UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ERIC CRODDY et al., *
*
Plaintiffs *
*
v. * Civil Action No. 00-0651 (EGS)
*
FEDERAL BUREAU OF *
INVESTIGATION et al., *
*
Defendants *
* * * * * * * * * * * *
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’
MOTION TO DISMISS AND CROSS-MOTION FOR DISCOVERY
This lawsuit is brought on behalf of seven
unsuccessful applicants for federal employment and strikes at the heart of the
government’s pre-employment polygraph policies. The plaintiffs’ prospects for
federal, and, in one case state, law enforcement careers have been irreparably
harmed because of the defendants’ actions. The Federal Bureau of Investigation
(“FBI”), the United States Secret Service (“USSS”) and the Drug Enforcement
Administration (“DEA”) utilize a so-called truth-testing device that infringes
upon protected Constitutional, statutory and regulatory rights of innocent and
honest applicants for federal employment. The policies underlying the federal governments’
pre-employment polygraph program, and the manner in which the defendants
implement the tactics, are Orwellian in nature and impermissible.
For the purposes of this round of
pleadings, the unreliability of the polygraph is not in dispute. The government
itself concedes the machine is imperfect, and since the plaintiffs are
responding to a Motion to Dismiss all allegations within their Complaint must
be taken as true. At this early stage, the plaintiffs have more than
sufficiently demonstrated that their claims under the Administrative Procedure
Act, 5 U.S.C. § 702 et seq. (“APA”), the Fifth Amendment to the
United States Constitution, as well as their assertion of a constitutional
right to privacy, survive. Thus, the lawsuit must continue into the discovery
phase.
SUMMARY
It is of no surprise that the plaintiffs
hold the opinions they do concerning the polygraph since they continue to
suffer the effect of the government’s stigmatizing allegations against them.
The controversy surrounding polygraph reliability is not a subject unknown to
the courts of this land. From the Supreme Court’s decision upholding a blanket
ban on the admissibility of polygraph evidence in military courts because
“there is simply no consensus that polygraph evidence is reliable,” United
States v. Scheffer, 523 U.S. 303, 309 (1998), to the Ninth Circuit Court of
Appeals decrying that the polygraph machine has developed the “misleading
reputation as a ‘truth teller’,” United States v. Marshall, 526 F.2d
1349, 1360 (9th Cir.), cert. denied, 426 U.S. 923 (1976), step by
step courts have limited the use of
this alleged scientific device.
This is a case about a specific group of
victims of the polygraph who were and continue to be applicants for federal law
enforcement employment. Surprisingly, in the wake of statutory prohibitions
regarding the use of the polygraph as a screening device and continuing
examples of its fallibility, federal agencies - such as the FBI, USSS and DEA -
have increased their use of the device. The majority of applicants who are
branded as liars by pre-employment polygraphs are invariably victimized by
questions regarding drug usage. The events in question, i.e., incidents of
marijuana being smoked, typically occurred years before the examination, often
more than a decade earlier. Recalling the exact number of times is almost
farcical, unless perhaps the applicant only used the substance once or twice on
memorable occasions.
The fact that so many years have gone by
significantly impacts upon the polygraph’s reliability. United States v.
Demma, 523 F.2d 981, 987 (9th Cir. 1975)(en banc)(“probative value of the
[polygraph] evidence diminished by the lapse of time between the occurrence of
the events and the taking of the test”). Of course, there is little difficulty
for an applicant to recall the fact that they never used illegal narcotics even
once in their life; a confession many government polygraphers seem to have
trouble accepting based on their own personal biases.
The governments’ polygraphers often have
little sophisticated training and their professionalism ranges across the
board. Some scream at applicants, pound their fists, ask inappropriate
questions about sexual deviance, marital affairs and mental instability. Others
may level accusations of lying, or even lie themselves in order to extract
false confessions. Innocent victims of the polygraph are common, particularly
because “[m]ultiple variables may influence the results of a polygraph test,
including the motivation of the subject, his physical and mental condition, the
competence, integrity, and attitude of the operator, the wording of the
relevant questions, the appropriateness of the control questions, and the
interpretation of the resulting graph.” United States v. Givens, 767
F.2d 574, 585 (9th Cir. 1985). The bottom line is that “the polygraph test in
fact relies upon a highly subjective, inexact correlation of physiological
factors having only a debatable relationship to dishonesty as such. The device
detects lies at a rate only somewhat better than chance.” U.S. v. Piccinonna,
885 F.2d 1529, 1542 (11th Cir. 1989).
Thus, we are now at the next cross-roads
of the battle against the polygraph.
ARGUMENT
“A motion to dismiss for failure to state
a claim upon which relief can be granted is generally viewed with disfavor and
rarely granted.” Doe v. United States Dept. of Justice, 753 F.2d 1092,
1102 (D.C.Cir. 1985), citing 2A Moore’s Federal Practice 12.08 (2d ed.
1948 & Supp. 1984). For the purposes of such a motion, the facts alleged in
the complaint must be accepted as true, and all
factual inferences, ambiguities or doubts concerning the sufficiency of a claim
are to be drawn in the plaintiff's favor. See Scheuer v. Rhodes,
416 U.S. 232,
236 (1979)(emphasis added); Doe, 753 F.2d at 1102.
A motion to dismiss under Rule 12(b)(6)
should be granted only if it appears beyond doubt that "no relief could be
granted under any set of facts that could be proved consistent with the
allegations." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S.
229, 249-50 (1989). The issue on a motion to dismiss "is not whether . . .
plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims." Scheuer, 416 U.S. at 236.
As the plaintiffs’ First Amended Complaint
provides sufficient information to entitle them to pursue their claims, the
defendants’ Motion must be denied.
I. PLAINTIFFS’
ALLEGATIONS THAT THE DEFENDANTS’ PRE-EMPLOYMENT
POLYGRAPH PROGRAM VIOLATES THEIR FIFTH AMENDMENT
CONSTITUTIONAL RIGHTS ARE SUFFICIENT TO SURVIVE
A MOTION TO DISMISS
The Due Process Clause of the Fifth
Amendment forbids the federal government from depriving persons of “life,
liberty, or property, without due process of law.” “`Liberty’ and ‘property’
are broad and majestic terms. They are among the ‘[g]reat [constitutional]
concepts ... purposely left to gather meaning from experience....[T]hey relate
to the whole domain of social and economic fact, and the statesmen who founded
this Nation knew too well that only a stagnant society remains unchanged.” Board
of Regents v. Roth, 408 U.S.
