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JOHN DOE #6 et al.,                                               *


            Plaintiffs                                               *


            v.                                                         *            Civil Action No. 00-2440 (EGS)


FEDERAL BUREAU OF                         *         

INVESTIGATION et al.,                                 *


Defendants                                          *

*          *            *            *            *            *            *            *            *            *            *            *



      The plaintiffs, all victimized applicants for federal employment with the defendants, do not challenge or question the District Court’s discretion and authority to control the ability of parties to conduct discovery. See Memorandum of Points and Authorities in Reply to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss Complaint and in Opposition to Plaintiffs’ Motion for Discovery at 29-30 (filed April 11, 2001)(“Defs’ Memo”). However, in responding to the plaintiffs’ Cross-Motion, the defendants have ignored the substance of the plaintiffs’ allegations and arguments under the Administrative Procedure Act, the Constitution and relevant regulations and policies of the defendants.

      The plaintiffs have identified numerous legal issues and facts underlying their arguments, as well as case law, that demonstrates the uncontroverted need for discovery at this early stage of the litigation.


      The defendants attempt to distinguish the cases noted by the plaintiffs as supporting their request for discovery. See Defs’ Memo at 27-29. For example, they challenge the plaintiffs’ reliance on Anderson v. City of Philadelphia, 668 F.Supp. 441 (E.D.Pa. 1987), rev’d 845 F.2d 1216 (3d Cir. 1988), by stating that the “issues at trial, however, revolved around the reliability of polygraph tests in general, and whether the results of the polygraph tests were the sole grounds for denying employment.” See Defs’ Memo at 27. This assertion raises several issues that should be of concern to this Court.

      First, the reliability of polygraph examinations are indeed at issue in this case. In crafting their legal claims, the plaintiffs set forth several pages of assertions regarding the unreliability of the polygraph, and the problems caused by the defendants’ reliance upon it. See Complaint at ¶¶21-36 (filed October 11, 2000)(“Complaint”). This was an issue that was discussed by both the District Court and Third Circuit Court of Appeals in Anderson. It may well be that information regarding the polygraph and its reliability have been further refined since Anderson was decided back in 1988, but before this Court should consider dismissing the plaintiffs’ claims based on a motion from the defendants, the plaintiffs should have an opportunity to bring this to light.[1]

      Second, the defendants assert discovery is not in order because they “have stated that for the purposes of their motion the Court may assume that the results of the polygraph tests were the sole grounds for the denial of employment.” See Defs’ Memo at 27. The plaintiffs, of course, have set forth claims that the defendants have violated their own internal regulations and policies. Id. at 29. These allegations in some way implicate all of the plaintiffs’ claim involving the Constitution, statutes, regulations and/or internal policies. Yet, these internal regulations and policies of the defendants are inaccessible to
the plaintiffs or this Court. How could discovery on this issue not affect how this Court would rule on any attempt to dismiss the plaintiffs’ Complaint?

      Indeed, a recent decision of the United States Court of Appeals for the District of Columbia Circuit mandates that discovery on this aspect of the plaintiffs’ case is required. In Mihaylov et al. v. United States, 70 F.Supp.2d 4 (D.D.C. 1999), the plaintiff, a foreign diplomat, had alleged the U.S. Secret Service had failed to adequately protect him from harm - violating internal regulations and obligations in the process - and sought damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 et seq. The District Court was not persuaded by the plaintiffs’ request for discovery and dismissed the case. Mihaylov, 70 F.Supp.2d at 5. The Court of Appeals reversed the dismissal in Ignatiev v. United States, 238 F.3d 464 (D.C.Cir. 2001), and stated:


What is missing from the complaint is not a statement of the relevant facts - that the Secret Service failed to protect the Bulgarian Chancery - but a reference to applicable internal guidelines that rendered some protective actions nondiscretionary. Appellants have reason to believe that some such guidelines exist....Still, without discovery, appellants have no way to know what mandatory policies may bind the Secret Service.

