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A forum for free and open discussion of polygraph-related topics
Posted by John M.
- Feb 23, 2026, 12:55 PMGeorge,
Thank you — I sincerely appreciate your thoughtful response and your encouragement over the years. While I was certainly disappointed that the Court declined to hear the case, I also recognize that meaningful change rarely happens in a single decision or a single forum. As I mentioned this morning, issues like this tend to move along a longer arc, shaped over time by evidence, awareness, and public understanding as much as by litigation.
One thing I do take some comfort in is that the record now exists. The filings, documentation, and proceedings are part of the public domain, and if they help others better understand both the limitations of the polygraph and the potential human consequences when it is relied upon too heavily, then some good has come from the process.
I also want to take a moment to thank you personally for your steadfast commitment over the years to standing up for individuals who have been harmed by the misuse and overreliance on polygraph testing. Your work has provided an important resource, not only for those directly affected, but also for anyone trying to understand the broader policy and scientific issues involved. I know firsthand how valuable that support and information can be.
I have already begun reaching out to several national investigative reporters in the hope that broader awareness may develop around the policy issues involved — particularly the federal government's continued exemption from the Employee Polygraph Protection Act. Ultimately, I believe meaningful reform will likely require legislative attention, and public understanding is often the first step toward that kind of change. My hope is that continued discussion, combined with scientific research and real-world experiences, may eventually lead to a reconsideration of that exemption.
I'm also continuing to work on the book, which I hope will contribute to a thoughtful and constructive conversation about both the human and institutional dimensions of polygraph policy.
I'm also very grateful for the support and knowledge shared by members of this community. Whatever happens next, I remain convinced that raising awareness and asking difficult questions is worthwhile.
— John
Thank you — I sincerely appreciate your thoughtful response and your encouragement over the years. While I was certainly disappointed that the Court declined to hear the case, I also recognize that meaningful change rarely happens in a single decision or a single forum. As I mentioned this morning, issues like this tend to move along a longer arc, shaped over time by evidence, awareness, and public understanding as much as by litigation.
One thing I do take some comfort in is that the record now exists. The filings, documentation, and proceedings are part of the public domain, and if they help others better understand both the limitations of the polygraph and the potential human consequences when it is relied upon too heavily, then some good has come from the process.
I also want to take a moment to thank you personally for your steadfast commitment over the years to standing up for individuals who have been harmed by the misuse and overreliance on polygraph testing. Your work has provided an important resource, not only for those directly affected, but also for anyone trying to understand the broader policy and scientific issues involved. I know firsthand how valuable that support and information can be.
I have already begun reaching out to several national investigative reporters in the hope that broader awareness may develop around the policy issues involved — particularly the federal government's continued exemption from the Employee Polygraph Protection Act. Ultimately, I believe meaningful reform will likely require legislative attention, and public understanding is often the first step toward that kind of change. My hope is that continued discussion, combined with scientific research and real-world experiences, may eventually lead to a reconsideration of that exemption.
I'm also continuing to work on the book, which I hope will contribute to a thoughtful and constructive conversation about both the human and institutional dimensions of polygraph policy.
I'm also very grateful for the support and knowledge shared by members of this community. Whatever happens next, I remain convinced that raising awareness and asking difficult questions is worthwhile.
— John
Posted by George W. Maschke
- Feb 23, 2026, 11:05 AMJohn,
I very much regret that the U.S. Supreme Court decided not to hear your case. I'm thankful for all you have done over the years to help call public attention to the need for polygraph policy reform. No doubt the public filings associated with your administrative and judicial cases will continue to prove helpful for others involved in or contemplating polygraph-related litigation.
I look forward to reading your forthcoming book, which I'm sure will be of interest to many and will help to shape public discourse on polygraph policy.
I very much regret that the U.S. Supreme Court decided not to hear your case. I'm thankful for all you have done over the years to help call public attention to the need for polygraph policy reform. No doubt the public filings associated with your administrative and judicial cases will continue to prove helpful for others involved in or contemplating polygraph-related litigation.
I look forward to reading your forthcoming book, which I'm sure will be of interest to many and will help to shape public discourse on polygraph policy.
Posted by John M.
- Feb 23, 2026, 10:54 AMI learned today that the Supreme Court denied my petition for certiorari. Obviously, I'm disappointed. After everything that has happened over the past several years — professionally, medically, and personally — I had hoped the Court might take the opportunity to address the larger legal questions raised by my case.
That said, I also understand the reality of how the Supreme Court works. The Court denies the overwhelming majority of petitions it receives each year, and a denial does not mean the justices agreed with the lower courts or rejected the underlying issues. More often, it simply means the Court chose not to take this particular case as the vehicle to address them.
From the beginning, my goal has never been limited to a personal outcome. What I experienced exposed, at least for me, is a structural problem: the gap between what people assume that the polygraph can measure, and what it actually does measure, and the very real human consequences when institutions rely on them too heavily. I hoped the Court might clarify the boundaries between agency discretion and the legal safeguards that are supposed to protect employees once they are already inside the system.
One issue that continues to stand out to me is the federal government's exemption from the Employee Polygraph Protection Act (EPPA). Congress passed the EPPA in 1988 because of widespread concern about the reliability and fairness of polygraph testing in the private sector. Lawmakers recognized that these tests could be misused and could cause significant harm to employees. Yet federal agencies were carved out of those protections, even though the same scientific limitations apply. In my view, that inconsistency deserves serious reexamination. If polygraph testing is considered too problematic to allow broadly in private employment, it raises legitimate questions about why government employees and applicants should be subject to fewer protections rather than more.
Another issue is that the Department of Defense already has internal policies intended to protect employees from unfavorable administrative actions based solely on polygraph results (DoDI 5210.91) and requires that individuals with psychological, emotional, or other mental health conditions that could affect testing be excused from polygraph examinations altogether. The problem, as I experienced it, is not the absence of policy but the failure to follow and enforce it. When those safeguards are not applied in practice, and when there is no meaningful mechanism to ensure compliance, the protections exist only on paper.
For that reason, I believe one constructive path forward is legislative. Ultimately, Congress has the authority to revisit the EPPA exemption and evaluate whether it still makes sense in light of modern scientific understanding and the experiences of those affected. I would encourage anyone who shares concerns about polygraph use to consider engaging with their elected representatives and supporting efforts to review or reform the current framework.
Even though the petition was denied, I don't see this as the end of anything. Issues like this tend to move along a long arc. Over time, scientific understanding evolves, public awareness grows, and institutions are eventually forced to re-examine practices that once seemed unquestionable. Polygraph skepticism — both in research and in public discussion — is already far more visible than it was decades ago, and I believe that trajectory will continue.
Personally, I intend to keep contributing to that conversation. I'm continuing to work on a book about my experience and the broader legal, scientific, and institutional questions surrounding polygraph use. My hope is that sharing what happened — and what it reveals about the system — may help others in similar situations and encourage more evidence-based approaches in the future.
I want to thank everyone here who has offered support, information, and encouragement along the way. Whatever happens next, I remain convinced that raising awareness and asking difficult questions is worthwhile. Sometimes change doesn't happen in a courtroom. Sometimes it happens because enough people understand the problem.
— John
That said, I also understand the reality of how the Supreme Court works. The Court denies the overwhelming majority of petitions it receives each year, and a denial does not mean the justices agreed with the lower courts or rejected the underlying issues. More often, it simply means the Court chose not to take this particular case as the vehicle to address them.
From the beginning, my goal has never been limited to a personal outcome. What I experienced exposed, at least for me, is a structural problem: the gap between what people assume that the polygraph can measure, and what it actually does measure, and the very real human consequences when institutions rely on them too heavily. I hoped the Court might clarify the boundaries between agency discretion and the legal safeguards that are supposed to protect employees once they are already inside the system.
One issue that continues to stand out to me is the federal government's exemption from the Employee Polygraph Protection Act (EPPA). Congress passed the EPPA in 1988 because of widespread concern about the reliability and fairness of polygraph testing in the private sector. Lawmakers recognized that these tests could be misused and could cause significant harm to employees. Yet federal agencies were carved out of those protections, even though the same scientific limitations apply. In my view, that inconsistency deserves serious reexamination. If polygraph testing is considered too problematic to allow broadly in private employment, it raises legitimate questions about why government employees and applicants should be subject to fewer protections rather than more.
Another issue is that the Department of Defense already has internal policies intended to protect employees from unfavorable administrative actions based solely on polygraph results (DoDI 5210.91) and requires that individuals with psychological, emotional, or other mental health conditions that could affect testing be excused from polygraph examinations altogether. The problem, as I experienced it, is not the absence of policy but the failure to follow and enforce it. When those safeguards are not applied in practice, and when there is no meaningful mechanism to ensure compliance, the protections exist only on paper.