564, 571
(1971).[1] “The types of ‘liberty’ and
‘property’ protected by the Due Process Clause vary widely, and what may be
required under that Clause in dealing with one set of interests which it protects
may not be required in dealing with another set of interests.” Arnett et al.
v. Kennedy et al., 416 U.S. 134, 155 (1974).
The Supreme Court has emphasized time and
again that “[t]he touchstone of due process is protection of the individual
against arbitrary action of government.” County of Sacramento v. Lewis,
523 U.S. 833, 118 S.Ct. 1708, 1716 (1998)(citation omitted). See also Collins
v. Harker Heights, 503 U.S. 115, 126 (1992)(noting that the Due Process
Clause was intended to prevent government officials “‘from abusing [their]
power, or employing it as an instrument of oppression’”)(citation omitted).
This is so “whether the fault lies in a denial of fundamental procedural
fairness” or “in the exercise of power without any reasonable justification in
the service of a legitimate governmental objective.” Lewis, 118 S.Ct. at
1716.
The Supreme Court’s decision in Jenkins
v. McKeithen, 395 U.S. 411 (1969) recognized that the public branding of an
individual implicates either “liberty” or “property” interests, and that
neither can be achieved by the government without following certain procedural
safeguards to ensure the elimination of arbitrary or capricious actions. “Where
a person’s good name, reputation, honor, or integrity is at stake because of
what the government is doing to him, notice and an opportunity to be heard are
essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).
A. Applicants For Federal Employment
Possess Constitutional Protections
The language above stems from the evolution
of two centuries of thinking by our nation’s highest court. Yet with this one
case the defendants would have this Court rip the guts from the development of
constitutional protections for individuals who have sought to do nothing more
than devote their loyalties and service to the federal government. The
defendants wish for this Court to isolate a category of individuals and rule
that for some the constitution may as well not exist. Under the government’s
theory, applicants are no more worthy of protection than, for example, slaves
were prior to the Emancipation Proclamation in 1863. They would have no Fifth
Amendment protection from the government stripping their liberty interests by
branding them drug users or liars. They would have no due process protection
from the government disseminating these accusations to prospective employers,
regardless of the accuracy or the consequences. They are, after all, merely
applicants to which the government can and will do with as it sees fit. See
Memorandum of Points and Authorities in Support of Defendants’ Motion to
Dismiss at 23-27 (filed December 7, 2000)(“Defs’ Memo.”). This is the position
the government is espousing for the Court to adopt. Fortunately, the
defendants’ thesis is fundamentally flawed as a matter of law and far afield
from the public policies that now enrich this country.
The defendants wish to exclude applicants
from constitutional protection on the basis that the various precedental
decisions analyzing the existence of liberty interests do so primarily in the
context of employment cases. See e.g., Roth, 408 U.S. 564; Codd
v. Velger, 429 U.S.624 (1977); Doe, 753 F.2d 1092. It is true that
the majority of liberty interest cases involve individuals already employed,
but there is nothing within the Constitution or the case law that has arisen
therefrom that creates the unnatural schism sought by the defendants. “In a
Constitution for a free people, there can be no doubt that the meaning of
‘liberty’ must be broad indeed.” Bolling v. Sharpe, 347 U.S. 497,
499-500; Roth, 408 U.S. at 572.
The plaintiffs, even as applicants, are
entitled to due process because they possess a similar liberty interest “in
avoiding the damage to [their] reputation and business” from the rescinding of
their conditional job offers in the wake of allegations that they lied. Reeve
Aleutian Airways, Inc. v. United States et al., 982 F.2d 594, 598 (D.C.Cir.
1993). And while the defendants may be correct in stating that neither the
Supreme Court or the D.C. Circuit has squarely addressed the “applicant versus
employee” distinction, see Defs’ Memo at 23, it is completely
disingenuous to argue that the “law is to the contrary” when the very question
has been squarely addressed by several courts, including those cited by the
defendants, and implicitly by courts in this Circuit. The law is clear that
applicants possess the same liberty interests as employees.
It is well-settled that a liberty interest
is involved when:
(1)
the individual’s good name, reputation, honor or integrity are at stake by such
charges as immorality, dishonesty, alcoholism, disloyalty, Communism or
subversive acts or (2) the state imposes a stigma or other disability on the
individual which forecloses other opportunities.
Perry v. FBI, 781 F.2d 1294, 1300 (7th
Cir.), cert. denied, 479 U.S. 814 (1986). See Codd, 429
U.S.624; Bishop v. Wood, 426 U.S. 341 (1976); Roth, 408 U.S. at
573-74. The defendants have placed each of the plaintiffs’ good names,
reputations, honors and integrity at stake when they accused them of lying
about drug use, drug dealing, serious crimes, making false statements or other
issues that arose during their application process. See e.g.
First Amended Complaint at ¶¶70,93,107,112,133,146,161,172-73,185-187,
193,198,215,219 (filed Oct. 4, 2000)(“FAC”). The defendants have imposed a
stigma upon each of the plaintiffs that will foreclose future employment
opportunities by placing derogatory information regarding the polygraph results
in their personnel files. The defendants have made the results widely available
to third parties, including prospective employers, and the plaintiffs
themselves are required to or will reveal the information as they proceed
through hiring processes. See Declaration of Eric Croddy at ¶6 (dated
September 29, 2000), attached as Exhibit “1” (“Croddy Decl.”); Declaration of
John Doe#1 at ¶13 (dated September 28, 2000), attached as Exhibit “2” (“John
Doe#1 Decl.”); Declaration of John Doe#2 at ¶12 (dated September 28, 2000),
attached as Exhibit “3” (“John Doe#2 Decl.”); Declaration of John Doe#3 at ¶9
(dated September 28, 2000), attached as Exhibit “4” (“John Doe#3 Decl.”);
Declaration of John Doe#4 at ¶8-9 (dated September 28, 2000), attached as
Exhibit “5” (“John Doe#4 Decl.”); Declaration of John Doe#5 at ¶7 (dated September
25, 2000), attached as Exhibit “6” (“John Doe#5 Decl.”); Declaration of Darryn
Mitchell Moore at ¶10 (dated September 25, 2000), attached as Exhibit “7”
(“Moore Decl.”).
