigmatized him.

      295.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      296. The FBI, through the actions of its officials and employees, is destroying John Doe#2’s good name. Additionally, John Doe#2 has applied and is in the process of applying for employment with other federal law enforcement and intelligence agencies. The FBI’s actions have had and will continue to have the effect of foreclosing John Doe#2’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from FBI files, particularly pertaining to polygraph results, concerning John Doe#2 to other federal agencies without notification to John Doe#2.

      297.  The FBI improperly, unlawfully and unconstitutionally rescinded John Doe#2’s job offer as a Special Agent based on the results of a false polygraph examination.

      298. No opportunity was ever provided John Doe#2 to either refute those allegations made against him or clear his name.

      299. The FBI is not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, John Doe#2 is entitled to a name-clearing hearing.

      300. John Doe#2 has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

TENTH CAUSE OF ACTION (JOHN DOE#3)

(FIFTH AMENDMENT - NAME CLEARING HEARING - FBI - DEA)

      301. John Doe#3 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      302.  John Doe#3 was an applicant for a position as a Special Agent of the DEA and as an Investigative Specialist for the Special Surveillance Group SSG for the FBI. He was extended a conditional offer of employment for both positions pending favorable background investigations. Based on the results of polygraph examinations he was falsely accused of lying by the DEA and FBI about his past drug usage. As a result his job offers were rescinded. No efforts were made by either the DEA or FBI to corroborate or verify the polygraph findings.

      303.      Neither the DEA or FBI is permitted to violate John Doe#3’s Constitutional rights, as set forth by the Constitution of the United States.

      304. The DEA and FBI, through the actions of their officials and employees disseminated false and defamatory impressions about John Doe#3 throughout certain offices of the DEA and FBI that effectively stigmatized him.

      305.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      306.  The DEA maintains a specific system of records within its Privacy Act system of records -  JUSTICE/DEA-018 - that pertains to DEA Applicant Investigations. Within this system are records containing investigative information developed during the application process for employment. The DEA permits information and records from within this system to be disseminated as a routine use to foreign, federal, state and local law   enforcement and regulatory agencies, where appropriate, for referral to avoid duplication of the investigative process and where the appropriate agency is charged with the responsibility of investigating or prosecuting potential violations of law. It may even permit, under certain circumstances, release of information and records within this system to the news media and Members of Congress.

      307. The DEA and FBI, through the actions of their officials and employees, are destroying John Doe#3’s good name. Additionally, John Doe#3 has applied and is in the process of applying for employment with other federal law enforcement and intelligence agencies. Both the DEA and FBI’s actions have had and will continue to have the effect of foreclosing John Doe#3’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from DEA and/or FBI files, particularly pertaining to polygraph results, concerning John Doe#3 to other federal agencies without notification to John Doe#3.

      308.  The DEA and FBI improperly, unlawfully and unconstitutionally rescinded John Doe#3’s job offers based on the results of false polygraph examinations.

      309. No opportunity was ever provided John Doe#3 to either refute those allegations made against him or clear his name.

      310. The DEA and FBI are not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, John Doe#3 is entitled to a name-clearing hearing for both agencies.

      311. John Doe#3 has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

ELEVENTH CAUSE OF ACTION (JOHN DOE#4)

(FIFTH AMENDMENT - NAME CLEARING HEARING -

FBI - SECRET SERVICE)

      312. John Doe#4 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      313.  John Doe#4 was an applicant for positions as a Special Agent of the FBI and the USSS. He was extended conditional offers of employment pending favorable background investigations. Based on the results of polygraph examinations he was falsely accused of lying about his past drug usage. As a result his job offers were rescinded. No efforts were made by either the FBI or the USSS to corroborate or verify the polygraph findings.

      314.      Neither the FBI or the USSS are permitted to violate John Doe#4’s Constitutional rights, as set forth by the Constitution of the United States.

      315. The FBI and the USSS, through the actions of their officials and employees, disseminated false and defamatory impressions about John Doe#4 throughout certain offices of the FBI and the USSS that effectively stigmatized him.

