UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOHN DOE #6 et al., *
*
Plaintiffs *
*
v. * Civil Action No. 00-2440 (EGS)
*
FEDERAL BUREAU OF *
INVESTIGATION et al., *
*
Defendants *
* * * * * * * * * * * *
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS AND CROSS-MOTION FOR DISCOVERY
This lawsuit is brought on behalf of four
unsuccessful applicants for federal law enforcement employment and strikes at
the heart of the government’s pre-employment polygraph policies. The
plaintiffs’ prospects for federal law enforcement careers have been irreparably
harmed because of the defendants’ actions. The Federal Bureau of Investigation
(“FBI”) and the United States Secret Service (“USSS”) utilize a so-called
truth-testing device that infringes upon protected Constitutional, statutory
and regulatory rights of innocent and honest applicants for federal employment.
The policies underlying the federal governments’ pre-employment polygraph
program, and the manner in which the defendants implement the tactics, are
Orwellian in nature and impermissible.
For the purposes of this round of
pleadings, the unreliability of the polygraph is not in dispute. The government
itself concedes the machine is imperfect, and since the plaintiffs are
responding to a Motion to Dismiss all allegations within their Complaint must
be taken as true. At this early stage, the plaintiffs have more than
sufficiently demonstrated that their claims under the Administrative Procedure
Act, 5 U.S.C. § 702 et seq. (“APA”), the Fifth Amendment to the United
States Constitution and their assertion of a constitutional right to privacy,
all survive. Thus, this lawsuit must continue into the discovery phase.
SUMMARY
It should be no surprise that the
plaintiffs hold the opinions they do concerning the polygraph since they
continue to suffer the negative effect of the government’s stigmatizing
allegations against them. The controversy surrounding polygraph reliability is
not a subject unknown to the courts of this land. From the Supreme Court’s
decision upholding a blanket ban on the admissibility of polygraph evidence in
military courts because “there is simply no consensus that polygraph evidence
is reliable,” United States v. Scheffer, 523 U.S. 303, 309 (1998), to
the Ninth Circuit Court of Appeals decrying that the polygraph machine has
developed the “misleading reputation as a ‘truth teller’,” United States v.
Marshall, 526 F.2d 1349, 1360 (9th Cir.), cert. denied, 426 U.S. 923
(1976), step by step courts have limited the use of this alleged scientific
device.
This is a case about a specific group of
victims of the polygraph who were and continue to be applicants for federal law
enforcement employment. Surprisingly, in the wake of statutory prohibitions
regarding the use of the polygraph as a screening device and continuing
examples of its fallibility, federal agencies - such as the FBI and USSS - have increased their use of the device.
The majority of applicants who are branded as liars by pre-employment
polygraphs are invariably victimized by questions regarding drug usage. The
events in question, i.e., incidents of marijuana being smoked, typically
occurred years before the examination, often more than a decade earlier.
Recalling the exact number of times is almost farcical, unless perhaps the
applicant only used the substance once or twice on memorable occasions.
The fact that so many years have gone by
significantly impacts upon the polygraph’s reliability. United States v.
Demma, 523 F.2d 981, 987 (9th Cir. 1975)(en banc) (“probative value of the
[polygraph] evidence diminished by the lapse of time between the occurrence of
the events and the taking of the test”). Of course, there is little difficulty
for an applicant to recall the fact that they never used illegal narcotics even
once in their life; a confession many government polygraphers seem to have
trouble accepting based on their own personal biases.
The governments’ polygraphers often have
little sophisticated training and their professionalism ranges across the
board. Some scream at applicants, pound their fists, ask inappropriate
questions about sexual deviance, marital affairs and mental instability. Others
may level accusations of lying, or even lie themselves in order to extract false
confessions. Innocent victims of the polygraph are common, particularly because
“[m]ultiple variables may influence the results of a polygraph test, including
the motivation of the subject, his physical and mental condition, the
competence, integrity, and attitude of the operator, the wording of the
relevant questions, the appropriateness of the control questions, and the
interpretation of the resulting graph.” United States v. Givens, 767
F.2d 574, 585 (9th Cir. 1985). The bottom line is that “the polygraph test in
fact relies upon a highly subjective, inexact correlation of physiological
factors having only a debatable relationship to dishonesty as such. The device
detects lies at a rate only somewhat better than chance.” U.S. v. Piccinonna,
885 F.2d 1529, 1542 (11th Cir. 1989).
Thus, we are now at the next cross-roads
of the battle against the polygraph.[1]
ARGUMENT
“A motion to dismiss for failure to state
a claim upon which relief can be granted is generally viewed with disfavor and
rarely granted.” Doe v. United States Dept. of Justice, 753 F.2d 1092,
1102 (D.C.Cir. 1985), citing 2A Moore’s Federal Practice 12.08 (2d ed.
1948 & Supp. 1984). For the purposes of such a motion, the facts alleged in
the complaint must be accepted as true, and all
factual inferences, ambiguities or doubts concerning the sufficiency of a claim
are to be drawn in the plaintiff's favor. See Scheuer v. Rhodes,
416 U.S. 232,
236 (1979)(emphasis added); Doe, 753 F.2d at 1102.
A motion to dismiss under Rule 12(b)(6)
should be granted only if it appears beyond doubt that "no relief could be
granted under any set of facts that could be proved consistent with the
allegations." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 249-50 (1989). The issue on a motion to dismiss "is not whether . . .
plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer, 416 U.S. at 236.
As the plaintiffs’ Complaint provides
sufficient information to entitle them to pursue their claims, the defendants’
Motion must be denied.
I. PLAINTIFFS’
ALLEGATIONS THAT THE DEFENDANTS’ PRE-EMPLOYMENT
POLYGRAPH PROGRAM VIOLATES THEIR
FIFTH
AMENDMENT CONSTITUTIONAL RIGHTS ARE SUFFICIENT
TO
SURVIVE A MOTION TO DISMISS
The Due Process Clause of the Fifth
Amendment forbids the federal government from depriving persons of “life,
liberty, or property, without due process of law.” “`Liberty’ and ‘property’
are broad and majestic terms. They are among the ‘[g]reat [constitutional]
concepts ... purposely left to gather meaning from experience....[T]hey relate
to the whole domain of social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society remains unchanged.” Board
of Regents v. Roth, 408 U.S.
564, 571
(1971).[2] “The types of ‘liberty’ and
‘property’ protected by the Due Process Clause vary widely, and what may be
required under that Clause in dealing with one set of interests which it
protects may not be required in dealing with another set of interests.” Arnett
et al. v. Kennedy et al., 416 U.S. 134, 155 (1974).
The Supreme Court has emphasized time and
again that “[t]he touchstone of due process is protection of the individual
against arbitrary action of government.” County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. 1708, 1716 (1998)(citation omitted). See also Collins
v. Harker Heights, 503 U.S. 115, 126 (1992)(noting that the Due Process
Clause was intended to prevent government officials “‘from abusing [their]
power, or employing it as an instrument of oppression’”)(citation omitted).
This is so “whether the fault lies in a denial of fundamental procedural
fairness” or “in the exercise of power without any reasonable justification in
the service of a legitimate governmental objective.” Lewis, 118 S.Ct. at
1716.