“Such a deprivation of liberty has been
recognized not only where the individual is employed by the state, but where he
seeks employment with the state and is denied it.” Waltentas v. Lipper,
636 F.Supp. 331, 337 (S.D.N.Y. 1986), rev’d on other grounds,
862 F.2d 414,
421 (2d Cir. 1988). In so ruling, Waltentas relied upon Doe v. United
States Civil Serv. Com’n, 483 F.Supp. 539 (S.D.N.Y. 1980), where the
plaintiff had been denied a White House fellowship because the defendant had
recorded and included false and derogatory statements about her in her file,
thus making them a basis for the hiring decision, without affording her the
opportunity to refute them. Id. at 566. The court found that “Doe’s
claim is not beyond the ‘logical stopping place’ established by the Supreme
Court decisions concerning the constitutional prohibition against government
defamation.” Id. at 569. The defamation alleged by Doe “did not alter or
extinguish a right or status previously
recognized by state law,” id, citing Paul, 424 U.S. at
711, and the “government[’s] action has operated to bestow a badge of disloyalty
or infamy, with an attendant foreclosure from other employment opportunity.” Cafeteria
& Restaurant Workers v. McElroy, 367 U.S. 886, 898 (1961). See also
Carmi v. Metropolitan St. Louis Sewer District, 620 F.2d 672 (8th Cir.), cert.
denied, 449 U.S. 892 (1980)(unsuccessful applicant for federal employment
possesses liberty interest when government impairs applicant’s ability to get
another job).
The factual distinction between an
employee and an applicant is irrelevant for the purposes of determining a
constitutional liberty interest based on the analysis of the Supreme Court’s
guidance in Codd, Bishop and Roth. In each of these cases
the plaintiffs did not have “legally cognizable property interest[s] in the
government job at stake”, United States Civil Serv. Com’n, 483 F.Supp.
at 569, but rather relied on the fact:
that
the liberty interest protected by the Due Process Clause prohibits the
government from depriving an individual of government employment on the basis
of false charges and then aggravating the injury, and further diminishing
employment opportunities, by tarnishing the individual’s name and reputation.
Waltentas, 636 F.Supp. at 337, quoting
United States Civil Serv. Com’n, 483 F.Supp. at 570. Of course, in order
to prove impairment of a liberty interest by government defamation, plaintiffs
must allege that the charges were false, see Codd, 429 U.S. at
627-28, and that they were made public by the offending governmental entity,
thus harming the interest in “good name, reputation, honor, or integrity.” Bishop,
426 U.S. at 348 (citation omitted). Both requirements have been met by the
plaintiffs, as detailed throughout their pleadings.
Moreover, this is not the first time an
applicant has raised a Fifth Amendment liberty interest challenge before this
Court or in this Circuit. In Gillett v. King, 931 F.Supp. 9 (D.D.C.
1996), the Honorable Stanley Harris implicitly, if not explicitly, recognized
that an applicant for government employment possesses a constitutional liberty
interest. There the plaintiff sought but was denied a specific position as a
federal Administrative Law Judge (“ALJ”). Id. at 12. In its ruling the
court relied on a substantially similar decision reached by the D.C. Circuit in
White v. OPM, 787 F.2d 660 (D.C.Cir.), cert. denied, 479 U.S. 885
(1986), which held that the “government’s relationship with an applicant for a particular job does not implicate
the due process clause’s protection of liberty interests.” 787 F.2d at 665
(emphasis added).[2] “Because an ALJ position is
simply one particular job and is not in itself a profession ... plaintiff
cannot establish a liberty interest in becoming an ALJ.” Gillett, 931
F.Supp. at 13. Thus, Judge Harris, based on the D.C. Circuit’s ruling in White,
acknowledged that liberty interests do exist when a plaintiff has alleged the
government has interfered with the ability to seek employment within a profession, which is exactly
what the plaintiffs have alleged herein. See e.g., FAC at
¶¶232-33,242, 250,257,263,269, 276,286,296,307, 318,328,338,353,361,366,379,392;
Croddy Decl. at ¶6; John Doe#1 Decl. at ¶¶10-13; John Doe#2 Decl. at ¶¶11-14;
John Doe#3 Decl. at ¶9; John Doe#4 Decl. at ¶¶8-9; John Doe#5 Decl. at ¶7;
Moore Decl. at ¶10-13.[3]
Applicants have also been found to possess
constitutional protection to challenge mandatory drug tests, a concept similar
to the notion of mandatory polygraph examinations. Sometimes successfully. Georgia
Ass’n of Educators v. Harris,
749 F.Supp.
1110 (N.D.Ga. 1990). Sometimes not. Willner v. Thornburgh, 928 F.2d 1185
(D.C.Cir. 1991). Moreover, the D.C. Circuit has outright recognized the “right
of a federal job applicant to seek injunctive relief from an agency’s violation
of his constitutional rights in general.” Hubbard v. U.S. E.P.A. Admin.,
809 F.2d 1, 11 (D.C.Cir. 1986)(citations omitted).
In fact, in the case most analogous to
this one, where denied applicants to the Philadelphia Police Department
challenged the use of polygraph testing, the district court found that their
constitutional liberty interests had been violated. Anderson v City of
Philadelphia, 668 F.Supp. 441, 443 (E.D.Pa. 1987). Although the Third
Circuit reversed the decision, Anderson v. City of Philadelphia, 845
F.2d 1216 (3d Cir. 1988), it did so solely on the grounds that the plaintiffs
failed - unlike the plaintiffs in this case - to allege that any of their
polygraph test results were made public. Id. at 1222. Thus, they were
simply unable to meet one of the necessary requirements to prove
unconstitutional deprivation of a liberty interest. The Third Circuit,
therefore, quite clearly recognized that applicants are entitled to and can
pursue a liberty interest claim under the Fifth Amendment.
Finally, the defendants’ own authority
contradicts their argument. See Dziewior v. City of Marengo, 715
F.Supp. 1416, 1423 (N.D.Ill 1989)(noting Seventh Circuit in Perry,
759 F.2d 1271,
1276-82 (7th Cir. 1985) recognized liberty interests have been extended to
applicants for governmental employment). The remaining cases cited by the
defendants set forth the standards for determining whether a liberty interest
has been violated, not whether the right exists.[4]
This Court should explicitly hold that
applicants possess Fifth Amendment liberty interest protections.
B. The Plaintiffs’ Fifth Amendment Liberty
Interests Were Violated By The Defendants’
Pre-Employment Polygraph Policies Based
On The Defendants’ Defamation
Of Their Character Coupled With The Withdrawal Of Their Employment Offers In A Manner That Continues To
Stigmatize Them
In its most recent pronouncement, the D.C.