      316.  The FBI maintains a specific system of records within its Privacy Act system of records -  JUSTICE/FBI-002 - that is part of the FBI Central Records System. Within this system are records and information pertaining to applicants for employment with the FBI, which includes all records and information relevant to an applicant’s investigation, personnel inquiry, or other personnel matters. The FBI may disclose personal information from this system as a routine use to any federal agency where the purpose in making the disclosure is compatible with the law enforcement purpose for which it was collected, e.g., to assist the recipient agency in conducting a lawful criminal or intelligence investigation, to assist the recipient agency in making a determination concerning an individual's suitability for employment and/or trustworthiness for employment and/or trustworthiness for access clearance purposes, or to assist the recipient agency in the performance of any authorized function where access to records in this system is declared by the recipient agency to be relevant to that function.

      317.  The USSS maintains a specific system of records within its Privacy Act system of records -  Treasury/USSS.006 - that pertains to Non-Criminal Investigation Information. Within this system are records and information pertaining to individuals who are applicants for employment with the USSS and includes investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information. The USSS permits information and records from within this system to be disseminated as a routine use to (1) the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges;

(2) disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service;

(3) disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6)  disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by  general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) disclosures of information relating to civil proceedings to the news media;

(9) disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; and

(10) disclosure to a  student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.

      318. The FBI and the USSS, through the actions of their officials and employees, are destroying John Doe#4’s good name. Additionally, John Doe#4 has applied and is in the process of applying for employment with other federal law enforcement and intelligence agencies. The actions of the FBI and the USSS have had and will continue to have the effect of foreclosing John Doe#4’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from FBI and USSS files, particularly pertaining to polygraph results, concerning John Doe#4 to other federal agencies without notification to John Doe#4.

      319.  The FBI and the USSS improperly, unlawfully and unconstitutionally revoked John Doe#4’s job offers based on the results of false polygraph examinations.

      320. No opportunity was ever provided John Doe#4 to either refute those allegations made against him or clear his name.

      321. Neither the FBI or the USSS are authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, John Doe#4 is entitled to a name-clearing hearing by both agencies.

      322. John Doe#4 has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

TWELFTH CAUSE OF ACTION (JOHN DOE#5)

(FIFTH AMENDMENT - NAME CLEARING HEARING - SECRET SERVICE)

      323. John Doe#5 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      324.  John Doe#5 was an applicant for a position as a Special Agent of the USSS. He was extended a conditional offer of employment pending a favorable background investigation. Based on the results of a polygraph examination he was falsely accused of having a past drug history, as well as lying about the commission of serious crimes. As a result his job offer was rescinded. No efforts were made by the USSS to corroborate or verify the polygraph findings.

      325.  The USSS is not permitted to violate John Doe#5’s Constitutional rights, as set forth by the Constitution of the United States.

      326. The USSS, through the actions of its officials and employees, disseminated false and defamatory impressions about John Doe#5 throughout certain offices of the USSS that effectively stigmatized him.

      327.  The USSS maintains a specific system of records within its Privacy Act system of records -  Treasury/USSS.006 - that pertains to Non-Criminal Investigation Information. Within this system are records and information pertaining to individuals who are applicants for employment with the USSS and includes investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information. The USSS permits information and records from within this system to be disseminated as a routine use to (1) the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges;

(2) disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service;

(3) disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6)  disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by  general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) disclosures of information relating to civil proceedings to the news media;

(9) disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; and

(10) disclosure to a  student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.

      328. The USSS, through the actions of its officials and employees, are destroying John Doe#5’s good name. Additionally, John Doe#5 has applied and is in the process of applying for employment with other federal law enforcement and intelligence agencies. The USSS’s actions have had and will continue to have the effect of foreclosing John Doe#5’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from USSS files, particularly pertaining to polygraph results, concerning John Doe#5 to other federal agencies without notification to John Doe#5.

      329.  The USSS improperly, unlawfully and unconstitutionally revoked John Doe#5’s job offer as a Special Agent based on the results of a false polygraph examination.