The Supreme Court’s decision in Jenkins
v. McKeithen, 395 U.S. 411 (1969) recognized that the public branding of an
individual implicates either “liberty” or “property” interests, and that
neither can be achieved by the government without following certain procedural
safeguards to ensure the elimination of arbitrary or capricious actions. “Where
a person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are
essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
A. Applicants For Federal Employment
Possess Constitutional Protections
The language above stems from the
evolution of two centuries of thinking by our nation’s highest court. Yet with
this one case the defendants would have this Court rip the guts from the
development of constitutional protections for individuals who have sought to do
nothing more than devote their loyalties and service to the federal government.
The defendants wish for this Court to isolate a category of individuals and
rule that for some the constitution may as well not exist. Under the
government’s theory, applicants are no more worthy of protection than, for
example, slaves were prior to the Emancipation Proclamation in 1863. They would
have no Fifth Amendment protection from the government stripping their liberty
interests by branding them drug users or liars. They would have no due process
protection from the government disseminating these accusations to prospective
employers, regardless of the accuracy or the consequences. They are, after all,
merely applicants to which the government can and will do with as it sees fit. See
Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss
at 23-27 (filed January 26, 2001)(“Defs’ Memo.”). This is the position the
government is espousing for the Court to adopt. Fortunately, the defendants’
thesis is fundamentally flawed as a matter of law and far afield from the
public policies that now enrich this country.
The defendants wish to exclude applicants
from constitutional protection on the basis that the various precedental
decisions analyzing the existence of liberty interests do so primarily in the
context of employment cases. See e.g., Roth, 408 U.S. 564; Codd
v. Velger, 429 U.S.624 (1977); Doe, 753 F.2d 1092. It is true that
the majority of liberty interest cases involve individuals already employed,
but there is nothing within the Constitution or the case law that has arisen
therefrom that creates the unnatural schism sought by the defendants. “In a
Constitution for a free people, there can be no doubt that the meaning of
‘liberty’ must be broad indeed.” Bolling v. Sharpe, 347 U.S. 497,
499-500; Roth, 408 U.S. at 572.[3]
The plaintiffs, even as applicants, are
entitled to due process because they possess a similar liberty interest “in
avoiding the damage to [their] reputation and business” from the rescinding of
their conditional job offers in the wake of allegations that they lied. Reeve
Aleutian Airways, Inc. v. United States et al., 982 F.2d 594, 598 (D.C.Cir.
1993). And while the defendants may be correct in stating that neither the
Supreme Court or the D.C. Circuit has squarely addressed the “applicant versus
employee” distinction, see Defs’ Memo at 23, it is completely
disingenuous to argue that the “law is to the contrary” when the very question
has been squarely addressed by several courts, including those cited by the
defendants, and implicitly by courts in this Circuit. The law is clear that
applicants possess the same liberty interests as employees.
It is well-settled that a liberty interest
is involved when:
(1)
the individual’s good name, reputation, honor or integrity are at stake by such
charges as immorality, dishonesty, alcoholism, disloyalty, Communism or
subversive acts or (2) the state imposes a stigma or other disability on the
individual which forecloses other opportunities.
Perry v. FBI, 781 F.2d 1294, 1300 (7th
Cir.), cert. denied, 479 U.S. 814 (1986). See Codd, 429
U.S.624; Bishop v. Wood, 426 U.S. 341 (1976); Roth, 408 U.S. at
573-74. The defendants have placed each of the plaintiffs’ good names,
reputations, honors and integrity at stake when they accused them of lying
about drug use, drug dealing, serious crimes, making false statements or other
issues that arose during their application process. See e.g.
Complaint at ¶¶74,76,82,83,91,92,94,103,105,115,116 (filed Oct. 11, 2000)
(“Complaint”). The defendants have imposed a stigma upon each of the plaintiffs
that will foreclose future employment opportunities by having placed derogatory
information regarding the polygraph results in their personnel files. The
defendants have made and will continue to make the results widely available to
third parties, including prospective employers. Furthermore, the plaintiffs
themselves are required to or will reveal the information as they proceed
through the hiring process. See Declaration of John Doe#6 at ¶11 (dated
February 23, 2001), attached as Exhibit “1” (“John Doe#6 Decl.”); Declaration
of John Doe#7 at ¶8 (dated February 24, 2001), attached as Exhibit “2” (“John
Doe#7 Decl.”); Declaration of Jane Doe#1 at ¶13 (dated February 26, 2001),
attached as Exhibit “3” (“Jane Doe#1 Decl.”); Declaration of Jane Doe#2 at ¶5
(dated February 25, 2001), attached as Exhibit “4” (“Jane Doe#2 Decl.”).
“Such a deprivation of liberty has been
recognized not only where the individual is employed by the state, but where he
seeks employment with the state and is denied it.” Waltentas v. Lipper,
636 F.Supp. 331, 337 (S.D.N.Y. 1986), rev’d on other grounds,
862 F.2d 414,
421 (2d Cir. 1988). In so ruling, Waltentas relied upon Doe v. United
States Civil Serv. Com’n, 483 F.Supp. 539 (S.D.N.Y. 1980), where the
plaintiff had been denied a White House fellowship because the defendant had
recorded and included false and derogatory statements about her in her file,
thus making them a basis for the hiring decision, without affording her the
opportunity to refute them. Id. at 566. The court found that “Doe’s
claim is not beyond the ‘logical stopping place’ established by the Supreme
Court decisions concerning the constitutional prohibition against government
defamation.” Id. at 569. The defamation alleged by Doe “did not alter or
extinguish a right or status previously
recognized by state law,” id, citing Paul, 424 U.S. at
711, and the “government[’s] action has operated to bestow a badge of
disloyalty or infamy, with an attendant foreclosure from other employment
opportunity.” Cafeteria & Restaurant Workers v. McElroy, 367 U.S.
886, 898 (1961). See also Carmi v. Metropolitan St. Louis Sewer District,
620 F.2d 672 (8th Cir.), cert. denied, 449 U.S. 892 (1980)(unsuccessful
applicant for federal employment possesses liberty interest when government
impairs applicant’s ability to get another job).
The factual distinction between an
employee and an applicant is irrelevant for the purposes of determining a
constitutional liberty interest based on the analysis of the Supreme Court’s
guidance in Codd, Bishop and Roth. In each of these cases
the plaintiffs did not have “legally cognizable property interest[s] in the
government job at stake”, United States Civil Serv. Com’n, 483 F.Supp.
at 569, but rather relied on the fact:
that
the liberty interest protected by the Due Process Clause prohibits the
government from depriving an individual of government employment on the basis
of false charges and then aggravating the injury, and further diminishing
employment opportunities, by tarnishing the individual’s name and reputation.
Waltentas, 636 F.Supp. at 337, quoting
United States Civil Serv. Com’n, 483 F.Supp. at 570. Of course, in order
to prove impairment of a liberty interest by government defamation, plaintiffs
must allege that the charges were false, see Codd, 429 U.S. at
627-28, and that they were made public by the offending governmental entity,
thus harming the interest in “good name, reputation, honor, or integrity.” Bishop,
426 U.S. at 348 (citation omitted). Both requirements have been met by the
plaintiffs, as detailed throughout their pleadings.
Moreover, this is not the first time an
applicant has raised a Fifth Amendment liberty interest challenge before this
Court or in this Circuit. In Gillett v. King, 931 F.Supp. 9 (D.D.C.