Court of Appeals has held that deprivation of a protected liberty interest may
be shown either through an adverse employment action in "conjunction"
with official defamation ("defamation plus"), or through an adverse
employment action in "combination" with an automatic or formal
exclusion from some category of employment opportunities, or in combination
with largely precluding one from pursuing a chosen career or profession ("stigma
plus"). O'Donnell v. Barry,
148 F.3d 1126,
1143-44 (D.C.Cir. 1998), citing Kartseva v. Department of State,
37 F.3d 1524, 1527-29 (D.C.Cir.1994). Mere defamation alone will not implicate
a liberty interest. Davis, 424 U.S. at 710. But “liberty interests arise
if employees are terminated in a manner that ‘stigmatizes’ them by impugning
their reputations or foreclosing their future employment opportunities,” Orange
v. District of Columbia, 59 F.3d 1267, 1274 (D.C.Cir. 1995), citing Roth,
408 U.S. at 572-73, or, as explained above, when an applicant is denied
employment. See e.g., Larry v. Lawler, 605 F.2d 954, 956 (7th
Cir. 1978); Velger v. Cawley, 525 F.2d 334, 336 (2d Cir. 1975), rev’d
on other grounds sub nom, Codd v. Velger, 429 U.S. 624 (1977); United
States Civil Serv. Com’n, 483 F.Supp. at 570-71.
1. The Plaintiffs Suffered Loss Of Government Employment Due To
The Defendants’
Defamatory Allegations That They Lied On Their Applications And/Or Failed
Polygraph Examinations
The D.C. Circuit has “consistently
interpreted Paul’s ‘stigma plus’ test to require two forms of government
action before a plaintiff can ‘transform a [common law] defamation into a
[constitutional] deprivation of liberty.’” Doe, 753 F.2d at 1108, quoting
Mosrie v. Barry, 718 F.2d 1151, 1161-62 (D.C.Cir. 1983). First, the
government must be the source of the defamation. Id. at 1161. In the
plaintiffs’ cases, this is met as it is indisputable the defamation originated
from each of the defendants. Second, there must be a tangible change of status
vis-a-vis the government as a result of the stigma. Since the plaintiffs had
their employment offers rescinded amid allegations of illegal conduct (i.e.,
drug use, drug dealing, lying), they are not only precluded from employment
within the particular agency they applied to, but they have been foreclosed
from all future employment within their intended profession of federal law
enforcement. See e.g., FAC at ¶¶70,72,93,96-97,
107-8,112-13,133,136,146,161,166,174,186-87,193,196,201,215,219,221; Croddy
Decl. at ¶¶5-6; John Doe#1 Decl. at ¶¶10-13; John Doe#2 Decl. at ¶¶8,11-14;
John Doe#3 Decl. at ¶¶7-9; John Doe#4 Decl. at ¶¶8-9; John Doe#5 Decl. at
¶¶6-7; Moore Decl. at ¶¶6,10-13. Several plaintiffs, in fact, have already lost
out on subsequent federal employment because of the defendants’ polygraph
examinations. See e.g., FAC at ¶¶116-119,223-226. The others are in the
process of applying, notwithstanding the existing stigma. None have yet been
able to successfully overcome the stigma. Id. at ¶¶98,151,181,208. Thus,
tangible changes of status clearly exist, and the plaintiffs’ allegations meet
the standards set by this Circuit.
[T]he
principal recent cases from this court in which a government-imposed stigma was
found to have deprived the stigmatized person of a liberty interest involved either loss of employment or foreclosure of a right to be
considered for government contracts in common with all other purposes.
Mosrie, 718 F.2d at 1161 (emphasis
added).[5]
To be sure, the Third Circuit’s decision
in Anderson is the penultimate case for this Court to consider in its
adjudication. The plaintiffs in Anderson asserted that they had been
falsely branded as liars based on their failure to pass the defendants’
polygraph examinations. The Third Circuit reversed the district court’s
decision because of one, and only one,
reason: no publication. Id., 845 F.2d at 1222. The Court noted that:
[w]hile the polygraph
results might conceivably be viewed as stigmatizing the plaintiffs or damaging
their reputations, the plaintiffs have not alleged that any of their polygraph
test results were made public. Rather the department’s assertion that the
polygraph results are kept confidential and undisclosed stands unchallenged.
Given that, we find untenable the plaintiffs’ claim that they have been
deprived of a liberty interest.
Id. This alone permits the
plaintiffs to defeat the government’s Motion to Dismiss their liberty interest
claim. The plaintiffs have clearly asserted that the stigmatizing fact of their
polygraph failures is publicly available. See e.g., FAC at
¶¶231,241,249,256,262,268,275, 285,295,305-6,316-17,327,337. Without hesitation
the defendants will, because of their ability to do so through the Privacy Act,
disseminate the stigmatizing details of the plaintiffs’ failed polygraph
examinations throughout law enforcement agencies within federal, state and
local governments.[6] More than that, the
plaintiffs have specifically asserted that the existence of their polygraph
failure has already been publicly disseminated to others. See John Doe#1
Decl. at ¶12; John Doe#2 Decl. at ¶12; John Doe#4 Decl. at ¶8.[7]
It does not require Einsteinium
intelligence or even a stretch of the imagination to recognize the stigmatizing
nature of an applicant failing a polygraph examination, especially when failure
is tantamount to an accusation of lying.[8] Inaccurate polygraph
evidence clearly creates an “overwhelming potential for prejudice”. Brown v.
Darcy,
783 F.2d 1389,
1396 (9th Cir. 1986). It is worsened by the fact that the defendants permit
little, if any, internal administrative remedies and do not notify the rejected
applicants of any other remedies that may possibly exist.
2. Releasing Polygraph Results Conveys False Impressions
The defendants absurdly attempt to turn
the equation on its head by arguing that no factual dispute exists because “it
is not ‘false’ for an agency to disclose that they failed the agency’s
polygraph examination.” See Defs’ Memo at 27-28. The government reveals
its Chutzpah by actually asserting that “a disclosure that a person ‘failed’
the polygraph examination or was considered to be ‘deceptive’ on an issue is
not the same as saying that the person is a liar, or drug dealer, or drug
user.” Id. at 28. The
government not only misstates what is at issue, but distorts reality.
First, this argument raises a factual
question that defeats the governments’ own Motion. It is not appropriate to
resolve this issue at this stage. The plaintiffs have clearly alleged that the
polygraph results do convey false impressions, if not actual facts. See
FAC at passim; Croddy Decl. at ¶¶3-5;
John Doe#1 Decl. at ¶¶3-9; John Doe#2 Decl. at ¶¶3-9; John Doe#3 Decl. at
¶¶3-6; John Doe#4 Decl. at ¶¶3-6; John Doe#5 Decl. at ¶¶3-5; Moore Decl. at
¶¶3-5. For the purpose of this Motion, the Court must accept these allegations as
true. Thus, the conclusory assertions of the defendants have absolutely no
weight.