      330. No opportunity was ever provided John Doe#5 to either refute those allegations made against him or clear his name.

      331. The USSS is not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, John Doe#5 is entitled to a name-clearing hearing.

      332.  John Doe#5 has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

THIRTEENTH CAUSE OF ACTION (DARRYN MITCHELL MOORE)

(FIFTH AMENDMENT - NAME CLEARING HEARING - SECRET SERVICE)

      333. Darryn Mitchell Moore repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      334.      Moore was an applicant for a position as a Special Agent of the USSS. He was extended a conditional offer of employment pending a favorable background investigation. Based on the results of a polygraph examination he was falsely accused of having a past drug history. As a result his job offer was rescinded. No efforts were made by the USSS to corroborate or verify the polygraph findings.

      335.  The USSS is not permitted to violate Moore’s Constitutional rights, as set forth by the Constitution of the United States.

      336. The USSS, through the actions of its officials and employees, disseminated false and defamatory impressions about Moore throughout certain offices of the USSS that effectively stigmatized him.

      337.  The USSS maintains a specific system of records within its Privacy Act system of records -  Treasury/USSS.006 - that pertains to Non-Criminal Investigation Information. Within this system are records and information pertaining to individuals who are applicants for employment with the USSS and includes investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information. The USSS permits information and records from within this system to be disseminated as a routine use to (1) the Department of Justice and other Federal agencies for administrative, civil, or other legal proceedings to be used by personnel officials, attorneys, administrative law officers, and judges;

(2) disclosure to personnel of other Federal, state and local governmental agencies, foreign and domestic, for the purpose of developing or confirming information on individuals involved in non-criminal investigations conducted by the Secret Service;

(3) disclosure to personnel of private institutions and to private individuals for the purpose of confirming and/or determining suitability, eligibility, or qualifications for federal civilian employment or access to classified information; and for the purposes of furthering the efforts of the Secret Service to investigate the activities of individuals related to or involved in non-criminal civil and administrative investigations; (4) disclosure to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for the purpose of determining suitability, eligibility, or qualifications for employment with or access to classified information in such other agency or instrumentality; (5) records maintained indicating a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, may be referred to the appropriate agency, whether Federal, state, local or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation or order issued pursuant thereto; (6)  disclosures in the course of presenting evidence to a court, magistrate or administrative tribunal and disclosures to opposing counsel in the course of discovery proceedings for the purpose of enforcing, or prosecuting, a violation or potential violation of law, whether civil, criminal or regulatory in nature and whether arising by  general statute or particular program statute, or by regulation, rule or order issued pursuant thereto; (7) disclosures to Federal, state or local agencies maintaining civil, criminal or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to an agency decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant or other benefit, to the extent that the information is relevant and necessary to the requesting agencies' decision on the matter; (8) disclosures of information relating to civil proceedings to the news media;

(9) disclosure to Federal, state, or local government agencies for the purpose of developing a relevant ongoing civil, criminal, or background investigation; and

(10) disclosure to a  student participating in a Secret Service student volunteer program, where such disclosure is necessary to further the efforts of the Secret Service.

      338. The USSS, through the actions of its officials and employees, are destroying Moore’s good name. Additionally, Moore has applied and is in the process of applying for employment with other federal law enforcement and intelligence agencies. The USSS’s actions have had and will continue to have the effect of foreclosing Moore’s freedom from practicing his chosen profession in federal law enforcement by disseminating information from USSS files, particularly pertaining to polygraph results, concerning Moore to other federal agencies without notification to Moore.

      339.  The USSS improperly, unlawfully and unconstitutionally revoked Moore’s job offer as a Special Agent based on the results of a false polygraph examination.

      340. No opportunity was ever provided Moore to either refute those allegations made against him or clear his name.

      341. The USSS is not authorized to take actions whereby an individual can be denied liberty without due process of law required by the Fifth Amendment. Therefore, Moore is entitled to a name-clearing hearing.