For that reason, I believe one constructive path forward is legislative. Ultimately, Congress has the authority to revisit the EPPA exemption and evaluate whether it still makes sense in light of modern scientific understanding and the experiences of those affected. I would encourage anyone who shares concerns about polygraph use to consider engaging with their elected representatives and supporting efforts to review or reform the current framework.
Even though the petition was denied, I don't see this as the end of anything. Issues like this tend to move along a long arc. Over time, scientific understanding evolves, public awareness grows, and institutions are eventually forced to re-examine practices that once seemed unquestionable. Polygraph skepticism — both in research and in public discussion — is already far more visible than it was decades ago, and I believe that trajectory will continue.
Personally, I intend to keep contributing to that conversation. I'm continuing to work on a book about my experience and the broader legal, scientific, and institutional questions surrounding polygraph use. My hope is that sharing what happened — and what it reveals about the system — may help others in similar situations and encourage more evidence-based approaches in the future.
I want to thank everyone here who has offered support, information, and encouragement along the way. Whatever happens next, I remain convinced that raising awareness and asking difficult questions is worthwhile. Sometimes change doesn't happen in a courtroom. Sometimes it happens because enough people understand the problem.
— John
Posted by John M.
- Jan 21, 2026, 11:12 AMNext, I want to focus on the proper scope of judicial deference established in the landmark case Department of the Navy v. Egan. Understanding the precise limits of the Egan doctrine is therefore of critical strategic importance for upholding the statutory rights of federal employees.
I. STATEMENT OF THE ISSUE
The core legal question presented is whether the precedent set in Egan, which pertains exclusively to formal security-clearance adjudications, can be legitimately extended to insulate routine personnel actions from judicial oversight. This includes decisions regarding medical unsuitability and an agency's refusal to provide reasonable accommodations, even in cases where an employee's security clearance has not been suspended, revoked, or otherwise negatively adjudicated.
The lower courts have incorrectly and dangerously expanded the Egan's doctrine, creating an untenable conflict with mandatory federal regulations and threatening the fundamental statutory rights of federal employees. This expansion is a misapplication of precedent that demands correction. By allowing agencies to merely invoke terms like "trust" or "security" to justify adverse actions, courts are effectively nullifying legal and regulatory protections. To fully grasp this judicial overreach, it is essential to first revisit the foundational principles and intended limits of the Egan decision itself.
II. THE FOUNDATIONAL PRECEDENT: THE LIMITED SCOPE OF EGAN DEFERENCE
Precisely defining the original holding in Department of the Navy v. Egan is the critical first step in identifying its subsequent misapplication. The Supreme Court's decision was intentionally narrow and designed to protect a very specific type of executive branch function from judicial second-guessing. Understanding these intended limits is essential to recognizing how far some courts have strayed from the original precedent.
The specific and narrow domain where Egan deference applies is the protection of the predictive judgments inherent in a formal security-clearance adjudication. This deference is tied to the unique, forward-looking assessment an agency must make when deciding whether to grant, deny, or revoke an individual's access to classified information. The Court recognized that such a decision is an "attempt to predict a person's future behavior" and that judges lack the institutional competence and access to sensitive information to replicate this process.
Consequently, Egan deference does not extend to other types of agency actions, even if they occur within a national security context. The precedent explicitly carves out broad categories of conduct from its protective scope.
Conduct Explicitly Outside Egan's Protection
• Supervisory actions
• Medical unsuitability findings
• Refusals to accommodate
In summary, the deference established in Egan is exclusively tied to the formal, substantive act of adjudicating a security clearance. It was never intended to provide a blanket immunity for any and all personnel decisions affecting a cleared employee. This clear boundary is central to understanding how the doctrine has been improperly expanded.
III. THE UNWARRANTED EXPANSION: APPLYING EGAN ABSENT A CLEARANCE ADJUDICATION
The central issue in my case is the failure of the lower courts to maintain the critical distinction between a formal security action and a general personnel action that merely invokes security concerns. When a court treats these two distinct categories as one and the same, it improperly extends Egan deference into areas where judicial review is not only appropriate but necessary.
My case is illustrative of this misapplication. The agency's adverse action was insulated from review despite the complete absence of a negative security-clearance adjudication. My clearance was never suspended, revoked, or otherwise subject to an adverse formal review. To the contrary, multiple security reviews consistently reaffirmed my eligibility and explicitly found no misconduct, no compromise of classified information, and no other basis for an adverse clearance action. The sole consistent finding by the agency was a medical one: that I was psychologically unsuitable for further polygraph testing.
Despite these facts, the lower courts deferred to the Defense Intelligence Agency's (DIA) actions. They treated the agency's generic assertions of lost "trust" and vague "security concerns" as dispositive, thereby barring any substantive review of the agency's conduct. By accepting "trust" as a talismanic incantation, the lower courts allowed the agency to bypass the entire formal apparatus of security-clearance adjudication that Egan was designed to protect, effectively rendering those procedures optional. This approach stands in direct conflict with decades of established legal precedent, which consistently affirms judicial authority in such circumstances.
This misapplication of precedent is profound, but the error is even more stark when measured against the agency's flagrant violation of its own binding regulations.
IV. THE CONFLICT WITH MANDATORY REGULATORY FRAMEWORKS
A foundational principle of administrative law holds that judicial deference does not apply when an agency violates its own non-discretionary regulations. This principle acts as a crucial check on executive power, ensuring that agencies are bound by the rules they establish. When a court shields such violations from review under the guise of Egan, it abdicates its responsibility to enforce the rule of law.
In this instance, the agency violated the specific regulatory framework established in Department of Defense Instruction (DoDI) 5210.91, which governs the polygraph program. The Agency committed two specific, nondiscretionary violations of this binding instruction.
1. Failure to Accommodate Medical Unfitness The regulation requires agency Components to postpone or grant an exemption from a polygraph examination when an employee is determined to be medically or psychologically unfit for the procedure. This is a mandatory duty, not a discretionary choice.
2. Improper Basis for Adverse Action The regulation explicitly prohibits any unfavorable administrative action from being based solely on an unresolved CSP result. An agency cannot use an inconclusive test as the exclusive justification for an adverse personnel decision.
The central argument stemming from these violations is that they fall entirely outside the scope of Egan. Because these regulations are mandatory, they eliminate agency discretion in these specific circumstances. The Supreme Court's deference in Egan was premised on judicial inability to replicate an agency's complex, predictive assessment. That premise evaporates when the agency's conduct is governed not by prediction, but by a mandatory, binary regulatory command: either the employee is medically unfit and the test must be postponed, or they are not. Reviewing compliance with such a command requires no specialized security expertise. Where there is no discretion, there can be no "predictive national-security judgment" for a court to defer to. Insulating these plain regulatory violations from review has severe consequences for the legal rights of all federal employees.
V. RAMIFICATIONS: THE CREATION OF ANN UNREVIEWABLE ZONE OF AGENCY ACTION
The misapplication of Eganis not merely a procedural error; it is a substantive threat to the rule of law and the congressionally mandated rights of federal employees. By expanding Egan to cover ordinary personnel matters, courts are carving out a vast and dangerous zone of unreviewable agency action, where statutory and regulatory protections can be ignored with impunity.
The lower court's expansive interpretation of Egan, if permitted to stand, creates several critical threats to the federal administrative system:
• Nullification of Regulatory Commands: It renders mandatory, non-discretionary protections, such as those contained in DoDI 5210.91, entirely unenforceable. An agency can violate its own rules without fear of judicial correction.
• Circumvention of Federal Law: It grants agencies an unchecked ability to sidestep federal disability law. An agency could deny a reasonable accommodation for a medical condition by simply invoking security terminology, thereby immunizing a potentially discriminatory act from review.
• Immunization of Adverse Actions: Any adverse personnel action taken against an employee with a security clearance could be immunized from judicial scrutiny. An agency would only need to make a bare assertion of lost "trust" or "security concerns," even in the complete absence of a formal clearance adjudication.
• Erosion of the Rule of Law: Ultimately, it creates a broad and untenable "zone of unreviewability" where the fundamental statutory rights of federal employees are effectively extinguished. This outcome undermines the core principle that the government must operate within the bounds of the law.
These ramifications transform Egan from a narrow shield for predictive security judgments into a sword that agencies can wield to strike down employee rights without oversight.