Second, failing a polygraph, contrary to
the governments’ assertion, is akin to “lying”. In fact, during the plaintiffs
polygraph examinations, the polygraphers repeatedly noted - indeed screamed at
times - that the respective plaintiff was “lying”. See e.g. FAC
at ¶¶70,93,107, 112,133,146,161,172-73,185-187,193,198,215,219. The very
meaning of the word “deceptive” is reasonably interpreted as “lying”.[9] The government should not
be permitted to redefine common concepts or words simply to suit its own
interests. The meaning of a polygraph result is either black or white. It
cannot be, as the government intimates, an area of gray. If an applicant fails
a polygraph test, i.e., deception is indicated, that person is viewed as a
liar. Either they have told the truth or they have not. If they have not, they
have lied. An applicant cannot be just a little bit pregnant. Indeed, the last
time Congress legislatively addressed the use of polygraphs, it was noted that
“[t]he polygraph must do two things: correctly identity liars and correctly
identify those who are telling the truth.” Employee
Polygraph Protection Act: Hearing on S.185 Before the Senate Committee on Labor
and Human Resources, 100th Cong., 1st Sess. (Appendix to statement of John
F. Beary, III, M.D.)(1988).
Third, if one accepts the governments’
argument, then all or at least some of the plaintiffs should now be employed by
the defendant agencies. The plaintiffs have pled that solely as a result of the
failed polygraph examinations their conditional job offers were rescinded. See
FAC at ¶¶234,239,247. If the results were not as serious as the defendants
would now have us believe, then there is no other explanation as to why full
fledged background investigations were not conducted. Yet the facts reveal that
once an applicant is shown to be “deceptive”, their employment opportunity is
gone. Obviously, the defendants routinely accept their polygraphers’
“interpretation of results” at a level far more seriously than the governments’
attorneys would have us believe. See Defs’ Memo at 28.
3. The Disclosure Of False Polygraph Results Is Stigmatizing
The government asserts that the polygraph
results are not stigmatizing because “the experiences of the plaintiffs
themselves demonstrate that the failure of a polygraph does not ‘foreclose’ an
applicant from further employment opportunities in the law enforcement
profession.” See Defs’ Memo at 31. Beyond the fact that this statement
is nothing more than conclusory and cannot serve to overcome the plaintiffs
assertions in their First Amended Complaint, which of course are taken as true
at this stage, the government is wrong.
First, again, these are all factual issues
that are totally inappropriate to resolve in an initial Motion to Dismiss,
especially before any discovery has taken place or a hearing before the
district court. Therefore, the government’s conclusory factual beliefs are
meaningless.
Second, the government casually argues the
entire lawsuit should be dismissed yet only addresses the specific situations
of John Does#2,3 and 5, because they are currently employed by either a state
or local law enforcement agency. See Defs’ Memo at 29-31. Even if the
governments’ arguments with respect to these three plaintiffs had merit, which
they do not, this has no impact on the claims espoused by plaintiffs Eric
Croddy, John Does#1 and 4 or Darryn Moore. Each of the plaintiffs have
sufficiently pled that they have been stigmatized by the defendants’ polygraph
examinations, and that this has foreclosed employment opportunities in their
chosen professions. See e.g., FAC at
¶¶70,72,93,96-97,107-8,112-13,133,136,146,161,166,174,186-87,193,196,201,215,
219,221; Croddy Decl. at ¶¶5-6; John Doe#1 Decl. at ¶¶10-13; John Doe#2 Decl.
at ¶¶8,11-14; John Doe#3 Decl. at ¶¶7-9; John Doe#4 Decl. at ¶¶8-9; John Doe#5
Decl. at ¶¶6-7; Moore Decl. at ¶¶6,10-13. [10]
Additionally, the FAC clearly details the
stigmatization that has taken place to foreclose employment opportunities in
the plaintiffs’ chosen profession of “federal
law enforcement”. See e.g. FAC at
¶¶232-33,242,250,257,263,269,276,286,296, 303,318,328,338. Obviously, the
defendants have failed to adequately understand the scope of the plaintiffs’
contentions. The fact that some of the plaintiffs might presently be employed
by state or local law enforcement agencies is not relevant, particularly
because it is the profession of federal law
enforcement that is at issue (John Doe#1, however, has also been unable to even
attain employment in the state or local arenas). The plaintiffs have alleged
that the fact they failed polygraph examinations - which in and of itself is in
dispute - has stigmatized them. Indeed, the existence of a prior failed
polygraph examination administered by one federal agency was the sole reason
why an applicant was denied employment with a different federal agency. See
Declaration of John Doe “C” (dated October 2, 2000), attached as Exhibit “10”.
Given that the second agency issued its decision in writing, this cannot be
disputed. Id. at ¶¶6,8. This fact alone should serve to defeat the
governments’ arguments concerning lack of stigmatization.
In any event, the allegations set forth by
the plaintiffs are sufficient to defeat the government’s Motion to Dismiss at
this early stage. Kartseva, 37 F.3d 1524 (D.C.Cir. 1994); See also
Taylor v. Resolution Trust Corp., 56 F.3d 1497, 1506 (D.C.Cir. 1995)
(government action infringes constitutionally protected liberty interests even
when preclusion from future employment opportunities is broad); McKnight v.
Southeastern Pennsylvania Trans. Auth., 583 F.2d 1229, 1236 (3d Cir.
1978)(holding that harm to future employment possibilities may show sufficient
stigma to allow a claim for a violation of a liberty interest); Greene v.
McElroy, 360 U.S. 474, 492 (1959)(revocation of security clearance possibly
implicates Fifth Amendment liberty interest where action “has seriously affected, if not destroyed, [plaintiff’s]
ability to obtain employment in [chosen] field”).
Third, as already discussed, the fact that
the plaintiffs “failed” an agency’s polygraph examination was the sole reason
why their conditional job offers were rescinded. How such a fact could not be
considered stigmatizing should mystify all reasonable persons.[11] The government’s argument
that failing a polygraph examinations is not stigmatizing is just plainly
absurd, and should be rejected.
i. The Defendants’ Actions Have Effectively Precluded Plaintiffs
From Following
Their Trade, Profession Or Other Calling To Attain Employment
In Federal Law Enforcement[12]
“The concept of liberty protected by the
due process clause has long included occupational liberty - ‘the liberty to
follow a trade, profession, or other calling.’” Wroblewski v. City of
Washburn, 965 F.2d 452, 455 (7th Cir. 1992)(citations omitted).
Protected
liberty interests are implicated “‘where government action has operated to
bestow [stigma] with an attendant
foreclosure from other employment opportunity.’” Paul, 424 U.S. at
705 (citation omitted).