Id. at 467.[3] The Court concluded that “[s]ince internal guidelines can be an actionable source under the FTCA ... an agency cannot shield itself from liability simply by denying the allegations of a complaint.” Id. In the instant matter, the plaintiffs have alleged that the defendants have violated their internal regulations and policies so as to serve as an actionable source of liability under the Fifth Amendment of the Constitution and the Administrative Procedure Act, 5 U.S.C. § 702 et seq. There is no distinction to be made. Discovery is required, as endorsed by the D.C. Circuit in Ignatiev.

      The defendants make a brief passing attempt at distinguishing Kartseva v. Department of State, 37 F.3d 1524 (D.C.Cir. 1994). Id. at 27-28.[4] Probably for good reason, the circumstances in Kartseva must compel this Court to deny the defendants’ Motion and
permit the plaintiffs to conduct discovery.
[5] Kartseva argued that her discharge from employment as a Russian translator excluded her from future employment in her chosen career thereby implicating her Fifth Amendment liberty interest. Id. at 1526. This is an identical argument as espoused by the plaintiffs in this case. The Court of Appeals reversed the District Court’s dismissal in order to allow for discovery to take place so that at least three important questions could be resolved:


(1) the scope of State’s express disqualification - in particular, whether State’s internal recommendation that Kartseva “no secure a position in support of any Department of State contract,” refers only to the Statistica contract from which Kartseva was removed, to all Statistica contracts with State, or, indeed, to any State contract; (2) the extent to which State’s Action as to Kartseva would normally be available to and would legally affect other government agencies or private employers in their decisions whether to employ her or permit her to work on government contracts; and (3) the extent to which the disqualification will affect Kartseva’s ability to pursue her vocation as a Russian translator.

Id. at 1530 (emphasis original). These questions are identical to those that must be answered in this case: (1) What was the scope of the defendants’ express disqualification of the plaintiffs based on their polygraph examinations? The plaintiffs have asserted that the defendants’ actions have disqualified them from pursuing their chosen careers. See e.g., Complaint at ¶¶135-146; (2) To what extent are the polygraph results and the defendants’ findings available to other government agencies or private employers. The plaintiffs have alleged that the information is widely available. See Complaint at ¶¶123, 125,131,132,138, 139,144,145,150-152,160-162; (3) Finally, to what extent did the defendants’ actions foreclose each of the plaintiffs from pursuing their vocations? The plaintiffs have alleged that they have been precluded from employment in their professional fields of choice. See e.g., Complaint at ¶¶135-146.[6]

      Furthermore, both the plaintiffs and Kartseva named unnamed government employees as defendants. See Complaint at 2; Kartseva, 37 F.3d at 1530. The Court of Appeals in Kartseva reversed the District Court’s dismissal of the Bivens claims against the unnamed defendants because the threshold “‘essential legal question whether the conduct of which the plaintiff complains violated clearly established law,’” was never decided. Id. (citation omitted). The Court elaborated that:


[w]here, as here, the resolution of the threshold question of the existence of a clearly established constitutional right requires information on the nature and effects of the government action that is exclusively within the domain of the government, limited discovery may be appropriate to determine that threshold issue.

Id. Thus, before the District Court here can address this issue, discovery must be permitted.[7]

      Finally, unlike Padula, 822 F.2d 97, which the plaintiffs cited in support of discovery but the defendants complained was distinguishable because it was decided on summary judgment grounds, see Defs’ Memo at 27, Kartseva similarly involved a Motion to Dismiss.[8] Therefore, the defendants cannot complain that discovery is not appropriate under the circumstances.[9]


      Based on the foregoing, the defendants’ Motion to Dismiss should be denied, and the plaintiffs’ Cross-Motion for Discovery should be granted.

Date:  April 17, 2001

                                          Respectfully submitted,




                                          Mark S. Zaid, Esq.