VI. CONCLUSION
The expansion of Department of the Navy v. Egan beyond its narrow and intended context of formal security-clearance adjudications constitutes a significant judicial error. This overreach has created a legal landscape where the foundational principles of administrative law and the statutory rights of federal employees are placed in serious jeopardy.
This trend allows federal agencies to ignore their own binding regulations and violate federal disability laws under the amorphous guise of "national security." By accepting generic assertions of "trust" as a sufficient basis to avoid judicial review—even when no adverse clearance action has occurred—courts are abdicating their duty to ensure that agencies act within the law.
Therefore, judicial review is warranted to correct this overreach, reaffirm the clear and limited scope of Egan deference, and ensure the continued protection of the rule of law. Restoring proper judicial oversight is essential to prevent the creation of an unreviewable zone of agency power and to safeguard the rights that Congress has granted to the nation's federal workforce.
I. STATEMENT OF THE ISSUE
The core legal question presented is whether the precedent set in Egan, which pertains exclusively to formal security-clearance adjudications, can be legitimately extended to insulate routine personnel actions from judicial oversight. This includes decisions regarding medical unsuitability and an agency's refusal to provide reasonable accommodations, even in cases where an employee's security clearance has not been suspended, revoked, or otherwise negatively adjudicated.
The lower courts have incorrectly and dangerously expanded the Egan's doctrine, creating an untenable conflict with mandatory federal regulations and threatening the fundamental statutory rights of federal employees. This expansion is a misapplication of precedent that demands correction. By allowing agencies to merely invoke terms like "trust" or "security" to justify adverse actions, courts are effectively nullifying legal and regulatory protections. To fully grasp this judicial overreach, it is essential to first revisit the foundational principles and intended limits of the Egan decision itself.
II. THE FOUNDATIONAL PRECEDENT: THE LIMITED SCOPE OF EGAN DEFERENCE
Precisely defining the original holding in Department of the Navy v. Egan is the critical first step in identifying its subsequent misapplication. The Supreme Court's decision was intentionally narrow and designed to protect a very specific type of executive branch function from judicial second-guessing. Understanding these intended limits is essential to recognizing how far some courts have strayed from the original precedent.
The specific and narrow domain where Egan deference applies is the protection of the predictive judgments inherent in a formal security-clearance adjudication. This deference is tied to the unique, forward-looking assessment an agency must make when deciding whether to grant, deny, or revoke an individual's access to classified information. The Court recognized that such a decision is an "attempt to predict a person's future behavior" and that judges lack the institutional competence and access to sensitive information to replicate this process.
Consequently, Egan deference does not extend to other types of agency actions, even if they occur within a national security context. The precedent explicitly carves out broad categories of conduct from its protective scope.
Conduct Explicitly Outside Egan's Protection
• Supervisory actions
• Medical unsuitability findings
• Refusals to accommodate
In summary, the deference established in Egan is exclusively tied to the formal, substantive act of adjudicating a security clearance. It was never intended to provide a blanket immunity for any and all personnel decisions affecting a cleared employee. This clear boundary is central to understanding how the doctrine has been improperly expanded.
III. THE UNWARRANTED EXPANSION: APPLYING EGAN ABSENT A CLEARANCE ADJUDICATION
The central issue in my case is the failure of the lower courts to maintain the critical distinction between a formal security action and a general personnel action that merely invokes security concerns. When a court treats these two distinct categories as one and the same, it improperly extends Egan deference into areas where judicial review is not only appropriate but necessary.
My case is illustrative of this misapplication. The agency's adverse action was insulated from review despite the complete absence of a negative security-clearance adjudication. My clearance was never suspended, revoked, or otherwise subject to an adverse formal review. To the contrary, multiple security reviews consistently reaffirmed my eligibility and explicitly found no misconduct, no compromise of classified information, and no other basis for an adverse clearance action. The sole consistent finding by the agency was a medical one: that I was psychologically unsuitable for further polygraph testing.
Despite these facts, the lower courts deferred to the Defense Intelligence Agency's (DIA) actions. They treated the agency's generic assertions of lost "trust" and vague "security concerns" as dispositive, thereby barring any substantive review of the agency's conduct. By accepting "trust" as a talismanic incantation, the lower courts allowed the agency to bypass the entire formal apparatus of security-clearance adjudication that Egan was designed to protect, effectively rendering those procedures optional. This approach stands in direct conflict with decades of established legal precedent, which consistently affirms judicial authority in such circumstances.
This misapplication of precedent is profound, but the error is even more stark when measured against the agency's flagrant violation of its own binding regulations.
IV. THE CONFLICT WITH MANDATORY REGULATORY FRAMEWORKS
A foundational principle of administrative law holds that judicial deference does not apply when an agency violates its own non-discretionary regulations. This principle acts as a crucial check on executive power, ensuring that agencies are bound by the rules they establish. When a court shields such violations from review under the guise of Egan, it abdicates its responsibility to enforce the rule of law.
In this instance, the agency violated the specific regulatory framework established in Department of Defense Instruction (DoDI) 5210.91, which governs the polygraph program. The Agency committed two specific, nondiscretionary violations of this binding instruction.
1. Failure to Accommodate Medical Unfitness The regulation requires agency Components to postpone or grant an exemption from a polygraph examination when an employee is determined to be medically or psychologically unfit for the procedure. This is a mandatory duty, not a discretionary choice.
2. Improper Basis for Adverse Action The regulation explicitly prohibits any unfavorable administrative action from being based solely on an unresolved CSP result. An agency cannot use an inconclusive test as the exclusive justification for an adverse personnel decision.
The central argument stemming from these violations is that they fall entirely outside the scope of Egan. Because these regulations are mandatory, they eliminate agency discretion in these specific circumstances. The Supreme Court's deference in Egan was premised on judicial inability to replicate an agency's complex, predictive assessment. That premise evaporates when the agency's conduct is governed not by prediction, but by a mandatory, binary regulatory command: either the employee is medically unfit and the test must be postponed, or they are not. Reviewing compliance with such a command requires no specialized security expertise. Where there is no discretion, there can be no "predictive national-security judgment" for a court to defer to. Insulating these plain regulatory violations from review has severe consequences for the legal rights of all federal employees.
V. RAMIFICATIONS: THE CREATION OF ANN UNREVIEWABLE ZONE OF AGENCY ACTION
The misapplication of Eganis not merely a procedural error; it is a substantive threat to the rule of law and the congressionally mandated rights of federal employees. By expanding Egan to cover ordinary personnel matters, courts are carving out a vast and dangerous zone of unreviewable agency action, where statutory and regulatory protections can be ignored with impunity.
The lower court's expansive interpretation of Egan, if permitted to stand, creates several critical threats to the federal administrative system:
• Nullification of Regulatory Commands: It renders mandatory, non-discretionary protections, such as those contained in DoDI 5210.91, entirely unenforceable. An agency can violate its own rules without fear of judicial correction.
• Circumvention of Federal Law: It grants agencies an unchecked ability to sidestep federal disability law. An agency could deny a reasonable accommodation for a medical condition by simply invoking security terminology, thereby immunizing a potentially discriminatory act from review.
• Immunization of Adverse Actions: Any adverse personnel action taken against an employee with a security clearance could be immunized from judicial scrutiny. An agency would only need to make a bare assertion of lost "trust" or "security concerns," even in the complete absence of a formal clearance adjudication.
• Erosion of the Rule of Law: Ultimately, it creates a broad and untenable "zone of unreviewability" where the fundamental statutory rights of federal employees are effectively extinguished. This outcome undermines the core principle that the government must operate within the bounds of the law.
These ramifications transform Egan from a narrow shield for predictive security judgments into a sword that agencies can wield to strike down employee rights without oversight.
VI. CONCLUSION
The expansion of Department of the Navy v. Egan beyond its narrow and intended context of formal security-clearance adjudications constitutes a significant judicial error. This overreach has created a legal landscape where the foundational principles of administrative law and the statutory rights of federal employees are placed in serious jeopardy.
This trend allows federal agencies to ignore their own binding regulations and violate federal disability laws under the amorphous guise of "national security." By accepting generic assertions of "trust" as a sufficient basis to avoid judicial review—even when no adverse clearance action has occurred—courts are abdicating their duty to ensure that agencies act within the law.
Therefore, judicial review is warranted to correct this overreach, reaffirm the clear and limited scope of Egan deference, and ensure the continued protection of the rule of law. Restoring proper judicial oversight is essential to prevent the creation of an unreviewable zone of agency power and to safeguard the rights that Congress has granted to the nation's federal workforce.
Posted by John M.
- Jan 20, 2026, 12:53 PMI was notified last week that my petition was "DISTRIBUTED for Conference of 2/20/2026."