      342. Moore has suffered actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

FOURTEENTH CAUSE OF ACTION (JOHN DOE#1)

(CONSTITUTIONAL RIGHT TO PRIVACY - FBI)

      343. John Doe#1 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      344.  John Doe#1 is protected from the government’s intrusion into matters that are essential to his self-actualization and unrelated to an objectively identifiable legitimate government interest.

      345.  The FBI, through the actions of its officials and employees, implicated the privacy concerns of John Doe#1 through questions during his pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews concerning his medical, psychological, sexual, criminal and drug histories.

      346.  The FBI, through the actions of is officials and employees, sought to confirm this private information through the use of polygraph testing, a highly suspect and unreliable means of verification.

      347. John Doe#1 involuntarily submitted to the FBI’s polygraph test as refusal to take the examination results in immediate expulsion from the application process and an automatic failure to be hired.

      348. John Doe#1 held a significant personal interest in the outcome of the polygraph tests, insofar as he had expended a great deal of time and effort including, but not limited to, years of training and anticipation, to qualify for employment that depended significantly upon the test results. In addition, failing such a test has impacted John Doe#1’s future employment in the law enforcement career field, not to mention his psychological well-being and reputation.

      349.  During pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews, the FBI’s polygraph examiners sought to verify the veracity of statements provided by John Doe#1 either in writing or verbally through questions that were insulting, intrusive, argumentative, embarrassing and wholly unrelated to a legitimate interest. The manner in which these shocking questions were asked provoked the very physiological responses that polygraph examiners interpret as evidencing “deception”. This contributed to, but is not the sole reason for, the unreliability of the polygraph testing procedure.

      350.  The FBI may not ask applicants, such as John Doe#1, questions it cannot reasonably believe would elicit information to furnish it with a rational basis for discovering whether an applicant possesses the actual qualifications reasonably required for the particular job sought.

      351.  The FBI’s polygraph examiners interpret test results in a capricious and arbitrary manner, mislead applicants as to the importance of results, and contradict other agency officials in a manner that alarms and confuses applicants, such as John Doe#1. These actions serve to further compromise the accuracy of an already unreliable medium.

      352. John Doe#1’s privacy concerns were implicated in an indiscriminate and standardless process. Polygraph testing has no rationale or direct substantial relation to any legitimate government interest insofar as the information “obtained” is inaccurate, incredible, and completely subject to the personal biases and peccadilloes of the polygraph examiner. Additionally, the FBI has other reasonable, less intrusive, alternatives and means for acquiring the information about applicants, such as John Doe#1.

      353.  As a result of the polygraph examinations administered by the FBI, John Doe#1 has been falsely branded as a drug user and/or liar. Based solely on the polygraph results, John Doe#1’s conditional offer of employment was rescinded. Additionally, the stigma that has now attached as a result of the intrusiveness of the polygraph examination and the results have caused John Doe#1 to lose out on other employment opportunities within the law enforcement arena, and will continue to harm, if not preclude entirely, John Doe#1 from seeking future employment in his chosen field of profession of law enforcement.

      354. The FBI is not authorized to take actions violating the Constitution. Pre-employment polygraph examinations violate the constitutional privacy rights of applicants such as John Doe#1.

      355.  As a result, John Doe#1 has suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

FIFTEENTH CAUSE OF ACTION (JOHN DOES#2-4, ERIC CRODDY)

(CONSTITUTIONAL RIGHT TO PRIVACY - FBI)

      356. John Does#2-4 and Croddy repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      357.  John Does#2-4 and Croddy are protected from the government’s intrusion into matters that are essential to their self-actualization and unrelated to an objectively identifiable legitimate government interest.

      358.  The FBI, through the actions of its officials and employees, implicated the privacy concerns of John Does#2-4 and Croddy through questions during their pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews concerning their medical, psychological, sexual, criminal and drug histories.

      359.  The FBI, through the actions of is officials and employees, sought to confirm this private information through the use of polygraph testing, a highly suspect and unreliable means of verification.