1996), the Honorable Stanley Harris implicitly, if not explicitly, recognized
that an applicant for government employment possesses a constitutional liberty
interest. There the plaintiff sought but was denied a specific position as a
federal Administrative Law Judge (“ALJ”). Id. at 12. In its ruling the
Court relied on a substantially similar decision reached by the D.C. Circuit in
White v. OPM, 787 F.2d 660 (D.C.Cir.), cert. denied,
479 U.S. 885
(1986), which held that the “government’s relationship with an applicant for a particular job does not implicate
the due process clause’s protection of liberty interests.” 787 F.2d at 665
(emphasis added).[4] “Because an ALJ position is
simply one particular job and is not in itself a profession ... plaintiff
cannot establish a liberty interest in becoming an ALJ.” Gillett, 931
F.Supp. at 13.
Thus, Judge Harris, based on the D.C.
Circuit’s ruling in White, acknowledged that liberty interests do exist
when a plaintiff has alleged the government has interfered with the ability to
seek employment within a profession,
which is exactly what the plaintiffs have alleged herein. See e.g.,
Complaint at ¶¶124,125, 132,133,139,145,152,162,177,190; John Doe#6 Decl. at
¶¶8-11; John Doe#7 Decl. at ¶8; Jane Doe#1 Decl. at ¶8-10,12-13; Jane Doe#2
Decl. at ¶5.[5]
Applicants have also been found to possess
constitutional protection to challenge mandatory drug tests, a concept similar
to the notion of mandatory polygraph examinations. Sometimes successfully. Georgia
Ass’n of Educators v. Harris,
749 F.Supp.
1110 (N.D.Ga. 1990). Sometimes not. Willner v. Thornburgh, 928 F.2d 1185
(D.C.Cir. 1991). Moreover, the D.C. Circuit has outright recognized the “right
of a federal job applicant to seek injunctive relief from an agency’s violation
of his constitutional rights in general.” Hubbard v. U.S. E.P.A. Admin.,
809 F.2d 1, 11 (D.C.Cir. 1986)(citations omitted).
In fact, in the case most analogous to
this one, where denied applicants to the Philadelphia Police Department
challenged the use of polygraph testing, the district court found that their
constitutional liberty interests had been violated. Anderson v City of
Philadelphia, 668 F.Supp. 441, 443 (E.D.Pa. 1987). Although the Third
Circuit reversed the decision, Anderson v. City of Philadelphia, 845
F.2d 1216 (3d Cir. 1988), it did so solely on the grounds that the plaintiffs
failed - unlike the plaintiffs in this case - to allege that any of their
polygraph test results were made public. Id. at 1222. Thus, they were
simply unable to meet one of the necessary requirements to prove
unconstitutional deprivation of a liberty interest. The Third Circuit,
therefore, quite clearly recognized that applicants are entitled to and can
pursue a liberty interest claim under the Fifth Amendment.
Finally, the defendants’ own authority
contradicts their argument. See Dziewior v. City of Marengo, 715
F.Supp. 1416, 1423 (N.D.Ill 1989)(noting Seventh Circuit in Perry,
759 F.2d 1271,
1276-82 (7th Cir. 1985) recognized liberty interests have been extended to
applicants for governmental employment). The remaining cases cited by the
defendants set forth the standards for determining whether a liberty interest
has been violated, not whether the right exists.[6]
This Court should explicitly hold that
applicants possess Fifth Amendment liberty interest protections.
B. The Plaintiffs’ Fifth Amendment Liberty
Interests Were Violated By The Defendants’ Pre-Employment Polygraph
Policies Based On The Defendants’ Defamation
Of Their Character Coupled With The Withdrawal Of Their Employment Offers
In A Manner That Continues To Stigmatize Them
In its most recent pronouncement, the D.C.
Court of Appeals has held that deprivation of a protected liberty interest may
be shown either through an adverse employment action in "conjunction"
with official defamation ("defamation plus"), or through an adverse
employment action in "combination" with an automatic or formal
exclusion from some category of employment opportunities, or in combination
with largely precluding one from pursuing a chosen career or profession
("stigma plus"). O'Donnell
v. Barry, 148 F.3d 1126, 1143-44 (D.C.Cir. 1998), citing Kartseva
v. Department of State, 37 F.3d 1524, 1527-29 (D.C.Cir.1994). Mere
defamation alone will not implicate a liberty interest. Davis, 424 U.S.
at 710. But “liberty interests arise if employees are terminated in a manner
that ‘stigmatizes’ them by impugning their reputations or foreclosing their
future employment opportunities,” Orange v. District of Columbia, 59
F.3d 1267, 1274 (D.C.Cir. 1995), citing Roth, 408 U.S. at 572-73,
or, as explained above, when an applicant is denied employment. See e.g.,
Larry v. Lawler, 605 F.2d 954, 956 (7th Cir. 1978); Velger v. Cawley,
525 F.2d 334, 336 (2d Cir. 1975), rev’d on other grounds sub nom, Codd
v. Velger, 429 U.S. 624 (1977); United States Civil Serv. Com’n, 483
F.Supp. at 570-71.
1. The Plaintiffs Suffered Loss Of Government Employment Due To
The Defendants’
Defamatory Allegations That They Lied On Their Applications And/Or
Failed Polygraph Examinations
The D.C. Circuit has “consistently
interpreted Paul’s ‘stigma plus’ test to require two forms of government
action before a plaintiff can ‘transform a [common law] defamation into a
[constitutional] deprivation of liberty.’” Doe, 753 F.2d at 1108, quoting
Mosrie v. Barry, 718 F.2d 1151, 1161-62 (D.C.Cir. 1983). First, the
government must be the source of the defamation. Id. at 1161. In the
plaintiffs’ cases, this is met as it is indisputable the defamation originated
from each of the defendants. Second, there must be a tangible change of status
vis-a-vis the government as a result of the stigma. Since the plaintiffs had
their employment offers rescinded amid allegations of illegal conduct (i.e.,
drug use, drug dealing, lying), they are not only precluded from employment
within the particular agency they applied to, but they have been foreclosed
from all future employment within their intended profession of federal law
enforcement (especially those which maintain polygraph requirements). See
e.g., Complaint at ¶¶124,125,132, 133,139,145,152, 162,177,190; John
Doe#6 Decl. at ¶¶8-11; John Doe#7 Decl. at ¶8; Jane Doe#1 Decl. at ¶8-10,12-13;
Jane Doe#2 Decl. at ¶5. Several plaintiffs, in fact, have already lost out on
subsequent federal employment because of the defendants’ polygraph
examinations, or are in the process of applying, notwithstanding the existing
stigma. None have yet been able to successfully overcome the stigma. Id.
Thus, tangible changes of status clearly exist, and the plaintiffs’ allegations
meet the standards set by this Circuit.
[T]he
principal recent cases from this court in which a government-imposed stigma was
found to have deprived the stigmatized person of a liberty interest involved either loss of employment or foreclosure of a right to be
considered for government contracts in common with all other purposes.
Mosrie, 718 F.2d at 1161 (emphasis
added).[7]
To be sure, the Third Circuit’s decision
in Anderson is the penultimate case for this Court to consider in its
adjudication. The plaintiffs in Anderson asserted that they had been
falsely branded as liars based on their failure to pass the defendants’
polygraph examinations. The Third Circuit reversed the district court’s
decision because of one, and only one,
reason: no publication. Id., 845 F.2d at 1222. The Court noted that:
[w]hile the polygraph
results might conceivably be viewed as stigmatizing the plaintiffs or damaging
their reputations, the plaintiffs have not alleged that any of their polygraph
test results were made public. Rather the department’s assertion that the
polygraph results are kept confidential and undisclosed stands unchallenged.
Given that, we find untenable the plaintiffs’ claim that they have been
deprived of a liberty interest.