As we approach that important date, I would like to discuss some of the legal aspects of my case.
First, is the legal distinction between polygraph screening for applicants and polygraph screening of employees.
I. STATEMENT OF THE ISSUE
A fundamental truth governs the use of polygraph examinations in federal employment: the dispositive legal issue is not the scientific validity of the instrument, but the deliberate legal distinction between its use as a pre-employment screening tool and its application to incumbent employees. This distinction is a conscious legal construct designed to balance national security needs with constitutional principles. The core issue before the Court is the preservation of this balance, which is jeopardized when an agency unlawfully erases the line separating applicants from employees.
While government agencies are afforded broad discretion in using polygraphs to gatekeep applicants for employment or security clearances, this discretion does not extend to actions taken against current employees or clearance holders. Applicants can be excluded based largely on polygraph outcomes because they lack vested legal rights. Employees, by contrast, are protected by a framework of statutory and regulatory safeguards that require due process, accountability, and substantive justification for any adverse action.
II. THE FOUNDATIONAL DISTINCTION: LEGAL RIGHTS ATTACHING UPON EMPLOYMENT
The strategic importance of the legal distinction between an individual seeking entry into a federal position and one facing deprivation of an existing one cannot be overstated. Courts have consistently recognized this as the "legal fork in the road" where the government's obligations and an individual's rights fundamentally change. Understanding this "Entry vs. Deprivation" framework is essential to a proper analysis of the lawful limits on polygraph use.
A. The Applicant Context: Non-Selection as a Gatekeeping Mechanism
An applicant for a federal job or security clearance stands on fundamentally different legal ground than an incumbent employee. Because an applicant has no vested property or liberty interest in a position they do not yet hold, an agency's decision not to proceed is legally framed as a simple "non-selection," not as a punitive or disciplinary action. This framing grants the government significant deference. At this entry stage, the polygraph functions as a risk-management device, not an adjudicative one.
The key characteristics of polygraph use at the applicant stage include:
• Purpose: It is a gatekeeping tool used for risk avoidance, allowing agencies to screen out individuals before a formal employment relationship is established.
• Legal Framing: A negative outcome results in non-selection, which is not legally considered a punishment and carries a lower burden of justification for the agency.
• Standard of Proof: The government is not required to prove deception. Courts grant heavy deference to agency decisions at this entry stage.
• Internal Terminology: Reflecting this purpose, polygraphs are considered "screening tools, not adjudicative tools."
B. The Employee Context: Deprivation Triggering Legal Safeguards
Once an individual is hired or granted a security clearance, a legal relationship exists. Any subsequent adverse action by the government is considered a "deprivation" of that established interest. This act of taking something away triggers significant legal requirements and curtails the broad discretion afforded to the agency at the applicant stage. The employee is no longer merely a candidate but a rights-bearing individual protected by a web of legal and regulatory requirements.
These safeguards fall into three primary categories:
• Statutory Protections: Employees are shielded by federal statutes that do not apply to applicants. These include the Rehabilitation Act, which may require disability accommodations; established Civil Service protections against arbitrary adverse actions; and, in certain contexts, Whistleblower laws.
• Binding Regulations: The agency itself is bound by its own regulations, which often include specific procedures and limitations on adverse actions. These can include medical deferral rules that may apply to polygraph examinations, limits on adverse reliance on non-dispositive information like polygraph results, and mandatory internal review and appeal processes.
• Judicial Scrutiny: Unlike a non-selection decision, an adverse action against an employee is subject to meaningful judicial or administrative review. Agencies must be prepared to articulate a reasoned basis for their decisions, demonstrate compliance with their own rules, and provide an explanation that goes beyond a simple dislike of a polygraph result.
This is not a semantic difference; it is the bright line where agency discretion ends, and the rule of law begins. The protections afforded to employees are not administrative hurdles but the mandatory legal consequence of a vested employment interest—a wall the agency cannot be permitted to breach.
III. THE UNLAWFUL CONFLATION: APPLYING APPLICANT LOGIC TO PROTECTED EMPLOYEES
The system breaks when an agency attempts to import the logic and broad discretion permissible in applicant screening into the highly regulated context of existing employment. This unlawful conflation is a deliberate attempt to neutralize the statutory and regulatory rights that protect incumbent employees by treating them as if they were still applicants at the front door.
Agencies execute this unlawful conflation through several distinct rhetorical and legal tactics:
• Relabeling Screening as an "Essential Job Function": This tactic re-characterizes a discretionary screening tool as a core, non-negotiable job requirement. By doing so, an agency argues that an employee who fails to "pass" a polygraph is no longer qualified for their job, thereby attempting to bypass legal protections and accommodation duties. This argument fails because it attempts to make a discretionary screening protocol legally equivalent to the substantive duties of the position itself, a conflation the law does not permit.
• Asserting Unreviewable "Trust Judgments": An agency claims that its decision is based on a subjective "trust judgment" stemming from a polygraph result. This seeks to remove the decision from judicial or administrative review by labeling it a matter of pure executive discretion—a logic appropriate for the initial selection of personnel but not for adverse actions against existing employees with vested rights. This logic is fatally flawed when applied to employees, as their statutory and regulatory protections exist precisely to subject such agency judgments to review and require they be based on a more substantial foundation than the non-dispositive output of a screening tool.
• Framing Adverse Action as a "Suitability" Issue: By using terminology associated with the initial hiring process, such as "suitability," an agency deliberately obscures the fact that a deprivation of existing employment or a security clearance is occurring. This linguistic move attempts to revert the employee back to the legal status of an applicant.
When this conflation is successful, it erases the carefully constructed distinction between applicants and employees, with severe consequences for the rule of law.
The Legal Damage of Unlawful Conflation
• It erases accommodation duties under statutes like the Rehabilitation Act, which are designed to protect employees.
• It neutralizes binding regulations that limit an agency's reliance on polygraph results and mandate specific review processes before an adverse action can be finalized.
• It expands unreviewability far beyond what is legally permitted for adverse actions against existing employees, effectively granting the agency unchecked power.
This legal error must be identified and corrected to preserve the integrity of federal employment law and the rights it confers.
IV. A PROPER FRAMEWORK FOR JUDICIAL REVIEW
Rectifying this unlawful conflation does not require judicial overreach into national security. Rather, it is a straightforward exercise in enforcing the legal boundaries Congress and the Executive Branch have already established. The argument presented here does not ask the Court to invalidate security screening, but to enforce the legal distinction between screening applicants and taking action against employees.
The Court can comfortably adopt a restrained, institutional ruling by affirming three established principles:
1. The Court is not being asked to second-guess security screening itself.
2. The Court is being asked to enforce the line Congress and the Executive already drew between the treatment of applicants and the rights of employees.
3. The Court would be affirming that agencies may screen aggressively at the entry stage but must follow the law once employment rights and legal protections have attached.
This framework provides a clear path for correcting a legal error while respecting the separation of powers and an agency's valid interest in maintaining a trusted workforce.
V. CONCLUSION
The fundamental legal distinction between applicants and employees is not an accident of administrative law; it is an intentional product of statutes and regulations designed to protect vested rights from arbitrary deprivation. The government is afforded wide latitude to use polygraphs as a screening tool at its "front door" precisely because applicants have not yet acquired these rights. However, once an individual is inside the system as an employee or clearance holder, that latitude recedes, and the government becomes constrained by due process, statutory duties, and its own binding rules. Any attempt by an agency to erase this distinction by applying applicant-level logic to an employee represents a clear legal error that undermines this foundational structure.
Polygraphs are tolerated as gatekeeping tools precisely because applicants lack legal protections—but once employment or clearance exists, the law requires safeguards, accommodations, and enforceable limits on reliance.
As we approach that important date, I would like to discuss some of the legal aspects of my case.
First, is the legal distinction between polygraph screening for applicants and polygraph screening of employees.
I. STATEMENT OF THE ISSUE
A fundamental truth governs the use of polygraph examinations in federal employment: the dispositive legal issue is not the scientific validity of the instrument, but the deliberate legal distinction between its use as a pre-employment screening tool and its application to incumbent employees. This distinction is a conscious legal construct designed to balance national security needs with constitutional principles. The core issue before the Court is the preservation of this balance, which is jeopardized when an agency unlawfully erases the line separating applicants from employees.
While government agencies are afforded broad discretion in using polygraphs to gatekeep applicants for employment or security clearances, this discretion does not extend to actions taken against current employees or clearance holders. Applicants can be excluded based largely on polygraph outcomes because they lack vested legal rights. Employees, by contrast, are protected by a framework of statutory and regulatory safeguards that require due process, accountability, and substantive justification for any adverse action.