The D.C. Circuit endorsed a plaintiff’s
right to demonstrate to the Court, obviously after discovery, to what extent
the stigmatizing reasons for discharge have been conveyed to the public or
other government agencies and harmed future employment opportunities. Doe,
753 F.2d at 1113. This public disclosure requirement is met because the
defendants have placed negative information within the plaintiffs’ files which
is “available, even on a limited basis, to prospective employers or government
officials.” Id.
Finally, it should be noted that in
advancing their defenses to a Fifth Amendment argument the government has
intentionally omitted a challenge to the plaintiffs’ assertions that the defendants
will disclose the polygraph results. Therefore, this argument must be deemed
waived for future purposes. See Fed.R.Civ.Proc.R.12(g). In any event,
the law is clear that the publication requirement is satisfied due to the fact
that the defendants have placed the information within the plaintiffs’ files. See
e.g. Kartseva,
37
F.3d at 1528 (availability of unfavorable information to future potential
government employers constitutes status change of due process import); Brandt
v. Board of Co-Op. Educational Services, 820 F.2d 41, 45 (2d Cir.
1987)(presence of charges in personnel file has damaging effect on future job
opportunities); Hogue v. Clinton, 791 F.2d 1318, 1322 n.7 (8th
Cir.)(1986)(personnel file replete with wrongdoing sufficient publication if
file made available to prospective employers); Bailey v. Kirk, 777 F.2d
567, 580 n.18 (10th Cir. 1985)(presence of false and defamatory information in
personnel file may constitute publication if not restricted to internal use); Burris
v. Willis Indep. School Dist., Inc., 713 F.2d 1087, 1092 (5th Cir.
1983)(evidentiary hearing required where information contained in files clearly
false and possibility exists that information will not be kept confidential); Old
Dominion Dairy Products, 631 F.2d at 966 (liberty interest claim exists due
to debarment when government agency made written finding and placed it in
permanent file accessed by future government decision-makers); Lawler,
605 F.2d at 958 (government stigmatized plaintiff throughout federal government
by making information available in files); Velger, 525 F.2d at 336
(charges entered in personnel file amounted to publication given that “New York
City ... grants ready access to its confidential personnel files to all
governmental police agencies”); Ervin, 33 F.Supp.2d at 10 (allegations
that government officials made disparaging and defamatory statements that
effectively barred plaintiff from future contracts with defendant sufficient to
overcome motion to dismiss).[13]
4. The Privacy Act Does Not Trump Constitutional Claims[14]
As a last resort to escape liability under
the Constitution, the government asserts that even if Constitutional protection
exists, the plaintiffs must instead pursue remedies under the Privacy Act, 5
U.S.C. § 552a et seq. See Defs’ Memo at 31-34. The suggestion
that the plaintiffs must make a “response to a challenge of [their]
constitutional liberty interest in writing smacks of administrative tyranny.” Lawler,
605 F.2d at 962.
Indeed, the D.C. Circuit Court of Appeals
has cautioned against the very view expressed by the government. Constitutional
claims should be brought openly, and not under the guise of the Privacy Act.
“Virtually everything the government does involves paperwork. Each time the
government violates the Constitution, statutes or regulations, its paperwork
could therefore said to be ‘inaccurate’ or ‘incomplete.’ Not every such
violation, however, gives rise to a Privacy Act claim. To hold otherwise would
transform every constitutional and statutory claim based on administrative
actions into a Privacy Act suit.” White, 787 F.2d at 664. Of course, it
is well-settled the Privacy Act does not permit a challenge to opinion, see
e.g., Reinbold v. Evers, 187 F.3d 348, 361 (4th Cir.
1999)("[T]he Privacy Act does not allow a court to alter records that
accurately reflect an administrative decision, or the opinions behind that
administrative decision."); Douglas v. Agricultural Stabilization &
Conservation Serv., 33 F.3d 784, 785 (7th Cir. 1994) ("Privacy Act
does not authorize relitigation of the substance of agency decisions";
"the right response . . . is to correct the disposition under the
Administrative Procedure Act"), which is what the defendants’ argue the
polygraph test results reflect. See Defs’ Memo at 28 (“A polygraph
examination result is a statement of opinion....”).
In support of its premise, the government
relies principally on two cases: Mittleman v. United States, 997 F.Supp.
1 (D.D.C. 1998) and Perry, 781 F.2d 1294. Neither case supports the
relief request by the government. The plaintiff in Mittleman attempted a
last ditch effort in one of her several lawsuits to amend her complaint to
include Fifth Amendment claims in litigation that dated back twelve years.
Based on the specific facts in that
case, the court understandably declined to permit the amendment. Id. at
10-11. The only relief she apparently sought was expungement of the records in
question (of course, the plaintiffs herein seek more than just expungement)
which, in fact, the defendant had already agreed to do under the Privacy Act. Id.
at 9 fn.17. Therefore, her constitutional claim would not have provided any
further relief than she already had attained, and would have succumbed to a
motion to dismiss. Id. at 11.
As for Perry, which is of course
not precedent in this Circuit, the decision elaborates upon the litany of
specific steps undertaken to satisfy the plaintiff’s due process rights as well
as crucial factual information that distinguishes the case. In Perry the
government conducted a full background investigation to ascertain the facts, id.
at 1298, the adverse information was neither published nor distributed, id.
at 1299, the document in question in fact did not even accuse the plaintiff of
wrongdoing, id., the plaintiff did not deny he did what he was said to
have done, id. at 1301, and he “was given several opportunities at
various times to dispute the allegedly false information.” Id. None of
the facts are similar to what transpired in the instant matter. Indeed, they
are diametrically opposed.
There is no language within either Mittleman
or Perry that stands for the proposition that the Privacy Act can trump
claims brought under the Constitution. Even to the extent one or both of these
cases could somehow be interpreted in the manner intended by the defendants, it
has been well-settled by the D.C. Circuit that, notwithstanding the
availability of the Privacy Act, expungement of agency records is an available
relief for an action brought directly under the Constitution. See Doe
v. U.S. Air Force, 812 F.2d 738, 740-41 (D.C.Cir. 1987); Hobson v.
Wilson, 737 F.2d 1, 65 (D.C.Cir. 1984); Chastain v. Kelley, 510 F.2d
1232, 1235 (D.C.Cir. 1975).