Id. This alone permits the
plaintiffs to defeat the government’s Motion to Dismiss their liberty interest
claim. The plaintiffs have clearly asserted that the stigmatizing fact of their
polygraph failures is publicly available. See e.g., Complaint at
¶¶123,124,131,132, 138,139,144,145,151,152,161. Without hesitation the
defendants will, because of their ability to do so through the Privacy Act,
disseminate the stigmatizing details of the plaintiffs’ failed polygraph
examinations throughout law enforcement agencies within federal, state and
local governments.[8] More than that, the
plaintiffs have specifically asserted that the existence of their polygraph
failure has already been publicly disseminated to others. See John Doe#6
Decl. at ¶¶9,11; John Doe#7 Decl. at ¶8; Jane Doe#1 Decl. at ¶¶9,12.[9]
It does not require Einsteinium
intelligence or even a stretch of the imagination to recognize the stigmatizing
nature of an applicant failing a polygraph examination, especially when failure
is tantamount to an accusation of lying.[10] Inaccurate polygraph
evidence clearly creates an “overwhelming potential for prejudice”. Brown v.
Darcy,
783 F.2d 1389,
1396 (9th Cir. 1986). It is worsened by the fact that the defendants permit
little, if any, internal administrative remedies and do not notify the rejected
applicants of any other remedies that may possibly exist.
2. Releasing Polygraph Results Conveys False Impressions
The defendants absurdly attempt to turn
the equation on its head by arguing that no factual dispute exists because “it
is not ‘false’ for an agency to disclose that [the plaintiffs] failed the
agency’s polygraph examination.” See Defs’ Memo at 27-28. The government
reveals its Chutzpah by actually asserting that “a disclosure that a person
‘failed’ the polygraph examination or was considered to be ‘deceptive’ on an
issue is not the same as saying that the person is a liar, or drug dealer, or
drug user.” Id. at 28. The
government not only misstates what is at issue, but distorts reality.
First, this argument raises a factual
question that defeats the governments’ own Motion. It is not appropriate to
resolve this issue at this stage. The plaintiffs have clearly alleged that the
polygraph results do convey false impressions, if not actual facts. See
Complaint at passim; John Doe#6 Decl.
at ¶9; John Doe#7 Decl. at ¶8; Jane Doe#1 Decl. at ¶¶7,9,12; Jane Doe#2 Decl.
at ¶4. For the purpose of this Motion, the Court must accept these allegations
as true. Thus, the conclusory contradictory assertions of the defendants have
absolutely no weight.
Second, failing a polygraph, contrary to
the governments’ assertion, is akin to “lying”. In fact, during the plaintiffs
polygraph examinations, the polygraphers repeatedly noted - indeed screamed at
times - that the respective plaintiff was “lying”. See e.g.
Complaint at ¶¶74,76,82,83,91,92,94,103,105,115,116. The very meaning of the
word “deceptive” is “lying”.[11] The government should not
be permitted to redefine common concepts or words simply to suit its own
interests. The meaning of a polygraph result is either black or white. It
cannot be, as the government intimates, an area of gray. If an applicant fails
a polygraph test, i.e., deception is indicated, that person is viewed as a
liar. Either they have told the truth or they have not. If they have not, they
have lied. Indeed, the last time Congress legislatively addressed the use of
polygraphs, it was noted that “[t]he polygraph must do two things: correctly
identity liars and correctly identify those who are telling the truth.” Employee Polygraph Protection Act: Hearing
on S.185 Before the Senate Committee on Labor and Human Resources, 100th
Cong., 1st Sess. (Appendix to statement of John F. Beary, III, M.D.)(1988).
Third, if one accepts the governments’
argument, then all or at least some of the plaintiffs should now be employed by
the defendant agencies. The plaintiffs have pled that solely as a result of the
failed polygraph examinations their conditional job offers were rescinded. See
Complaint at ¶¶82,95,108,109,116,117. If the results were not as serious as the
defendants would now have us believe, then there is no other explanation as to
why full fledged background investigations were not conducted. Yet the facts
reveal that once an applicant is shown to be “deceptive”, their employment
opportunity is gone. Obviously, the defendants routinely accept their
polygraphers’ “interpretation of results” at a level far more seriously than
the governments’ attorneys would have us believe. See Defs’ Memo at 28.
3. The Disclosure Of False Polygraph Results Is Stigmatizing
The government asserts that the polygraph
results are not stigmatizing because “the experiences of the plaintiffs
themselves demonstrate that the failure of a polygraph does not ‘foreclose’ an
applicant from further employment opportunities in the law enforcement
profession.” See Defs’ Memo at 31. Beyond the fact that this statement
is nothing more than conclusory and cannot serve to overcome the plaintiffs
assertions in their First Amended Complaint, which of course are taken as true
at this stage, the government is wrong.
First, again, these are all factual issues
that are totally inappropriate to resolve in an initial Motion to Dismiss,
especially before any discovery has taken place or a hearing before the
district court. Therefore, the government’s conclusory factual beliefs are
meaningless.
Second, the government casually argues the
entire lawsuit should be dismissed because “[t]wo of the four plaintiffs
concede that they are currently
employed in law enforcement positions ... The remaining two work for law
enforcement entities in technician positions.” See Defs’ Memo at 29
(citations omitted)(emphasis original). This argument is both legally and
factually inaccurate. First, John Doe#6 does not work in a law enforcement
position. See John Doe#6 Decl. at ¶7; Second, although John Doe#7 does
technically work in a law enforcement position with the INS, his agency does
not require polygraph examinations. Because of his failed USSS polygraph, his
opportunities to be hired in a law enforcement position that does require a polygraph examination
have been foreclosed. In fact, as far as we know at this early stage, all
opportunities outside of his current employment are foreclosed. See John
Doe#7 Decl. at ¶7. Third, Jane Doe#1’s position is not considered law enforcement
since she is not a peace officer. She does not carry a weapon, nor does she
possess arrest authority. See Jane Doe#1 Decl. at ¶11. Finally, Jane
Doe#2 works for a county law enforcement agency. What is at issue here is
attaining employment as a law enforcement official at a federal agency that
requires passing a polygraph examination. See Jane Doe#2 Decl. at ¶2.[12] The Complaint clearly
details the stigmatization that has taken place to foreclose employment
opportunities in the plaintiffs’ chosen profession of “federal law enforcement” (especially within those agencies that
require passage of polygraph examinations. See e.g. Complaint at
¶¶124,125,132,133,139, 145,152,162, 177,190. The fact that some of the
plaintiffs might presently be employed by the federal government in a non-law
enforcement capacity or even by a county law enforcement agency is not
relevant, particularly because it is the profession of federal law enforcement (and especially those which maintain
polygraph requirements) that is at issue. The plaintiffs have alleged that the
fact they failed polygraph examinations - which in and of itself is in dispute
- has stigmatized them. Indeed, the existence of a prior failed polygraph
examination administered by one federal agency was the sole reason why an
applicant was denied employment with a different federal agency. See
Declaration of John Doe “C” (dated October 2, 2000), attached as Exhibit “9”.
Given that the second agency issued its decision in writing, this cannot be
disputed. Id. at ¶¶6,8. This fact alone should serve to defeat the
governments’ arguments concerning lack of stigmatization.
In any event, the allegations set forth by
the plaintiffs are sufficient to defeat the government’s Motion to Dismiss at
this early stage. Kartseva, 37 F.3d 1524 (D.C.Cir. 1994); See also
Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C.Cir. 1995)
(government action infringes constitutionally protected liberty interests even
when preclusion from future employment opportunities is broad); McKnight v.