II. THE FOUNDATIONAL DISTINCTION: LEGAL RIGHTS ATTACHING UPON EMPLOYMENT
The strategic importance of the legal distinction between an individual seeking entry into a federal position and one facing deprivation of an existing one cannot be overstated. Courts have consistently recognized this as the "legal fork in the road" where the government's obligations and an individual's rights fundamentally change. Understanding this "Entry vs. Deprivation" framework is essential to a proper analysis of the lawful limits on polygraph use.
A. The Applicant Context: Non-Selection as a Gatekeeping Mechanism
An applicant for a federal job or security clearance stands on fundamentally different legal ground than an incumbent employee. Because an applicant has no vested property or liberty interest in a position they do not yet hold, an agency's decision not to proceed is legally framed as a simple "non-selection," not as a punitive or disciplinary action. This framing grants the government significant deference. At this entry stage, the polygraph functions as a risk-management device, not an adjudicative one.
The key characteristics of polygraph use at the applicant stage include:
• Purpose: It is a gatekeeping tool used for risk avoidance, allowing agencies to screen out individuals before a formal employment relationship is established.
• Legal Framing: A negative outcome results in non-selection, which is not legally considered a punishment and carries a lower burden of justification for the agency.
• Standard of Proof: The government is not required to prove deception. Courts grant heavy deference to agency decisions at this entry stage.
• Internal Terminology: Reflecting this purpose, polygraphs are considered "screening tools, not adjudicative tools."
B. The Employee Context: Deprivation Triggering Legal Safeguards
Once an individual is hired or granted a security clearance, a legal relationship exists. Any subsequent adverse action by the government is considered a "deprivation" of that established interest. This act of taking something away triggers significant legal requirements and curtails the broad discretion afforded to the agency at the applicant stage. The employee is no longer merely a candidate but a rights-bearing individual protected by a web of legal and regulatory requirements.
These safeguards fall into three primary categories:
• Statutory Protections: Employees are shielded by federal statutes that do not apply to applicants. These include the Rehabilitation Act, which may require disability accommodations; established Civil Service protections against arbitrary adverse actions; and, in certain contexts, Whistleblower laws.
• Binding Regulations: The agency itself is bound by its own regulations, which often include specific procedures and limitations on adverse actions. These can include medical deferral rules that may apply to polygraph examinations, limits on adverse reliance on non-dispositive information like polygraph results, and mandatory internal review and appeal processes.
• Judicial Scrutiny: Unlike a non-selection decision, an adverse action against an employee is subject to meaningful judicial or administrative review. Agencies must be prepared to articulate a reasoned basis for their decisions, demonstrate compliance with their own rules, and provide an explanation that goes beyond a simple dislike of a polygraph result.
This is not a semantic difference; it is the bright line where agency discretion ends, and the rule of law begins. The protections afforded to employees are not administrative hurdles but the mandatory legal consequence of a vested employment interest—a wall the agency cannot be permitted to breach.
III. THE UNLAWFUL CONFLATION: APPLYING APPLICANT LOGIC TO PROTECTED EMPLOYEES
The system breaks when an agency attempts to import the logic and broad discretion permissible in applicant screening into the highly regulated context of existing employment. This unlawful conflation is a deliberate attempt to neutralize the statutory and regulatory rights that protect incumbent employees by treating them as if they were still applicants at the front door.
Agencies execute this unlawful conflation through several distinct rhetorical and legal tactics:
• Relabeling Screening as an "Essential Job Function": This tactic re-characterizes a discretionary screening tool as a core, non-negotiable job requirement. By doing so, an agency argues that an employee who fails to "pass" a polygraph is no longer qualified for their job, thereby attempting to bypass legal protections and accommodation duties. This argument fails because it attempts to make a discretionary screening protocol legally equivalent to the substantive duties of the position itself, a conflation the law does not permit.
• Asserting Unreviewable "Trust Judgments": An agency claims that its decision is based on a subjective "trust judgment" stemming from a polygraph result. This seeks to remove the decision from judicial or administrative review by labeling it a matter of pure executive discretion—a logic appropriate for the initial selection of personnel but not for adverse actions against existing employees with vested rights. This logic is fatally flawed when applied to employees, as their statutory and regulatory protections exist precisely to subject such agency judgments to review and require they be based on a more substantial foundation than the non-dispositive output of a screening tool.
• Framing Adverse Action as a "Suitability" Issue: By using terminology associated with the initial hiring process, such as "suitability," an agency deliberately obscures the fact that a deprivation of existing employment or a security clearance is occurring. This linguistic move attempts to revert the employee back to the legal status of an applicant.
When this conflation is successful, it erases the carefully constructed distinction between applicants and employees, with severe consequences for the rule of law.
The Legal Damage of Unlawful Conflation
• It erases accommodation duties under statutes like the Rehabilitation Act, which are designed to protect employees.
• It neutralizes binding regulations that limit an agency's reliance on polygraph results and mandate specific review processes before an adverse action can be finalized.
• It expands unreviewability far beyond what is legally permitted for adverse actions against existing employees, effectively granting the agency unchecked power.
This legal error must be identified and corrected to preserve the integrity of federal employment law and the rights it confers.
IV. A PROPER FRAMEWORK FOR JUDICIAL REVIEW
Rectifying this unlawful conflation does not require judicial overreach into national security. Rather, it is a straightforward exercise in enforcing the legal boundaries Congress and the Executive Branch have already established. The argument presented here does not ask the Court to invalidate security screening, but to enforce the legal distinction between screening applicants and taking action against employees.
The Court can comfortably adopt a restrained, institutional ruling by affirming three established principles:
1. The Court is not being asked to second-guess security screening itself.
2. The Court is being asked to enforce the line Congress and the Executive already drew between the treatment of applicants and the rights of employees.
3. The Court would be affirming that agencies may screen aggressively at the entry stage but must follow the law once employment rights and legal protections have attached.
This framework provides a clear path for correcting a legal error while respecting the separation of powers and an agency's valid interest in maintaining a trusted workforce.
V. CONCLUSION
The fundamental legal distinction between applicants and employees is not an accident of administrative law; it is an intentional product of statutes and regulations designed to protect vested rights from arbitrary deprivation. The government is afforded wide latitude to use polygraphs as a screening tool at its "front door" precisely because applicants have not yet acquired these rights. However, once an individual is inside the system as an employee or clearance holder, that latitude recedes, and the government becomes constrained by due process, statutory duties, and its own binding rules. Any attempt by an agency to erase this distinction by applying applicant-level logic to an employee represents a clear legal error that undermines this foundational structure.
Polygraphs are tolerated as gatekeeping tools precisely because applicants lack legal protections—but once employment or clearance exists, the law requires safeguards, accommodations, and enforceable limits on reliance.
Posted by John M.
- Jan 06, 2026, 02:06 PM4. Whether an agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. §1630.2(o)(3) may nevertheless be deemed to have acted lawfully under the Rehabilitation Act when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
A federal agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. § 1630.2(o)(3) (incorporated into the Rehabilitation Act via EEOC regulations) may not be deemed to have acted lawfully, particularly when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
Core Obligations Under the Rehabilitation Act and EEOC Regulations.
The Rehabilitation Act (Section 501) adopts the standards of the Americans with Disabilities Act (ADA), requiring federal agencies to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause undue hardship. A key component is the interactive process: an informal, good-faith dialogue between the agency and the employee to identify effective accommodations (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, as applied to the Rehabilitation Act).
• Categorical refusal to consider accommodations or engage interactively is a per se violation. The EEOC has repeatedly held that failing to participate in the interactive process—e.g., ignoring requests, denying without exploration, or blanket policies against certain accommodations—constitutes discrimination, even if an accommodation might ultimately cause undue hardship.
• Agencies must respond expeditiously and in good faith. An outright refusal breaks the process and violates the Act.
Impact of Flawed Justifications
• Shifting justifications: Inconsistent or changing reasons for denial (e.g., initially citing one policy, later another) raise an inference of pretext (EEOC Enforcement Guidance on Retaliation and Related Issues, applicable here via overlapping standards). This undermines claims of legitimate nondiscriminatory reasons, such as undue hardship or business necessity.
• Medically unsupported reasons: Denials must be based on individualized assessments, often requiring medical documentation review. Unsupported assertions (e.g., ignoring provided medical evidence or relying on unsubstantiated assumptions about a condition) fail to meet the interactive process requirement and may evidence bad faith or discrimination.