      360. John Does#2-4 and Croddy involuntarily submitted to the FBI’s polygraph test as refusal to take the examination results in immediate expulsion from the application process and an automatic failure to be hired.

      361. John Does#2-4 and Croddy held a significant personal interest in the outcome of the polygraph tests, insofar as they had expended a great deal of time and effort including, but not limited to, years of training and anticipation, to qualify for employment that depended significantly upon the test results. In addition, failing such a test has impacted John Does#2-4 and Croddy’s future employment in the federal law enforcement career field, not to mention their psychological well-being and reputation.

      362.  During pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews, the FBI’s polygraph examiners sought to verify the veracity of statements provided by John Does#2-4 and Croddy either in writing or verbally through questions that were insulting, intrusive, argumentative, embarrassing and wholly unrelated to a legitimate interest. The manner in which these shocking questions were asked provoked the very physiological responses that polygraph examiners interpret as evidencing “deception”. This contributed to, but is not the sole reason for, the unreliability of the polygraph testing procedure.

      363.  The FBI may not ask applicants, such as John Does#2-4 and Croddy, questions it cannot reasonably have believed would elicit information to furnish it with a rational basis for discovering whether applicants possess the actual qualifications reasonably required for the particular job sought.

      364.  The FBI’s polygraph examiners interpret test results in a capricious and arbitrary manner, mislead applicants as to the importance of results, and contradict other agency officials in a manner that alarms and confuses applicants, such as John Does#2-4 and Croddy. These actions serve to further compromise the accuracy of an already unreliable medium.

      365. John Does#2-4 and Croddy’s privacy concerns were implicated in an indiscriminate and standardless process. Polygraph testing has no rationale or direct substantial relation to any legitimate government interest insofar as the information “obtained” is inaccurate, incredible, and completely subject to the personal biases and peccadilloes of the polygraph examiner. Additionally, the FBI has other reasonable, less intrusive, alternatives and means for acquiring the information about applicants, such as John Does#2-4 and Croddy.

      366.  As a result of the polygraph examinations administered by the FBI, John Does#2-4 and Croddy have been falsely branded as drug users and/or liars. Based solely on the polygraph results, John Does#2-4 and Croddy’s conditional offer of employment was rescinded. Additionally, the stigma that has now attached as a result of the intrusiveness of the polygraph examination and the results have caused John Does#2-4 and Croddy to lose out on other employment opportunities within the federal law enforcement arena, and will continue to harm, if not preclude entirely, John Does#2-4 and Croddy from seeking future employment in their chosen fields of profession of federal law enforcement.

      367. The FBI is not authorized to take actions violating the Constitution. Pre-employment polygraph examinations violate the constitutional privacy rights of applicants such as John Does#2-4 and Croddy.

      368.  As a result, John Does#2-4 and Croddy have suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

SIXTEENTH CAUSE OF ACTION (JOHN DOE#3)

(CONSTITUTIONAL RIGHT TO PRIVACY - DEA)

      369. John Doe#3 repeats and realleges the allegations contained in paragraphs 1 through 226 above, inclusive.

      370.  John Doe#3 is protected from the government’s intrusion into matters that are essential to his self-actualization and unrelated to an objectively identifiable legitimate government interest.

      371.  The DEA, through the actions of its officials and employees, implicated the privacy concerns of John Doe#3 through questions during his pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews concerning his medical, psychological, sexual, criminal and drug histories.

      372.  The DEA, through the actions of is officials and employees, sought to confirm this private information through the use of polygraph testing, a highly suspect and unreliable means of verification.

      373. John Doe#3 involuntarily submitted to the DEA’s polygraph test as refusal to take the examination results in immediate expulsion from the application process and an automatic failure to be hired.

      374. John Doe#3 held a significant personal interest in the outcome of the polygraph tests, insofar as he had expended a great deal of time and effort including, but not limited to, years of training and anticipation, to qualify for employment that depended significantly upon the test results. In addition, failing such a test has impacted John Doe#3’s future employment in the law enforcement career field, not to mention his psychological well-being and reputation.