C. THE PLAINTIFFS ARE CONSTITUTIONALLY ENTITLED
TO NAME-CLEARING
HEARINGS AS A DUE PROCESS REMEDY[15]
As each of the plaintiffs’ professional
reputations were stigmatized by the respective defendants’ actions, it is
well-settled that one remedy “mandated by the Due Process Clause of the [Fifth]
Amendment is an ‘opportunity to refute the charge.’” Codd,
429 U.S. at
627, quoting Roth, 408 U.S. at 573.[16] Therefore, the plaintiffs
are entitled to “name-clearing” hearings. See Codd, 429 U.S. at
627; Roth, 408 U.S. at 573; Doe, 753 F.2d at 1102.
An individual’s right to the protection of
his own good name “reflects no more than our basic concept of the essential
dignity and worth of every human being -- a concept at the root of any decent
system of ordered liberty.” Rosenblatt v. Baer, 383 U.S. 75, 92 (1966).
“[L]iberty is not offended by dismissal from employment itself, but instead by
dismissal based upon an unsupported charge which could wrongfully injure the
reputation of an employee....[T]he purpose of the hearing in such a case is to
provide the person ‘an opportunity to clear his name’....” Arnett, 416
U.S. at 157. The same principle applies to denial of employment.
The “right to be heard before being
condemned to suffer grievous loss of any kind, even though it may not involve
the stigma and hardships of a criminal conviction, is a principle basic to our
society.” Joint Anti-Facist Refugee Committee v. McGrath,
341 U.S. 123,
168 (1951)(Frankfurter, J., concurring). The fundamental requirement of due
process is the opportunity to be heard “at a meaningful time and in a
meaningful manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).[17]
1. The
Plaintiffs Sought Opportunities To Clear Their Good Names
But All Efforts Were Rejected Or Ignored By The
Defendants
Each of the plaintiffs pressed the
defendant in question for an opportunity to respond to any allegations of drug
use, lying, violent crimes or any other accusations arising from the polygraph
examination. See FAC at passim.
Oftentimes, they encouraged the respective agency to conduct a full fledged
background investigation to truly determine whether the allegations were true
or not. All attempts to attain what would essentially have been a name-clearing
hearing failed.
These allegations are not unlike those
discussed in Doe which also contained averments that the plaintiff
sought, “but was systematically denied, an opportunity to address the charges
that resulted” in the termination of his employment. Id., 753 F.2d at
1103. The entire thrust of the plaintiffs’ allegations are that the defendants’
“allegations and the discharge have damaged [their] professional reputation[s]
and that [they] ha[ve] never been given an opportunity to refute the charges in
any orderly way.” Id. More than that,
their First Amended Complaint specifically requests Codd
hearings. See FAC at ¶103.[18]
Codd requires that the defendants
provide each of the plaintiffs “an opportunity to refute, by cross-examination
or independent evidence, the allegations which gave rise to the reputational
injury.” Doe, 753 F.2d at 1114 fn. 27 (citations omitted).[19]
The defendants have never done so, and
this Court should ensure that they do.
2. This Court Has Other Remedies To Chose From
In Resolving The Due Process
Violations
A name clearing hearing is but just one
available remedy for a due process violation. There are several others that can
and should be awarded as a result of the defendants’ infringement of the
plaintiffs’ constitutional rights.
i. Reinstatement Of Plaintiffs’ Applications For Employment
The defendants offer a generalized
argument against the availability of reinstatement as a remedy for a
Constitutional violation. See Defs’ Memo at 34-35. That the plaintiffs
may not possess Fifth Amendment property rights, which has not been alleged
otherwise, does not affect this Court’s ability to order the defendants to
reinstate the plaintiffs applications. In support of its argument, the
government simply proffers a footnote citation. Doe, 753 F.2d at 1100
fn.9. However, since that time the D.C. Circuit has reaffirmed that
“reinstatement clearly is among those equitable remedies available.” Hubbard,
809 F.2d at 11. “[R]einstatement may be had in a constitutional case involving
employment ... ‘if the decision not to rehire him was made by reason of his
exercise of constitutionally protected ... freedoms.’” Id. at 12, quoting
Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 283-84
(1977). This long-standing principle specifically entitles federal job
applicants to reinstatement if they can demonstrate their application was
rejected in violation of the Constitution. Hubbard, 809 F.2d at 12. See
also Vitarelli v. Seaton, 359 U.S. 535 (1959)(reinstatement proper
remedy for violation of agency regulations); Anderson, 668 F.Supp. at
443 (reinstatement ordered for consideration without polygraph results as sole
determinative), rev’d on other grounds, 845 F.2d 1216.
ii. Expungement Of Records
As previously referenced, it is well
settled that under the Constitution and the equitable powers of this Court,
expungement of agency records is entirely permissible and appropriate as a
proper remedy in an action brought directly under the Constitution. See e.g.
Doe, 812 F.2d at 740-41; Smith v. Nixon, 807 F.2d 197, 204
(D.C.Cir 1986); Hobson, 737 F.2d at 65; Chastain, 510 F.2d at
1235; Doe v. FBI, 718 F.Supp. 90, 100 (D.D.C. 1989).
“Statutes requiring maintenance and
regulating destruction of agency records do not prevent an order requiring
expungement, but must ‘yield to statutory or constitutional rights elsewhere
guaranteed.’” Doe, 812 F.2d at 741, citing Hobson, 737
F.2d at 64.[20]
One possible recourse to prevent the
polygraph results from continuing to harm the plaintiffs is to expunge all
references to the existence the examinations ever took place, and all records
associated with the application process so that the plaintiffs can have a fresh
start elsewhere.
II. THE
PLAINTIFFS HAVE ADEQUATELY SET FORTH CLAIMS UNDER THE ADMINISTRATIVE PROCEDURE ACT BASED ON VIOLATIONS OF AGENCY REGULATIONS AND POLICIES AND THE
FIFTH AMENDMENT OF THE UNITED
STATES CONSTITUTION
Under the APA’s waiver of the government’s
sovereign immunity, “[a] person suffering legal wrong because of agency action
... is entitled to judicial review thereof.”
5 U.S.C. § 702.
For claims permitted under the APA, jurisdiction is proper under the federal-question
statute, 28 U.S.C. § 1331, and the declaratory-judgment statute,
28 U.S.C. §2201
et seq,, both of which have been asserted by the plaintiffs to challenge
the defendants’ decisions. Section 706 sets forth the scope of the Court’s
review of agency decisions. A court may:
(2)
hold unlawful and set aside agency action, findings, and conclusions found to be --
(A) arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance
with law;
(B) contrary to constitutional
right, power, privilege, or immunity;
(C) in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of
procedure required by law ...
(F) unwarranted by the facts to
the extent that the facts are subject to trial
de novo by the reviewing court.
Id. at 706.