• Contrary to binding regulations: Federal agencies must follow their own mandatory internal rules (e.g., DoD instructions or agency-specific procedures under Executive Order 13164). Disregarding them in accommodation decisions supports findings of arbitrary action or violation of the Act, as procedural noncompliance is reviewable even in sensitive contexts.
Practical and Legal Outcomes
The EEOC and courts view such conduct as evidence of failure to accommodate, potentially leading to liability. Good-faith engagement is required; categorical policies or flawed rationales do not shield agencies. National security or undue hardship defenses must be substantiated individually, not applied blanketly.
In summary, categorical refusal combined with shifting, unsupported, or regulation-contrary justifications strongly indicates unlawful conduct under the Rehabilitation Act. Employees can challenge this via the agency's EEO process or EEOC.
A federal agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. § 1630.2(o)(3) (incorporated into the Rehabilitation Act via EEOC regulations) may not be deemed to have acted lawfully, particularly when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
Core Obligations Under the Rehabilitation Act and EEOC Regulations.
The Rehabilitation Act (Section 501) adopts the standards of the Americans with Disabilities Act (ADA), requiring federal agencies to provide reasonable accommodations to qualified individuals with disabilities unless doing so would cause undue hardship. A key component is the interactive process: an informal, good-faith dialogue between the agency and the employee to identify effective accommodations (EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA, as applied to the Rehabilitation Act).
• Categorical refusal to consider accommodations or engage interactively is a per se violation. The EEOC has repeatedly held that failing to participate in the interactive process—e.g., ignoring requests, denying without exploration, or blanket policies against certain accommodations—constitutes discrimination, even if an accommodation might ultimately cause undue hardship.
• Agencies must respond expeditiously and in good faith. An outright refusal breaks the process and violates the Act.
Impact of Flawed Justifications
• Shifting justifications: Inconsistent or changing reasons for denial (e.g., initially citing one policy, later another) raise an inference of pretext (EEOC Enforcement Guidance on Retaliation and Related Issues, applicable here via overlapping standards). This undermines claims of legitimate nondiscriminatory reasons, such as undue hardship or business necessity.
• Medically unsupported reasons: Denials must be based on individualized assessments, often requiring medical documentation review. Unsupported assertions (e.g., ignoring provided medical evidence or relying on unsubstantiated assumptions about a condition) fail to meet the interactive process requirement and may evidence bad faith or discrimination.
• Contrary to binding regulations: Federal agencies must follow their own mandatory internal rules (e.g., DoD instructions or agency-specific procedures under Executive Order 13164). Disregarding them in accommodation decisions supports findings of arbitrary action or violation of the Act, as procedural noncompliance is reviewable even in sensitive contexts.
Practical and Legal Outcomes
The EEOC and courts view such conduct as evidence of failure to accommodate, potentially leading to liability. Good-faith engagement is required; categorical policies or flawed rationales do not shield agencies. National security or undue hardship defenses must be substantiated individually, not applied blanketly.
In summary, categorical refusal combined with shifting, unsupported, or regulation-contrary justifications strongly indicates unlawful conduct under the Rehabilitation Act. Employees can challenge this via the agency's EEO process or EEOC.
Posted by John M.
- Jan 06, 2026, 02:02 PM3. Whether courts may extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond clearance adjudications to cover ordinary personnel and medical accommodation decisions, effectively placing federal employees' statutory rights outside judicial review even when no security clearance has been suspended, revoked, or unfavorably adjudicated.
Courts generally may not broadly extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond the merits of security clearance adjudications (grants, denials, or revocations) to shield ordinary personnel actions or medical/reasonable accommodation decisions from judicial review under the Rehabilitation Act, particularly where no clearance has been suspended, revoked, or unfavorably adjudicated.
Core Scope of Egan
Egan held that the Merit Systems Protection Board (and by extension, courts) lacks authority to review the substantive merits of a security clearance determination absent clear congressional authorization. This stems from the President's constitutional authority over national security and the predictive nature of clearance judgments (e.g., trustworthiness and risk assessment). Courts extend this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) only if resolving them requires second-guessing the executive's predictive security judgment (e.g., cases like Ryan v. Reno (D.C. Cir. 1999) and recent reaffirmations in Lee v. Garland (D.C. Cir. 2024)).
However, Egan is narrow:
• It does not create absolute immunity for all security-related actions.
• Lower courts consistently refuse to extend it to non-clearance decisions or procedural/discrimination challenges that do not probe the merits of a clearance adjudication.
Application to Ordinary Personnel and Accommodation Decisions
• No extension to reasonable accommodation claims: Where an action involves failure to accommodate a disability (e.g., alternative screening, reassignment, or waivers) without involving a formal clearance revocation/denial, courts review Rehabilitation Act claims. For instance, in Sanchez v. U.S. Dep't of Energy (10th Cir. 2018), the court reviewed a failure-to-accommodate claim despite security concerns, distinguishing it from Egan's bar on clearance merits.
• Personnel actions not tied to clearance adjudication: Courts review discrimination or accommodation claims in security-sensitive roles if they target procedural violations, interactive process failures, or pretext, without requiring review of a predictive clearance judgment (e.g., challenges to reassignment denials or medical deferrals).
• No clearance action involved: If no clearance has been adversely adjudicated (e.g., polygraph unsuitability leading to accommodation denial without revocation), Egan does not apply. Courts reject broad invocations to evade statutory duties under the Rehabilitation Act, which requires interactive engagement and accommodations unless undue hardship (including legitimate security risks) is proven.
Limits and Exceptions
• National security can justify "undue hardship" denials of accommodation, and courts defer to agency judgments on risks.
• If a claim inescapably requires evaluating why a clearance was (or would be) denied/revoked, Egan bars review—even for constitutional or discrimination allegations in some circuits.
• Procedural compliance (e.g., following internal rules) remains reviewable.
In summary, Egan protects the executive's core discretion over clearance merits but does not blanket ordinary personnel or accommodation decisions—especially absent any clearance adjudication—from Rehabilitation Act scrutiny. Courts police overextensions to preserve statutory rights.
Courts generally may not broadly extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond the merits of security clearance adjudications (grants, denials, or revocations) to shield ordinary personnel actions or medical/reasonable accommodation decisions from judicial review under the Rehabilitation Act, particularly where no clearance has been suspended, revoked, or unfavorably adjudicated.
Core Scope of Egan
Egan held that the Merit Systems Protection Board (and by extension, courts) lacks authority to review the substantive merits of a security clearance determination absent clear congressional authorization. This stems from the President's constitutional authority over national security and the predictive nature of clearance judgments (e.g., trustworthiness and risk assessment). Courts extend this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) only if resolving them requires second-guessing the executive's predictive security judgment (e.g., cases like Ryan v. Reno (D.C. Cir. 1999) and recent reaffirmations in Lee v. Garland (D.C. Cir. 2024)).
However, Egan is narrow:
• It does not create absolute immunity for all security-related actions.
• Lower courts consistently refuse to extend it to non-clearance decisions or procedural/discrimination challenges that do not probe the merits of a clearance adjudication.
Application to Ordinary Personnel and Accommodation Decisions
• No extension to reasonable accommodation claims: Where an action involves failure to accommodate a disability (e.g., alternative screening, reassignment, or waivers) without involving a formal clearance revocation/denial, courts review Rehabilitation Act claims. For instance, in Sanchez v. U.S. Dep't of Energy (10th Cir. 2018), the court reviewed a failure-to-accommodate claim despite security concerns, distinguishing it from Egan's bar on clearance merits.
• Personnel actions not tied to clearance adjudication: Courts review discrimination or accommodation claims in security-sensitive roles if they target procedural violations, interactive process failures, or pretext, without requiring review of a predictive clearance judgment (e.g., challenges to reassignment denials or medical deferrals).
• No clearance action involved: If no clearance has been adversely adjudicated (e.g., polygraph unsuitability leading to accommodation denial without revocation), Egan does not apply. Courts reject broad invocations to evade statutory duties under the Rehabilitation Act, which requires interactive engagement and accommodations unless undue hardship (including legitimate security risks) is proven.
Limits and Exceptions
• National security can justify "undue hardship" denials of accommodation, and courts defer to agency judgments on risks.
• If a claim inescapably requires evaluating why a clearance was (or would be) denied/revoked, Egan bars review—even for constitutional or discrimination allegations in some circuits.
• Procedural compliance (e.g., following internal rules) remains reviewable.
In summary, Egan protects the executive's core discretion over clearance merits but does not blanket ordinary personnel or accommodation decisions—especially absent any clearance adjudication—from Rehabilitation Act scrutiny. Courts police overextensions to preserve statutory rights.