Southeastern Pennsylvania Trans. Auth., 583 F.2d 1229, 1236 (3d Cir.
1978)(holding that harm to future employment possibilities may show sufficient
stigma to allow a claim for a violation of a liberty interest); Greene v.
McElroy, 360 U.S. 474, 492 (1959)(revocation of security clearance possibly
implicates Fifth Amendment liberty interest where action “has seriously affected, if not destroyed, [plaintiff’s]
ability to obtain employment in [chosen] field”).
Finally, as already discussed, the fact
that the plaintiffs “failed” an agency’s polygraph examination was the sole
reason why their conditional job offers were rescinded. How such a fact could
not be considered stigmatizing should mystify all reasonable persons.[13] If it was not, then why
would the application forms for federal law enforcement agencies inquire about
past efforts to obtain employment and, specifically, whether that effort
involved the taking of a polygraph examination? See Exhibits “6-7”.
Obviously, this information is factored into the consideration an agency
utilizes for hiring decisions. The government’s argument that failing a
polygraph examinations is not stigmatizing is just plainly absurd, and should
be rejected.
i. The Defendants’ Actions Have Effectively Precluded
Plaintiffs From Following
Their Trade, Profession Or Other Calling To Attain Employment In Federal Law Enforcement
“The concept of liberty protected by the
due process clause has long included occupational liberty - ‘the liberty to
follow a trade, profession, or other calling.’” Wroblewski v. City of
Washburn, 965 F.2d 452, 455 (7th Cir. 1992)(citations omitted).
Protected
liberty interests are implicated “‘where government action has operated to
bestow [stigma] with an attendant
foreclosure from other employment opportunity.’” Paul, 424 U.S. at
705 (citation omitted).
The D.C. Circuit endorsed a plaintiff’s
right to demonstrate to the Court, obviously after discovery, to what extent
the stigmatizing reasons for discharge have been conveyed to the public or
other government agencies and harmed future employment opportunities. Doe,
753 F.2d at 1113. This public disclosure requirement is met because the
defendants have placed negative information within the plaintiffs’ files which
is “available, even on a limited basis, to prospective employers or government
officials.” Id.
Finally, it should be noted that in
advancing their defenses to a Fifth Amendment argument the government has
intentionally omitted a challenge to the plaintiffs’ assertions that the
defendants will disclose the polygraph results. Therefore, this argument must
be deemed waived for future purposes. See Fed.R.Civ.Proc.R.12(g). In any
event, the law is clear that the publication requirement is satisfied due to
the fact that the defendants have placed the information within the plaintiffs’
files. See e.g. Kartseva,
37
F.3d at 1528 (availability of unfavorable information to future potential
government employers constitutes status change of due process import); Brandt
v. Board of Co-Op. Educational Services, 820 F.2d 41, 45 (2d Cir.
1987)(presence of charges in personnel file has damaging effect on future job
opportunities); Hogue v. Clinton, 791 F.2d 1318, 1322 n.7 (8th
Cir.)(1986)(personnel file replete with wrongdoing sufficient publication if
file made available to prospective employers); Bailey v. Kirk, 777 F.2d
567, 580 n.18 (10th Cir. 1985)(presence of false and defamatory information in
personnel file may constitute publication if not restricted to internal use); Burris
v. Willis Indep. School Dist., Inc., 713 F.2d 1087, 1092 (5th Cir.
1983)(evidentiary hearing required where information contained in files clearly
false and possibility exists that information will not be kept confidential); Old
Dominion Dairy Products, 631 F.2d at 966 (liberty interest claim exists due
to debarment when government agency made written finding and placed it in
permanent file accessed by future government decision-makers); Lawler,
605 F.2d at 958 (government stigmatized plaintiff throughout federal government
by making information available in files); Velger, 525 F.2d at 336
(charges entered in personnel file amounted to publication given that “New York
City ... grants ready access to its confidential personnel files to all
governmental police agencies”); Ervin, 33 F.Supp.2d at 10 (allegations
that government officials made disparaging and defamatory statements that
effectively barred plaintiff from future contracts with defendant sufficient to
overcome motion to dismiss).[14]
4. The Privacy Act Does Not Trump
Constitutional Claims[15]
As a last resort to escape liability under
the Constitution, the government asserts that even if Constitutional protection
exists, the plaintiffs must instead pursue remedies under the Privacy Act, 5
U.S.C. § 552a et seq. See Defs’ Memo at 31-34. The suggestion
that the plaintiffs must make a “response to a challenge of [their]
constitutional liberty interest in writing smacks of administrative tyranny.” Lawler,
605 F.2d at 962.
Indeed, the D.C. Circuit Court of Appeals
has cautioned against the very view expressed by the government. Constitutional
claims should be brought openly, and not under the guise of the Privacy Act.
“Virtually everything the government does involves paperwork. Each time the
government violates the Constitution, statutes or regulations, its paperwork
could therefore said to be ‘inaccurate’ or ‘incomplete.’ Not every such
violation, however, gives rise to a Privacy Act claim. To hold otherwise would
transform every constitutional and statutory claim based on administrative
actions into a Privacy Act suit.” White, 787 F.2d at 664. Of course, it
is well-settled the Privacy Act does not permit a challenge to opinion, see
e.g., Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir.
1999)("[T]he Privacy Act does not allow a court to alter records that
accurately reflect an administrative decision, or the opinions behind that
administrative decision."); Douglas v. Agricultural Stabilization &
Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) ("Privacy Act
does not authorize relitigation of the substance of agency decisions";
"the right response . . . is to correct the disposition under the
Administrative Procedure Act"), which is what the defendants’ argue the
polygraph test results reflect. This alone defeats the government’s argument. See
Defs’ Memo at 27 (“A polygraph examination result is a statement of
opinion....”).
In support of its premise, the government
relies principally on two cases: Mittleman v. United States, 997 F.Supp.
1 (D.D.C. 1998) and Perry, 781 F.2d 1294. Neither case supports the
relief request by the government. The plaintiff in Mittleman attempted a
last ditch effort in one of her several lawsuits to amend her complaint to
include Fifth Amendment claims in litigation that dated back twelve years.
Based on the specific facts in that
case, the court understandably declined to permit the amendment. Id. at
10-11. The only relief she apparently sought was expungement of the records in
question (of course, the plaintiffs herein seek more than just expungement)
which, in fact, the defendant had already agreed to do under the Privacy Act. Id.
at 9 fn.17. Therefore, her constitutional claim would not have provided any
further relief than she already had attained, and would have succumbed to a
motion to dismiss. Id. at 11.
As for Perry, which is of course
not precedent in this Circuit, the decision elaborates upon the litany of
specific steps undertaken to satisfy the plaintiff’s due process rights as well
as crucial factual information that distinguishes the case. In Perry the
government conducted a full background investigation to ascertain the facts, id.
at 1298, the adverse information was neither published nor distributed, id.
at 1299, the document in question in fact did not even accuse the plaintiff of
wrongdoing, id., the plaintiff did not deny he did what he was said to
have done, id. at 1301, and he “was given several opportunities at
various times to dispute the allegedly false information.” Id. None of
the facts are similar to what transpired in the instant matter. Indeed, they
are diametrically opposed.
There is no language within either Mittleman
or Perry that stands for the proposition that the Privacy Act can trump
claims brought under the Constitution. Even to the extent one or both of these
cases could somehow be interpreted in the manner intended by the defendants, it
has been well-settled by the D.C. Circuit that, notwithstanding the
availability of the Privacy Act, expungement of agency records is an available
relief for an action brought directly under the Constitution. See Doe
v. U.S. Air Force, 812 F.2d 738, 740-41 (D.C.Cir. 1987); Hobson v.