                                          D.C. Bar #440532

                                          Lobel, Novins & Lamont            

                                          1275 K Street, N.W.

                                          Suite 770

                                          Washington, D.C.  20005

                                          (202) 371-6626



      I HEREBY CERTIFY that on this 17th day of April 2001, a copy of the foregoing Reply to Defendants’ Opposition to Plaintiffs’ Cross-Motion for Discovery was mailed first class, postage pre-paid, to:


                              Marina Utgoff Braswell

                              Assistant U.S. Attorney

                              U.S. Department of Justice

                              Judiciary Center, Room 10-413

                              555 Fourth Street, N.W.

                              Washington, D.C.  20001






                                          Mark S. Zaid, Esq.


[1]In fact, while the defendants have admitted that polygraph examinations are “imperfect tools”, see Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss Complaint at 30 (filed January 26, 2001), so too did the government in Anderson admit that “polygraph testing is not perfect”. Id. 845 F.2d at 1219. Yet, discovery was still permitted prior to the Court ruling on the legal and factual arguments.


[2]The defendants attempt to distinguish Padula v. Webster, 822 F.2d 97 (D.C.Cir. 1987), which similarly challenged a FBI non-hiring decision as being in violation of an internal binding policy, as presenting a factual issue seemingly not present here. See Defs’ Memo at 27. Padula alleged she was denied employment by the FBI because she was homosexual even though the FBI had a “stated policy” not to discriminate on the basis of an applicant’s sexual orientation. Padula, 822 F.2d at 99. Now while it is true that Padula involved a Motion for Summary Judgment rather than a Motion to Dismiss, id., the fact remains that the District Court believed her underlying allegations merited discovery prior to permitting the government’s motion. The allegations are identical here. The plaintiffs have alleged that the sole reason for their denial of employment was the defendants’ polygraph examinations. They also specifically allege that the defendants’ stated policies do not permit such action. See e.g., Complaint at ¶¶42-43,122,130. The defendants cannot have it both ways. Either discovery should be permitted to flesh these issues out further, or by conceding that the defendants did arrive at their decisions solely based on the polygraph and without contesting that its regulations forbid this, this Court could exercise its own authority and award summary judgment for the plaintiffs on this issue.

[3]The Court of Appeals’ language in Ignatiev completely nullifies the defendants’ argument that the plaintiffs’ “Complaint neither cites nor describes any regulations or policies that defendants have failed to follow.” See Defs’ Memo at 10.


[4]The defendants also include brief swipes at some of the other cases initially cited by the plaintiffs as the basis for permitting discovery. For example, Fraternal Order of Police Lodge No. 5 v. City of Philadelphia, 546 A.2d 137 (Cmnwlth.Ct.Penn.1988) was distinguished as being limited to discovery on whether the polygraph requirement violated an existing collective bargaining unit. See Defs’ Memo at 28-29. There is no distinction. Essentially, the plaintiffs in Fraternal Order of Police Lodge No. 5 were simply challenging whether the use of the polygraph in certain personnel matters violated existing regulations. The plaintiffs herein make the same charge. See e.g., Complaint at ¶¶122,126,130,134. The cases cited by the plaintiffs were merely but a few examples of why discovery is warranted before this case can ever be dismissed. Of course, others exist to support the plaintiffs’ claims. See e.g., Mosrie v. Barry et al., 718 F.2d 1151, 1156 (D.C.Cir. 1983)(plaintiff permitted trial to first prove Fifth Amendment Constitutional claims); Taydus v. Cisneros et al., 902 F.Supp. 288, 294-95 (D.Mass. 1995)(discovery permitted on APA claim even though later dismissed as precluded by CSRA); Dickson v. United States et al., 831 F.Supp. 893, 900 (D.D.C. 1993)(discovery initially permitted for constitutional claims against the CIA); Woodland v City of Houston, 731 F.Supp. 1304, 1305 (S.D.Tex. 1990)(trial held on challenge to constitutionality of polygraph exams).  The defendants, while trying to legally manipulate the meaning of the plaintiffs’ cases, have cited no cases to the contrary.