Posted by John M.
- Jan 06, 2026, 02:00 PM2. Whether mandatory Department of Defense regulations, including DoDI 5210.91—which (a) prohibit adverse administrative action based solely on an unresolved polygraph result and (b) require medical deferral or exemption for individuals who are psychologically or medically unsuited for testing—are judicially enforceable under the Rehabilitation Act, or instead may be disregarded under a theory of unreviewable "security discretion."
Mandatory Department of Defense (DoD) regulations in DoDI 5210.91 (Polygraph and Credibility Assessment Procedures) are generally judicially enforceable in the context of a Rehabilitation Act claim, and agencies may not disregard them under a broad theory of unreviewable "security discretion."
Core Holding from Department of the Navy v. Egan (1988)
The Supreme Court in Egan held that merits of security clearance decisions—including grants, denials, or revocations—are committed to executive discretion and generally not subject to judicial review. This protects predictive judgments about risks to national security. Courts have extended this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) when resolution requires second-guessing the substance of a clearance decision (e.g., recent cases like Lee v. DOJ (D.C. Cir. 2024), where revocation after failed polygraphs barred review of discrimination claims).
However, Egan does not create absolute immunity for all security-related actions. Courts may review claims alleging that an agency violated its own mandatory procedures or statutory obligations, particularly where the challenge targets procedural compliance rather than the predictive security judgment.
Application to DoDI 5210.91 Provisions
DoDI 5210.91 establishes binding procedures for DoD polygraph programs, including:
• Prohibition on adverse action based solely on unresolved polygraph results — Agencies must have additional supporting evidence or resolution before acting.
• Requirement for medical deferral or exemption — Examiners must postpone or exempt individuals deemed psychologically or medically unsuitable (e.g., conditions affecting physiological responses), often involving evaluation by medical authorities.
These are mandatory internal rules ("shall" language in the instruction), not discretionary guidelines.
In a Rehabilitation Act context:
• If an agency ignores these provisions—e.g., taking adverse action solely on an inconclusive polygraph or refusing a required medical deferral/exemption for a documented disability—an employee can argue this violates the duty to engage in the interactive process or provide reasonable accommodation (e.g., alternative assessment methods, waiver, or reassignment).
• Such a claim challenges procedural noncompliance with DoD's own binding regulations, not the merits of whether the employee poses a security risk.
• Courts and the EEOC routinely review whether agencies followed their own rules in discrimination cases, even in security-sensitive contexts, as long as the inquiry does not probe the substantive clearance judgment.
Limits of "Unreviewable Security Discretion"
Agencies cannot invoke "security discretion" to disregard mandatory regulations. While broad deference applies to ultimate clearance outcomes, procedural violations tied to anti-discrimination laws remain reviewable (e.g., via EEOC federal sector process or limited judicial review under the Administrative Procedure Act for arbitrary/capricious action). National security can justify "undue hardship" denials of accommodation, but it does not shield outright noncompliance with DoDI 5210.91.
Practical Outcomes
• No reported cases directly litigate these exact DoDI provisions under the Rehabilitation Act, but analogous challenges (e.g., failure to follow security regulations in discrimination claims) have proceeded past motions to dismiss where framed procedurally.
• Employees can raise noncompliance in EEO complaints, arguing it evidences failure to accommodate or pretext.
In summary, while security clearance merits are largely unreviewable, mandatory procedural protections in DoDI 5210.91 are enforceable in Rehabilitation Act claims challenging agency disregard of those rules. Outcomes turn on case specifics, such as how the polygraph interacts with the disability and job requirements.
Mandatory Department of Defense (DoD) regulations in DoDI 5210.91 (Polygraph and Credibility Assessment Procedures) are generally judicially enforceable in the context of a Rehabilitation Act claim, and agencies may not disregard them under a broad theory of unreviewable "security discretion."
Core Holding from Department of the Navy v. Egan (1988)
The Supreme Court in Egan held that merits of security clearance decisions—including grants, denials, or revocations—are committed to executive discretion and generally not subject to judicial review. This protects predictive judgments about risks to national security. Courts have extended this to bar review of discrimination claims (including under Title VII or the Rehabilitation Act) when resolution requires second-guessing the substance of a clearance decision (e.g., recent cases like Lee v. DOJ (D.C. Cir. 2024), where revocation after failed polygraphs barred review of discrimination claims).
However, Egan does not create absolute immunity for all security-related actions. Courts may review claims alleging that an agency violated its own mandatory procedures or statutory obligations, particularly where the challenge targets procedural compliance rather than the predictive security judgment.
Application to DoDI 5210.91 Provisions
DoDI 5210.91 establishes binding procedures for DoD polygraph programs, including:
• Prohibition on adverse action based solely on unresolved polygraph results — Agencies must have additional supporting evidence or resolution before acting.
• Requirement for medical deferral or exemption — Examiners must postpone or exempt individuals deemed psychologically or medically unsuitable (e.g., conditions affecting physiological responses), often involving evaluation by medical authorities.
These are mandatory internal rules ("shall" language in the instruction), not discretionary guidelines.
In a Rehabilitation Act context:
• If an agency ignores these provisions—e.g., taking adverse action solely on an inconclusive polygraph or refusing a required medical deferral/exemption for a documented disability—an employee can argue this violates the duty to engage in the interactive process or provide reasonable accommodation (e.g., alternative assessment methods, waiver, or reassignment).
• Such a claim challenges procedural noncompliance with DoD's own binding regulations, not the merits of whether the employee poses a security risk.
• Courts and the EEOC routinely review whether agencies followed their own rules in discrimination cases, even in security-sensitive contexts, as long as the inquiry does not probe the substantive clearance judgment.
Limits of "Unreviewable Security Discretion"
Agencies cannot invoke "security discretion" to disregard mandatory regulations. While broad deference applies to ultimate clearance outcomes, procedural violations tied to anti-discrimination laws remain reviewable (e.g., via EEOC federal sector process or limited judicial review under the Administrative Procedure Act for arbitrary/capricious action). National security can justify "undue hardship" denials of accommodation, but it does not shield outright noncompliance with DoDI 5210.91.
Practical Outcomes
• No reported cases directly litigate these exact DoDI provisions under the Rehabilitation Act, but analogous challenges (e.g., failure to follow security regulations in discrimination claims) have proceeded past motions to dismiss where framed procedurally.
• Employees can raise noncompliance in EEO complaints, arguing it evidences failure to accommodate or pretext.
In summary, while security clearance merits are largely unreviewable, mandatory procedural protections in DoDI 5210.91 are enforceable in Rehabilitation Act claims challenging agency disregard of those rules. Outcomes turn on case specifics, such as how the polygraph interacts with the disability and job requirements.
Posted by John M.
- Jan 06, 2026, 01:56 PMI posed the four questions presented in my case to Grok, and this is what it came up with -
1. Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function," thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.
A federal agency generally may not redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function" solely to eliminate the duty to provide reasonable accommodation under the Rehabilitation Act of 1973 (Section 501) and EEOC regulations.
Key Principles Under the Rehabilitation Act and EEOC Guidance
The Rehabilitation Act prohibits federal agencies from discriminating against qualified individuals with disabilities and requires them to provide reasonable accommodations unless doing so would cause undue hardship. A "qualified individual" is one who can perform the essential functions of the job with or without reasonable accommodation (29 C.F.R. § 1630.2(m), incorporated into federal sector rules).
Essential functions are the fundamental duties of the position, not marginal ones. Factors for determining them include:
• The employer's judgment
• Written job descriptions
• Time spent performing the function
• Consequences of not requiring it
Courts and the EEOC defer to employer judgments on essential functions but scrutinize attempts to manipulate them to avoid accommodation obligations.
Application to Security Requirements Like CSP
Positions requiring access to classified information (e.g., in intelligence or defense agencies) often mandate security clearances, which include polygraph screenings like CSP for counterintelligence purposes. Holding or obtaining such a clearance is frequently considered a qualification standard or essential eligibility requirement for the role.
However:
• Agencies cannot arbitrarily relabel a screening requirement as "essential" to bypass the interactive process for reasonable accommodation.
• If a documented medical condition (e.g., certain anxiety disorders, heart conditions, or other impairments that affect physiological responses) renders an employee unsuitable for polygraph testing, the agency must explore accommodations—such as alternative screening methods, reassignment to a non-sensitive position, or waivers—if they would enable the individual to perform the job's core duties without undue hardship.
EEOC guidance emphasizes that medical examinations (including those that may interact with disabilities) must be job-related and consistent with business necessity. Polygraphs are not classified as medical examinations under the ADA/Rehabilitation Act, but if a disability prevents successful completion, the agency cannot simply declare the test itself "essential" without justification tied to the position's fundamental duties.