Wilson, 737 F.2d 1, 65 (D.C.Cir. 1984); Chastain v. Kelley, 510 F.2d
1232, 1235 (D.C.Cir. 1975).
C. THE PLAINTIFFS ARE CONSTITUTIONALLY ENTITLED
TO NAME-CLEARING HEARINGS AS A DUE PROCESS
REMEDY[16]
As each of the plaintiffs’ professional
reputations were stigmatized by the respective defendants’ actions, it is
well-settled that one remedy “mandated by the Due Process Clause of the [Fifth]
Amendment is an ‘opportunity to refute the charge.’” Codd,
429 U.S. at
627, quoting Roth, 408 U.S. at 573.[17] Therefore, the plaintiffs
are entitled to “name-clearing” hearings. See Codd, 429 U.S. at
627; Roth, 408 U.S. at 573; Doe, 753 F.2d at 1102.
An individual’s right to the protection of
his own good name “reflects no more than our basic concept of the essential
dignity and worth of every human being -- a concept at the root of any decent
system of ordered liberty.” Rosenblatt v. Baer, 383 U.S. 75, 92 (1966).
“[L]iberty is not offended by dismissal from employment itself, but instead by
dismissal based upon an unsupported charge which could wrongfully injure the
reputation of an employee....[T]he purpose of the hearing in such a case is to
provide the person ‘an opportunity to clear his name’....” Arnett, 416
U.S. at 157. The same principle applies to denial of employment.
The “right to be heard before being
condemned to suffer grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is a principle basic to our
society.” Joint Anti-Facist Refugee Committee v. McGrath,
341 U.S. 123,
168 (1951)(Frankfurter, J., concurring). The fundamental requirement of due
process is the opportunity to be heard “at a meaningful time and in a
meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).[18]
1. The Plaintiffs Sought Opportunities To Clear Their Good Names
But All Efforts Were
Rejected Or Ignored By The Defendants
Each of the plaintiffs pressed the
defendant in question for an opportunity to respond to any allegations of drug
use, lying, violent crimes or any other accusations arising from the polygraph
examination. See Complaint at passim.
Oftentimes, they encouraged the respective agency to conduct a full fledged
background investigation to truly determine whether the allegations were true
or not. All attempts to attain what would essentially have been a name-clearing
hearing failed.
These allegations are not unlike those
discussed in Doe which also contained averments that the plaintiff
sought, “but was systematically denied, an opportunity to address the charges
that resulted” in the termination of his employment. Id., 753 F.2d at
1103. The entire thrust of the plaintiffs’ allegations are that the defendants’
“allegations and the discharge have damaged [their] professional reputation[s]
and that [they] ha[ve]
never been given an opportunity to refute the charges in any orderly way.” Id.
More than that, their Complaint specifically requests Codd hearings. See
Complaint at 56.[19]
Codd requires that the defendants
provide each of the plaintiffs “an opportunity to refute, by cross-examination
or independent evidence, the allegations which gave rise to the reputational
injury.” Doe, 753 F.2d at 1114 fn. 27 (citations omitted).[20]
The defendants have never done so, and
this Court should ensure that they do.
2. This Court Has Other Remedies To Chose From In Resolving The
Due Process Violations
A name clearing hearing is but just one
available remedy for a due process violation. There are several others that can
and should be awarded as a result of the defendants’ infringement of the
plaintiffs’ constitutional rights.
i. Reinstatement Of Plaintiffs’
Applications For Employment
The defendants offer a generalized
argument against the availability of reinstatement as a remedy for a
Constitutional violation. See Defs’ Memo at 34. That the plaintiffs may
not possess Fifth Amendment property rights, which has not been alleged
otherwise, does not affect this Court’s ability to order the defendants to
reinstate the plaintiffs applications. In support of its argument, the
government simply proffers a footnote citation. Doe, 753 F.2d at 1100
fn.9. However, since that time the D.C. Circuit has reaffirmed that
“reinstatement clearly is among those equitable remedies available.” Hubbard,
809 F.2d at 11. “[R]einstatement may be had in a constitutional case involving
employment ... ‘if the decision not to rehire him was made by reason of his
exercise of constitutionally protected ... freedoms.’” Id. at 12, quoting
Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84
(1977). This long-standing principle specifically entitles federal job
applicants to reinstatement if they can demonstrate their application was
rejected in violation of the Constitution. Hubbard, 809 F.2d at 12. See
also Vitarelli v. Seaton, 359 U.S. 535 (1959)(reinstatement proper
remedy for violation of agency regulations); Anderson, 668 F.Supp. at
443 (reinstatement ordered for consideration without polygraph results as sole
determinative), rev’d on other grounds, 845 F.2d 1216.
ii. Expungement Of Records
As previously referenced, it is well
settled that under the Constitution and the equitable powers of this Court,
expungement of agency records is entirely permissible and appropriate as a
proper remedy in an action brought directly under the Constitution. See e.g.
Doe, 812 F.2d at 740-41; Smith v. Nixon, 807 F.2d 197, 204
(D.C.Cir 1986); Hobson, 737 F.2d at 65; Chastain, 510 F.2d at
1235; Doe v. FBI, 718 F.Supp. 90, 100 (D.D.C. 1989).
“Statutes requiring maintenance and
regulating destruction of agency records do not prevent an order requiring
expungement, but must ‘yield to statutory or constitutional rights elsewhere
guaranteed.’” Doe, 812 F.2d at 741, citing Hobson, 737
F.2d at 64.[21]
One possible recourse to prevent the
polygraph results from continuing to harm the plaintiffs is to expunge all
references to the existence the examinations ever took place, and all records
associated with the application process so that the plaintiffs can have a fresh
start elsewhere.
II. THE
PLAINTIFFS HAVE ADEQUATELY SET FORTH CLAIMS UNDER THE ADMINISTRATIVE PROCEDURE ACT BASED ON VIOLATIONS OF AGENCY REGULATIONS AND POLICIES AND THE
FIFTH AMENDMENT OF THE UNITED STATES
CONSTITUTION[22]
Under the APA’s waiver of the government’s
sovereign immunity, “[a] person suffering legal wrong because of agency action
... is entitled to judicial review thereof.”
5 U.S.C. § 702.
For claims permitted under the APA, jurisdiction is proper under the
federal-question statute, 28 U.S.C. § 1331, and the declaratory-judgment
statute,
28 U.S.C. §2201
et seq,, both of which have been asserted by the plaintiffs to challenge
the defendants’ decisions. Section 706 sets forth the scope of the Court’s
review of agency decisions. A court may:
(2)
hold unlawful and set aside agency action, findings, and conclusions found to be --
(A)
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;
(B)
contrary to constitutional right, power, privilege, or immunity;
(C)
in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right;
(D)
without observance of procedure required by law ...
(F)
unwarranted by the facts to the extent that the facts are subject to trial
de novo by the reviewing court.
Id. at 706.