[5]In fact, as with the plaintiffs’ case, Kartseva involved allegations under the Administrative Procedures Act, violations of procedural rights established by regulation and Fifth Amendment liberty interest claims. Even though the government successfully obtained dismissal of Kartseva’s claims before the District Court on a Motion to Dismiss, in reversing the decision the Court of Appeals ruled that when material facts were inaccessible rather than in dispute, discovery was appropriate. Id. 37 F.3d at 1530 n.21. As stated above, much of the information in question, particularly that of the defendants’ regulations and internal policies, are inaccessible at this time.

[6]Questions one and three are similar, but differ in scope. Thus, using John Doe#6 as an example, if he “can prove that [the FBI’s] action was, in fact, a determination of [his] legal eligibility to work on future [FBI matters], then [he] has a cause of action for violation of [his]due process liberty interest.” Kartseva, 37 F.3d at 1528. Alternatively, the broader issue is also before the Court as to whether the FBI’s disqualification of John Doe#6 for FBI employment “interferes with [his] constitutionally protected ‘right to follow a chosen trade or profession.’” Id. at 1529 (citations omitted). If this has occurred, than John Doe#6 has also “identified a cognizable liberty interest.” Id.


[7]Another case from this Circuit that would appear to support the plaintiffs’ claim for discovery is that of Doe v. United States Dep’t of Justice, 753 F.2d 1092 (D.C.Cir. 1985). The plaintiffs herein set forth similar Fifth Amendment allegations as that of Doe, and the latter survived the government’s Motion to Dismiss. Id. at 1102 (“Doe’s discharge amidst allegations of unprofessionalism implicates a constitutionally protected liberty interest in reputation and that, if those allegations were publicly disclosed, she is entitled to an opportunity to clear her name.”). The Court of Appeals’ dicta suggests that discovery should have been permitted so the record would not be so sparse on appeal. Id. at 1098.

[8]The government’s distinction between whether cases involved a Motion to Dismiss or for Summary Judgment seems to be a tenuous one. Though the standards set forth by Fed.R.Civ.Proc. Rules 12 and 56 are different, they nonetheless share a common denominator relating to whether there exists relevant or material facts that serve to defeat the Motion. Indeed, appropriate analogies to cases that arose in the summary judgment context would seem to offer even a stronger basis to first allow a party to conduct discovery before a Motion to Dismiss is permitted to succeed. By that the plaintiffs mean, for example, that if a prior case involving summary judgment discussed similar Fifth Amendment Constitutional claims and the plaintiffs defeated the government’s motion, then in instances where the record has not even been developed - such as here - surely the plaintiffs are entitled to proceed forward towards discovery. See e.g., Orange v. District of Columbia, 59 F.3d 1267, 1275 (D.C.Cir. 1995)(discovery permitted to prove Fifth Amendment Constitutional claims). Though cited by the plaintiffs, Orange was ignored by the defendants. As was Hogue v. Clinton, 791 F.2d 1318, 1321 (8th Cir. 1986), which permitted a bench trial on the plaintiffs’ Constitutional claims, and Bailey v. Kirk,

777 F.2d 567, 569 (10th Cir. 1985), which allowed depositions to occur.


[9]The plaintiffs would conduct discovery in a variety of areas. Depositions of the defendants’ polygraphers and personnel officials would be taken. Written and verbal discovery would include such areas as relevant regulations and policies governing polygraph procedures and employment decisions, the reliability and utility of the polygraph, polygraph studies, the training of the polygraphers, the plaintiffs’ polygraph examinations, questions commonly asked during the defendants’, and specifically the plaintiffs’, polygraph examinations, the extent to which the plaintiffs have been stigmatized, the extent to which the plaintiffs have been foreclosed from pursuing their vocations, and the extent of the availability of the plaintiffs’ files to other government and non-governmental entities. By no means is this list meant to be exhaustive. Home Page > Polygraph Litigation