      375.  During pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews, the DEA’s polygraph examiners sought to verify the veracity of statements provided by John Doe#3 either in writing or verbally through questions that were insulting, intrusive, argumentative, embarrassing and wholly unrelated to a legitimate interest. The manner in which these shocking questions were asked provoked the very physiological responses that polygraph examiners interpret as evidencing “deception”. This contributed to, but is not the sole reason for, the unreliability of the polygraph testing procedure.

      376.  The DEA may not ask applicants, such as John Doe#3, questions it cannot reasonably have believed would elicit information to furnish it with a rational basis for discovering whether an applicant possesses the actual qualifications reasonably required for the particular job sought.

      377.  The DEA’s polygraph examiners interpret test results in a capricious and arbitrary manner, mislead applicants as to the importance of results, and contradict other agency officials in a manner that alarms and confuses applicants, such as John Doe#3. These actions serve to further compromise the accuracy of an already unreliable medium.

      378. John Doe#3’s privacy concerns were implicated in an indiscriminate and standardless process. Polygraph testing has no rationale or direct substantial relation to any legitimate government interest insofar as the information “obtained” is inaccurate, incredible, and completely subject to the personal biases and peccadilloes of the polygraph examiner. Additionally, the DEA has other reasonable, less intrusive, alternatives and means for acquiring the information about applicants, such as John Doe#3.

      379.  As a result of the polygraph examinations administered by the DEA, John Doe#3 has been falsely branded as a drug user and/or liar. Based solely on the polygraph results, John Doe#3’s conditional offer of employment was rescinded. Additionally, the stigma that has now attached as a result of the intrusiveness of the polygraph examination and the results have caused John Doe#3 to lose out on other employment opportunities within the law enforcement arena, and will continue to harm, if not preclude entirely, John Doe#3 from seeking future employment in his chosen field of profession of federal law enforcement.

      380. The DEA is not authorized to take actions violating the Constitution. Pre-employment polygraph examinations violate the constitutional privacy rights of applicants such as John Doe#3.

      381.  As a result, John Doe#3 has suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

 

SEVENTEENTH CAUSE OF ACTION (JOHN DOES#4-5, DARRYN MOORE)

(CONSTITUTIONAL RIGHT TO PRIVACY - USSS)

      382. John Does#4-5 and Moore repeat and reallege the allegations contained in paragraphs 1 through 226 above, inclusive.

      383.  John Does#4-5 and Moore are protected from the government’s intrusion into matters that are essential to their self-actualization and unrelated to an objectively identifiable legitimate government interest.

      384.  The USSS, through the actions of its officials and employees, implicated the privacy concerns of John Does#4-5 and Moore through questions during their pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews concerning their medical, psychological, sexual, criminal and drug histories.

      385.  The USSS, through the actions of is officials and employees, sought to confirm this private information through the use of polygraph testing, a highly suspect and unreliable means of verification.

      386. John Does#4-5 and Moore involuntarily submitted to the USSS’s polygraph test as refusal to take the examination results in immediate expulsion from the application process and an automatic failure to be hired.

      387. John Does#4-5 and Moore held a significant personal interest in the outcome of the polygraph tests, insofar as they had expended a great deal of time and effort including, but not limited to, years of training and anticipation, to qualify for employment that depended significantly upon the test results. In addition, failing such a test has impacted John Does#4-5 and Moore’s future employment in the federal law enforcement career field, not to mention their psychological well-being and reputation.

      388.  During pre-test interviews, discussion in-between testing, the polygraph testing process itself and post-test interviews, the USSS’s polygraph examiners sought to verify the veracity of statements provided by John Does#4-5 and Moore either in writing or verbally through questions that were insulting, intrusive, argumentative, embarrassing and wholly unrelated to a legitimate interest. The manner in which these shocking questions were asked provoked the very physiological responses that polygraph examiners interpret as evidencing “deception”. This contributed to, but is not the sole reason for, the unreliability of the polygraph testing procedure.