“Courts, of course, have long required
agencies to abide by internal, procedural regulations concerning the dismissal
of employees even when those regulations provide more protection than the
Constitution or relevant civil service laws.” Doe, 753 F.2d at 1098. The plaintiffs have submitted sworn
declarations not only from themselves, but from several other victims of the
polygraph device, detailing the unprofessional and unlawful behavior of the
defendants’ polygraph examiners (particularly those within the Secret Service).[23] See Declaration of
John Doe “A” at ¶5 (dated September 29, 2000), attached as Exhibit “12”;
Declaration of John Doe “D” at ¶¶3-7 (dated September 28, 2000), attached as
Exhibit “13”.[24]
As the district court observed in U.S.
v. Galbreth, 908 F.Supp. 877 (D.N.M. 1995):
the validity of polygraph
results in a particular case is absolutely dependent on certain conditions such
as a properly conducted examination by a competent examiner. Where the
examination is not properly conducted by a competent examiner, the validity of
the entire testing procedure and hence the result of the procedure, is
seriously called into question.
Id. at 881-82. Of course, the
burden of proving nonreviewability is on the agencies involved. See Dunlop
v. Bachowski, 421 U.S. 560 (1975); Abbott Laboratories v. Gardner,
387 U.S. 136 (1967).
A. The Privacy Act Does Not Preclude The
Plaintiffs’ APA Claims
It is well-settled that the Privacy Act
“does not authorize relitigation of the substance of agency decisions.” Douglas,
33 F.3d at 785. See e.g., Pellerin v. Veterans Administration,
790 F.2d 1553, 1555 (11th Cir. 1986); White v. CSC, 589 F.2d 713, 715
(D.C.Cir. 1978); Castella v. Long, 701 F.Supp. 578, 584-85 (N.D.Tex.), aff’d
862 F.2d 872 (5th Cir. 1988). “If an agency errs, the right response is not to
rewrite history, changing the record in Orwellian fashion to pretend that it
reached some other conclusion. The right response to error is to correct the
disposition under the Administrative Procedure Act.” Douglas, 33 F.3d at
785.[25]
The Privacy Act, in fact, permits the
defendants to freely disseminate the results of their polygraph examinations
throughout the federal government thereby stigmatizing their ability to secure
employment in their chosen professions. How then, as the defendants argue,
could this be a statute that actually offers protection? Indeed, even accepting
the plaintiffs’ assertion that the polygraph results themselves are inaccurate
(the government argues the technical observation that it is accurate to say the
plaintiffs failed the polygraph, but does not address whether the reason why
they failed is false or reliable), the Privacy Act does not even prohibit the
defendants from disseminating false
information to other federal agencies! Section (e)(6) of the Privacy Act, which
requires an agency to make reasonable efforts to ensure a records’ accuracy
prior to dissemination, contains an exception for the federal government. See
5 U.S.C. § 552a(e)(6).[26]
The defendants fail to cite even one case
that is controlling over this Court or supportive of their argument. This is
simply because the argument must fail.[27]
B. The Civil Service Reform Act Does Not Preclude The Plaintiffs’ APA Claims
Challenging The Polygraph Process[28]
Under the framework established by the
Civil Service Reform Act (“CSRA”), Pub.L.95-454, 92 Stat. 111 (codified as
amended in scattered sections of 5 U.S.C.), the Office of Special Counsel
(“OSC”) is charged with investigating “prohibited personnel practices.” 5
U.S.C. § 1206(a)(1). This includes “an appointment”. Id. at 2302(a)(2).
Although the majority of cases interpreting the CSRA have involved
employee-employer relationships, see e.g., Barnhart v. Devine,
771 F.2d 1515 (D.C.Cir. 1985); Veit v. Heckler, 746 F.2d 508 (9th Cir.
1984); Williams v. IRS, 745 F.2d 702 (D.C.Cir. 1984); Carducci v.
Regan, 714 F.2d 171 (D.C.Cir. 1983), admittedly, however, the statute on
its face appears to include
applicants as well. 5 U.S.C. § 2302(a)(2). But cf. Klaskala v. U.S.
Dep’t of Health and Human Services, 889 F.Supp. 480, 484 (S.D.Fla.
1995)(CSRA not applicable because applicant not employee).[29] Because of the apparent
applicability of the CSRA to applicants, the defendants argue that the
plaintiffs’ APA claims are precluded. See Defs’ Memo at 5-9. This is not
necessarily true.
First, though apparently litigated time
and time again, it is certainly well-settled in this Circuit that the CSRA
precludes any claims brought against federal officials under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Bush v. Lucas, 462 U.S. 367, 367 (1983)(refusing to
create Bivens remedy for First Amendment violation arising from
employment relationship for which Congress provided remedial scheme); Spagnola
v. Mathis, 859 F.2d 223, 224 (D.C.Cir. 1988)(Bivens claim
unavailable even if CSRA provides no remedy). Though tempting as it is, the
plaintiffs herein have not yet named any specific individuals in an attempt to
pursue Bivens remedies, if any exist. Therefore, any analysis
interpreting the balance between the CSRA and the APA must take this
significant distinction into consideration.
In any event, the CSRA does not preclude
the plaintiffs’ claims because it (1) does not apply to applicants, as already
mentioned, and (2) the defendants are estopped from arguing that administrative
remedies have not been exhausted. Moreover, even should the defendants not be
estopped, the plaintiffs’ claims can still proceed because exhaustion would be
futile. Finally, the CSRA does not apply to the conduct of the defendants’
polygraphers as no “prohibited personnel action” took place within the scope of
the statute.
1. The
Defendants Are Estopped From Arguing The Plaintiffs Failed To Exhaust Administrative
Remedies
Assuming that the CSRA does apply and the
plaintiffs were required to file claims with the OSC, the defendants
intentionally misled them by deliberately failing to inform them of available
administrative remedies. In fact, the defendants specifically indicate in the
letters rescinding the employment offers that no further avenues exist to
pursue an appeal. Compare Exhibit “14” (examples of letters received by
plaintiffs) with Exhibit “15” (letter received from U.S. Marshals Service by
John Doe “C” indicating appeal could be taken to Merit System Protection
Board). As a result, the defendants are estopped from claiming the CSRA
precludes APA review.
Estoppel is “an equitable doctrine invoked
to avoid injustice in particular cases.” Heckler v. Community Health
Services, 467 U.S. 51, 59 (1984). Although whether estoppel is available
against the government is an unresolved question, “federal cases have indicated
that circumstances giving rise to estoppel can create a property interest where
one would not otherwise exist.” Klaskala, 889 F.Supp. at 486, citing
Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1380 (11th Cir.
1994), cert. denied, 513 U.S. 1080 (1995).[30]
Courts which have considered the revocation of
federal employees have articulated the following estoppel test: (1) The party
to be estopped must know the facts; (2) he must intend that his conduct shall
be acted upon or must so act that the party asserting the estoppel has a right
to believe it is so intended; (3) the latter must be ignorant of the true
facts; (4) he must rely on the former’s conduct to his injury; and (5) he must
establish affirmative misconduct on the part of the government.
Klaskala, 889 F.Supp. at 487
(citations omitted). In National Treasury Employees Union v. Reagan, 663
F.2d 239 (D.C.Cir. 1981), several federal appointees challenged the loss of
their jobs due to the imposition of a hiring freeze. Although the Court held
that estoppel was not present based on the general facts of a class action
suit, it remanded the individual estoppel and Fifth Amendment claims back to
the district court to allow a determination as to whether viable causes of
action could be established. Id. at 249 fn. 17. The issue was left open
for the plaintiffs to explore through discovery.