Relevant Considerations and Limitations
• National security exception: In roles involving sensitive classified information, courts often uphold denial of accommodations that compromise security (e.g., waiving a clearance requirement could pose a direct threat or fundamental alteration). Undue hardship in the federal context can include risks to national security.
• No direct precedent on CSP: There are no widely reported court cases specifically addressing CSP polygraphs and reasonable accommodation claims under the Rehabilitation Act. Analogous cases involving security clearances (e.g., Kaplan v. Northrop Grumman Corp. or EEOC v. Exxon) treat clearance as an essential requirement where core job duties involve protected information.
• Employee options: If denied accommodation, an employee may challenge the designation via the EEOC federal sector process, arguing the agency failed to engage interactively or that the polygraph is not truly essential.
In summary, while agencies have broad discretion to define essential functions—especially for security-sensitive roles—they cannot redefine requirements merely to evade accommodation duties. The determination must be based on legitimate job needs, and the interactive process is required. For specific situations, consult an attorney or file with the agency's EEO office/EEOC, as outcomes depend on case facts, job description, and agency mission.
1. Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function," thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.
A federal agency generally may not redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function" solely to eliminate the duty to provide reasonable accommodation under the Rehabilitation Act of 1973 (Section 501) and EEOC regulations.
Key Principles Under the Rehabilitation Act and EEOC Guidance
The Rehabilitation Act prohibits federal agencies from discriminating against qualified individuals with disabilities and requires them to provide reasonable accommodations unless doing so would cause undue hardship. A "qualified individual" is one who can perform the essential functions of the job with or without reasonable accommodation (29 C.F.R. § 1630.2(m), incorporated into federal sector rules).
Essential functions are the fundamental duties of the position, not marginal ones. Factors for determining them include:
• The employer's judgment
• Written job descriptions
• Time spent performing the function
• Consequences of not requiring it
Courts and the EEOC defer to employer judgments on essential functions but scrutinize attempts to manipulate them to avoid accommodation obligations.
Application to Security Requirements Like CSP
Positions requiring access to classified information (e.g., in intelligence or defense agencies) often mandate security clearances, which include polygraph screenings like CSP for counterintelligence purposes. Holding or obtaining such a clearance is frequently considered a qualification standard or essential eligibility requirement for the role.
However:
• Agencies cannot arbitrarily relabel a screening requirement as "essential" to bypass the interactive process for reasonable accommodation.
• If a documented medical condition (e.g., certain anxiety disorders, heart conditions, or other impairments that affect physiological responses) renders an employee unsuitable for polygraph testing, the agency must explore accommodations—such as alternative screening methods, reassignment to a non-sensitive position, or waivers—if they would enable the individual to perform the job's core duties without undue hardship.
EEOC guidance emphasizes that medical examinations (including those that may interact with disabilities) must be job-related and consistent with business necessity. Polygraphs are not classified as medical examinations under the ADA/Rehabilitation Act, but if a disability prevents successful completion, the agency cannot simply declare the test itself "essential" without justification tied to the position's fundamental duties.
Relevant Considerations and Limitations
• National security exception: In roles involving sensitive classified information, courts often uphold denial of accommodations that compromise security (e.g., waiving a clearance requirement could pose a direct threat or fundamental alteration). Undue hardship in the federal context can include risks to national security.
• No direct precedent on CSP: There are no widely reported court cases specifically addressing CSP polygraphs and reasonable accommodation claims under the Rehabilitation Act. Analogous cases involving security clearances (e.g., Kaplan v. Northrop Grumman Corp. or EEOC v. Exxon) treat clearance as an essential requirement where core job duties involve protected information.
• Employee options: If denied accommodation, an employee may challenge the designation via the EEOC federal sector process, arguing the agency failed to engage interactively or that the polygraph is not truly essential.
In summary, while agencies have broad discretion to define essential functions—especially for security-sensitive roles—they cannot redefine requirements merely to evade accommodation duties. The determination must be based on legitimate job needs, and the interactive process is required. For specific situations, consult an attorney or file with the agency's EEO office/EEOC, as outcomes depend on case facts, job description, and agency mission.
Posted by John M.
- Dec 30, 2025, 11:59 AMYou may access the Petition and Appendix on the Court's website here:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/25-737.html
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/25-737.html
Posted by John M.
- Dec 22, 2025, 03:05 PMToday, my petition for a writ of certiorari was docketed in the US Supreme Court. #25-737.
I'm representing myself, and I'm hoping that anyone with relevant expertise — psychologists, researchers, clinicians, attorneys, or scholars — might consider whether these issues warrant independent amicus (friend-of-the-court) support. Any such involvement would be entirely voluntary and independent, and focused on the broader legal and scientific issues rather than my personal situation.
The Questions Presented are:
1. Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function," thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.
2. Whether mandatory Department of Defense regulations, including DoDI 5210.91—which (a) prohibit adverse administrative action based solely on an unresolved polygraph result and (b) require medical deferral or exemption for individuals who are psychologically or medically unsuited for testing—are judicially enforceable under the Rehabilitation Act, or instead may be disregarded under a theory of unreviewable "security discretion." (App. F)
3. Whether courts may extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond clearance adjudications to cover ordinary personnel and medical accommodation decisions, effectively placing federal employees' statutory rights outside judicial review even when no security clearance has been suspended, revoked, or unfavorably adjudicated.
4. Whether an agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. §1630.2(o)(3) may nevertheless be deemed to have acted lawfully under the Rehabilitation Act when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
If you're interested, or would like more information, I am also available on Signal at sammorter.11
I'm representing myself, and I'm hoping that anyone with relevant expertise — psychologists, researchers, clinicians, attorneys, or scholars — might consider whether these issues warrant independent amicus (friend-of-the-court) support. Any such involvement would be entirely voluntary and independent, and focused on the broader legal and scientific issues rather than my personal situation.
The Questions Presented are:
1. Whether a federal agency may, consistent with the Rehabilitation Act of 1973 and EEOC regulations, redefine a security screening requirement—such as a counterintelligence scope polygraph (CSP) examination—as an "essential job function," thereby eliminating the duty to provide reasonable accommodation to employees whose documented medical conditions render them unsuitable for such testing.
2. Whether mandatory Department of Defense regulations, including DoDI 5210.91—which (a) prohibit adverse administrative action based solely on an unresolved polygraph result and (b) require medical deferral or exemption for individuals who are psychologically or medically unsuited for testing—are judicially enforceable under the Rehabilitation Act, or instead may be disregarded under a theory of unreviewable "security discretion." (App. F)
3. Whether courts may extend Department of the Navy v. Egan, 484 U.S. 518 (1988), beyond clearance adjudications to cover ordinary personnel and medical accommodation decisions, effectively placing federal employees' statutory rights outside judicial review even when no security clearance has been suspended, revoked, or unfavorably adjudicated.
4. Whether an agency that categorically refuses to consider disability-based accommodations or to engage in the interactive process required by 29 C.F.R. §1630.2(o)(3) may nevertheless be deemed to have acted lawfully under the Rehabilitation Act when its justifications are shifting, medically unsupported, and contrary to its own binding regulations.
If you're interested, or would like more information, I am also available on Signal at sammorter.11
Posted by Pierre from Canada
- Aug 11, 2025, 12:40 PMQuote from: quickfix on Jul 25, 2025, 11:01 AMJohn M, you lose again. Another victory in the fight against insider threats.
Has anyone heard from John M. for his take? Would like to hear his thoughts.
Posted by Pierre from Canada
- Aug 11, 2025, 12:39 PMQuote from: quickfix on Jul 25, 2025, 11:01 AMJohn M, you lose again. Another victory in the fight against insider threats.
Code Select
Has anyone herd from John M. for his take? Would like to hear his thoughts.
Posted by George W. Maschke
- Jul 26, 2025, 11:09 AMThank you. I haven't heard of such a waiver ever being granted in any federal agency. I'm not sure such a requirement can't be waived. I would expect that the heads of most agencies with a polygraph requirement would have the authority to grant a waiver. But as a practical matter, it seems that it never (or at most very rarely, and without public notice) happens.
Posted by quickfix
- Jul 26, 2025, 11:02 AMNever. In my almost 40-year polygraph career with 3 different DOD polygraph agencies, I have never seen or heard of it happening. We have had individuals with a legitimate medical reason for not being suitable for testing, and they are simply not granted the access, removed from access (as John Morter was) or not hired. It is simply a myth that a polygraph requirement can be "waived".