      389.  The USSS may not ask applicants, such as John Does#4-5 and Moore, questions it cannot reasonably have believed would elicit information to furnish it with a rational basis for discovering whether an applicant possesses the actual qualifications reasonably required for the particular job sought.

      390.  The USSS’s polygraph examiners interpret test results in a capricious and arbitrary manner, mislead applicants as to the importance of results, and contradict other agency officials in a manner that alarms and confuses applicants, such as John Does#4-5 and Moore. These actions serve to further compromise the accuracy of an already unreliable medium.

      391. John Does#4-5 and Moore’s privacy concerns were implicated in an indiscriminate and standardless process. Polygraph testing has no rationale or direct substantial relation to any legitimate government interest insofar as the information “obtained” is inaccurate, incredible, and completely subject to the personal biases and peccadilloes of the polygraph examiner. Additionally, the USSS has other reasonable, less intrusive, alternatives and means for acquiring the information about applicants, such as John Does#4-5 and Moore.

      392.  As a result of the polygraph examinations administered by the USSS, John Does#4-5 and Moore have been falsely branded as drug users and/or liars. Based solely on the polygraph results, John Does#4-5 and Moore’s conditional offer of employment was rescinded. Additionally, the stigma that has now attached as a result of the intrusiveness of the polygraph examination and the results have caused John Does#4-5 and Moore to lose out on other employment opportunities within the federal law enforcement arena, and will continue to harm, if not preclude entirely, John Does#4-5 and Moore from seeking future employment in their chosen fields of profession of federal law enforcement.

      393. The USSS is not authorized to take actions violating the Constitution. Pre-employment polygraph examinations violate the constitutional privacy rights of applicants such as John Does#4-5 and Moore.

      394.  As a result, John Does#4-5 and Moore has suffered and will continue to suffer actual adverse and harmful effects, including, but not limited to, mental distress, emotional trauma, embarrassment, humiliation, and lost or jeopardized present or future financial opportunities.

      WHEREFORE, plaintiffs Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore request that the Court award them the following relief:

      (1)      Declare that the FBI, DEA and/or USSS violated the Administrative Procedure Act;

      (2)      Declare that the FBI, DEA and/or USSS violated their own internal regulations;

      (3)      Declare that the FBI, DEA and/or USSS violated the Fifth Amendment;

      (4)      Declare that the FBI, DEA and/or USSS violated Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore’s constitutional right to privacy;

      (5)      Declare that the polygraph machine is unreliable for use in preemployment screening;

      (6)      Require the FBI, DEA and/or USSS to reinstate Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore’s applications for employment with the respective agencies;

      (7)      Invoke its equitable powers to expunge all records or information maintained by the FBI, DEA and/or USSS that is inaccurate, derogatory or infringes upon Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore’s express or implied constitutional or statutory rights;

      (8)      Order the FBI, DEA and/or USSS to hold a Roth and/or Codd hearing to provide Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore an opportunity to clear their names;

      (9) Award Eric Croddy, John Doe#1, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore the costs of the action and reasonable attorney fees under the Equal Access to Justice Act or any other applicable law;

      (10) grant such other relief as the Court may deem just and proper.

 

Date:      October 4, 2000

                             

                                                      Respectfully submitted,

 

 

 

                                                                        __________________________

                                                                        Mark S. Zaid, Esq.   

                                                                        Lobel, Novins & Lamont

                                                                        1275 K Street, N.W.

                                                                        Suite 770

                                                                        Washington, D.C.  20005

                                                                        (202) 371-6626

 

                                                                        Counsel for Plaintiffs

 

                        CERTIFICATE OF SERVICE

      I HEREBY CERTIFY that on this 4th day of October 2000, a copy of the foregoing First Amended Complaint was mailed first class, postage pre-paid, to:

 

                                                Marina Utgoff Braswell

                                                Assistant U.S. Attorney

                                                U.S. Department of Justice

                                                Judiciary Center, Room 10-413

                                                555 Fourth Street, N.W.

                                                Washington, D.C.  20001

 

 

 

 

                                                                        _____________________________

                                                                        Mark S. Zaid, Esq.