In applying the estoppel test to the
plaintiffs’ circumstances, the requirements are sufficiently satisfied. First,
the FBI and USSS - the parties to be estopped - knew the facts. Indeed, they
were the only entities that possessed all the facts. Second, by writing the
plaintiffs and telling them they had no further avenues of recourse available
to pursue employment, the defendants intended for their conduct to cause the
plaintiffs to rely on those statements. Third, the plaintiffs were all unaware
of the possibility of OSC review, if it even does exist. And it certainly does
not for those who applied to the FBI as the FBI is exempt. 5 U.S.C. §
2302(a)(2)(C)(ii). Fourth, the plaintiffs relied on the defendants’ statements
to their detriment. They all lost out on their employment offers, and
subsequent employment opportunities with other agencies. Finally, the
plaintiffs have alleged affirmative misconduct on the part of the government throughout
their Complaints. See Complaint at passim.
Although it may be true that these are
difficult claims to raise, this should not dissuade this Court from following
the lead of the D.C. Circuit and the Southern District of Florida and permit
the claims to proceed through discovery before a final determination is made on
this specific issue. See Klaskala, 889 F.Supp. at 489 (“the Court
is not inclined to dismiss [plaintiff’s] Fifth Amendment or Estoppel claims at
this early stage of the proceedings”).
2. The Plaintiffs Were Not Required To Exhaust Or Pursue
Administrative Remedies
Through The CSRA As Such Efforts Would Be Futile
“The general rule in this circuit is that
the exhaustion requirement ‘may be waived in only the most exceptional circumstances.’”
Communications Workers of America v. AT & T, 40 F.3d 426, 432
(D.C.Cir. 1994)(quotation omitted). “This court has recognized a discretionary
exception to the exhaustion requirement where resort to administrative remedies
‘would be futile because of the certainty of an adverse decision.” Id., quoting,
Randolph-Sheppard Vendors of America v. Weinberger, 795 F.2d 90, 105
(D.C.Cir. 1986).
The government has accurately noted that
the FBI is exempt from the CSRA.
5 U.S.C.
2302(a)(2)(C)(ii); Defs’ Memo at 6-7. Therefore, should the government’s CSRA
argument prevail, there is absolutely no relief available through the OSC as an
administrative remedy. Resort would be futile.[31] Also, “an adverse decision
can also be certain if an agency has articulated a very clear position on the
issue which it has demonstrated it would be unwilling to reconsider.” Communications
Workers of America, 40 F.3d at 432. The obviously entrenched positions of
the USSS clearly demonstrates the futility of any administrative exercise to
challenge its polygraph decisions. See Exhibit “14”.
3. The
Plaintiffs’ Challenge To The Conduct Of The Defendants’ Polygraph Examiners
Is Not Precluded By The CSRA As The Polygraphers Did Not Take
Or Fail To Take A Personnel Action Involving The Plaintiffs
The plaintiffs have alleged that the
defendants’ polygraphers were not competent or ethical, that their conduct fell
outside accepted standards and that they were biased against certain categories
of applicants. See e.g., Complaint at ¶¶121,128. These claims are
not precluded by the CSRA, and can be addressed through the APA as they are not
“prohibited personnel actions” as contemplated within the CSRA.[32]
The defendants aptly identify that the
only section of the CSRA that can possibly apply is 5 U.S.C. 2302(b)(11) which
states:
(b) Any employee who has
authority to take, direct others to take, recommend, or approve any personnel
action, shall not, with respect to such authority -
****
(11) take or fail to take
any other personnel action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or directly concerning, the
merit system principles contained in section 2301 of this title.
Even assuming that this section prohibits
the plaintiffs from challenging the actual decision of the respective defendant
not to hire them based on a violation of an agency regulation, this has no
application to the conduct of individual polygraph examiners who have
absolutely no authority whatsoever in the decision-making process of personnel
actions. “Personnel action” is specifically defined as “an appointment”. Id.
at
§
2302(a)(2)(A)(i). That is, whether or not the applicant is hired or not.
Section (b)(11) only applies to an employee who “has authority to take, direct
others to take, recommend, or approve” an appointment.
Polygraph examiners, who are located
throughout the country in the defendants’ field offices, do not fall within
this category of employees. They do not possess the authority to take steps to
hire an applicant. They do not possess authority to direct others to take steps
to hire an applicant. They do not recommend an applicant should or should not
be hired. Nor do they approve the hiring of an applicant. They administer a
polygraph examination and report their findings. That is it.[33] The employees who do
possess the relevant authority are at the headquarters of the defendant
agencies. The polygraph results are always reviewed by the decision-making
employees in Washington, D.C., and it is they who decide whether the applicant
deserves “an appointment”. In fact, the decision-makers could disregard the
polygraph examiner’s findings whenever they want. In fact, this is what
occurred in 1994 when the FBI disregarded the polygraph results when half of
its recruitment class failed the examination. See Complaint at ¶45.
Even if the CSRA precludes the plaintiffs’
APA claims to challenge the decision not to hire them, the plaintiffs are
nonetheless fully able to challenge the conduct of the defendants’ polygraphers
to arrive at a conclusion that they showed “deception” on their polygraph
examinations. This is analogous to the scenario that was addressed by the
United States Court of Appeals for the Federal Circuit in Frederick v.
Department of Justice, 73 F.3d 349 (Fed.Cir. 1996). In Frederick, an
Immigration & Naturalization Service (“INS”) Patrol Agent in Charge
successfully defeated his suspension because the filing of his unfavorable
recommendation evaluation regarding a trainee was not considered a “personnel
action” under the CSRA. Id. at 354. The evaluation recommended that the
trainee not be retained by the INS, which is certainly a serious and
significant personnel matter. Indeed, the trainee resigned from the INS. Id.
at 351. However, the evaluation “did not effectuate any such action and had no
binding effect on the agency.” Id. at 353.
In the instant matter, the polygrapher’s
report does not even constitute a recommendation. There is no recommendation
within a polygrapher’s report. See Exhibit “17” (FBI polygraph report of
Jane Doe#2, which is reflective of all agencies). Instead, it merely offers the
polygrapher’s opinion of the results of the examination as to whether deception
has been found. It does not effectuate any action, and it certainly has no
binding effect. The CSRA:
specifically
distinguishes between those who recommend
personnel actions and those who take or
fail to take personnel actions. Id. at 2302(b)-(b)(8). In terms of
being within the scope of the [CSRA], the act applies to those who have the
authority to recommend a personnel
action. Id. 2302(b). However, the [CSRA] under section 2302(b)(8) only
attaches liability to those who take or
fail to take a personnel action.
Frederick, 73 F.3d at 354 (emphasis
original).[34] As with Frederick,
the polygraph examiners who administered the polygraphs examinations to the
plaintiffs “did not take or fail to take a personnel action.” Id.
Therefore, the conduct of the polygraphers is reviewable by this Court under
the APA.
C. Plaintiffs Have Demonstrated That There Is A Threat Of
Substantial And Immediate Irreparable Harm
The defendants concede that the plaintiffs
can demonstrate an “irreparable injury” by alleging prospective violations of a
constitutional right. See Defs’ Memo at 9. They challenge, however,
whether the plaintiffs have alleged “facts that show a ‘substantial and
immediate’ threat.” Id. However, the plaintiffs’ sworn declarations and
Complaint offer more than enough evidence that the defendants’ actions have
created actual “substantial and immediate” irreparable injuries. See
Complaint at passim; John Doe#6 Decl.
at passim; John Doe#7 Decl. at passim; Jane Doe#1 Decl. at passim; Jane Doe#2 Decl. at passim. The terms “substantial” or
“immediate” are not defined by the cases relied upon by the defendants.
Presumably, the terms are defined by their common usage.
As described throughout this pleading, the plaintiffs’ have already lost out on