“Courts, of course, have long required
agencies to abide by internal, procedural regulations concerning the dismissal
of employees even when those regulations provide more protection than the Constitution
or relevant civil service laws.” Doe, 753 F.2d at 1098. The plaintiffs have submitted sworn
declarations not only from themselves, but from several other victims of the
polygraph device, detailing the unprofessional and unlawful behavior of the
defendants’ polygraph examiners (particularly those within the Secret Service).[21] See Declaration of
John Doe “A” at ¶5 (dated September 29, 2000), attached as Exhibit “13”;
Declaration of John Doe “B” at ¶¶4-5 (dated September 28, 2000), attached as
Exhibit “14”; Declaration of John Doe “D” at ¶¶3-7 (dated September 28, 2000),
attached as Exhibit “15”.[22]
As the district court observed in U.S.
v. Galbreth, 908 F.Supp. 877 (D.N.M. 1995):
the validity of polygraph
results in a particular case is absolutely dependent on certain conditions such
as a properly conducted examination by a competent examiner. Where the
examination is not properly conducted by a competent examiner, the validity of
the entire testing procedure and hence the result of the procedure, is seriously
called into question.
Id. at 881-82.
Of course, the burden of proving
nonreviewability is on the agencies involved. See Dunlop v. Bachowski,
421 U.S. 560 (1975); Abbott Laboratories v. Gardner, 387 U.S. 136
(1967).
A. The Privacy Act Does Not Preclude The
Plaintiffs’ APA Claims
It is well-settled that the Privacy Act
“does not authorize relitigation of the substance of agency decisions.” Douglas,
33 F.3d at 785. See e.g., Pellerin v. Veterans Administration,
790 F.2d 1553, 1555 (11th Cir. 1986); White v. CSC, 589 F.2d 713, 715
(D.C.Cir. 1978); Castella v. Long, 701 F.Supp. 578, 584-85 (N.D.Tex.), aff’d
862 F.2d 872 (5th Cir. 1988). “If an agency errs, the right response is not to
rewrite history, changing the record in Orwellian fashion to pretend that it
reached some other conclusion. The right response to error is to correct the
disposition under the Administrative Procedure Act.” Douglas, 33 F.3d at
785.[23]
The Privacy Act, in fact, permits the
defendants to freely disseminate the results of their polygraph examinations
throughout the federal government thereby stigmatizing their ability to secure
employment in their chosen professions. How then, as the defendants argue,
could this be a statute that actually offers protection? Indeed, even accepting
the plaintiffs’ assertion that the polygraph results themselves are inaccurate
(the government argues the technical observation that it is accurate to say the
plaintiffs failed the polygraph, but does not address whether the reason why
they failed is false or reliable), the Privacy Act does not even prohibit the
defendants from disseminating false
information to other federal agencies! Section (e)(6) of the Privacy Act, which
requires an agency to make reasonable efforts to ensure a records’ accuracy
prior to dissemination, contains an exception for the federal government. See
5 U.S.C. § 552a(e)(6).[24]
The defendants fail to cite even one case
that is controlling over this Court or supportive of their argument. This is
simply because the argument must fail.[25]
B. The Civil Service Reform Act Does Not Preclude The Plaintiffs’ APA Claims Challenging
The Polygraph Process[26]
Under the framework established by the
Civil Service Reform Act (“CSRA”), Pub.L.95-454, 92 Stat. 111 (codified as
amended in scattered sections of 5 U.S.C.), the Office of Special Counsel
(“OSC”) is charged with investigating “prohibited personnel practices.” 5
U.S.C. § 1206(a)(1). This includes “an appointment”. Id. at 2302(a)(2).
Although the majority of cases interpreting the CSRA have involved
employee-employer relationships, see e.g., Barnhart v. Devine,
771 F.2d 1515 (D.C.Cir. 1985); Veit v. Heckler, 746 F.2d 508 (9th Cir.
1984); Williams v. IRS, 745 F.2d 702 (D.C.Cir. 1984); Carducci v.
Regan, 714 F.2d 171 (D.C.Cir. 1983), admittedly, however, the statute on
its face appears to include applicants as well. 5 U.S.C. § 2302(a)(2). But
cf. Klaskala v. U.S. Dep’t of Health and Human Services, 889 F.Supp.
480, 484 (S.D.Fla. 1995)(CSRA not applicable because applicant not employee).[27] Because of the apparent
applicability of the CSRA to applicants, the defendants argue that the
plaintiffs’ APA claims are precluded. See Defs’ Memo at 6-10. This is
not necessarily true.
First, though apparently litigated time
and time again, it is certainly well-settled in this Circuit that the CSRA
precludes any claims brought against federal officials under Bivens v. Six
Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388
(1971). See Bush v. Lucas, 462 U.S. 367, 367 (1983)(refusing to
create Bivens remedy for First Amendment violation arising from
employment relationship for which Congress provided remedial scheme); Spagnola
v. Mathis, 859 F.2d 223, 224 (D.C.Cir. 1988)(Bivens claim
unavailable even if CSRA provides no remedy). Though tempting as it is, the
plaintiffs herein have not yet named any specific individuals in an attempt to
pursue Bivens remedies, if any exist. Therefore, any analysis
interpreting the balance between the CSRA and the APA must take this
significant distinction into consideration.
In any event, the CSRA does not preclude
the plaintiffs’ claims because it (1) does not apply to applicants, as already
mentioned, and (2) the defendants are estopped from arguing that administrative
remedies have not been exhausted. Moreover, even should the defendants not be
estopped, the plaintiffs’ claims can still proceed because exhaustion would be
futile. Finally, the CSRA does not apply to the conduct of the defendants’
polygraphers as no “prohibited personnel action” took place within the scope of
the statute.
1. The
Defendants Are Estopped From Arguing The Plaintiffs Failed To Exhaust Administrative Remedies
Assuming that the CSRA does apply and the
plaintiffs were required to file claims with the OSC, the defendants
intentionally misled them by deliberately failing to inform them of available
administrative remedies. In fact, the defendants specifically indicate in the
letters rescinding the employment offers that no further avenues exist to
pursue an appeal. Compare Exhibit “16” (examples of letters received by
plaintiffs. In fact, even where the conduct of the USSS polygraphers were
directly challenged and allegedly reviewed, the USSS still failed to notify
John Doe#6 of any available remedies) with Exhibit “17” (letter received from
U.S. Marshals Service by John Doe “C” indicating appeal could be taken to Merit
System Protection Board). As a result, the defendants are estopped from
claiming the CSRA precludes APA review.
Estoppel is “an equitable doctrine invoked
to avoid injustice in particular cases.” Heckler v. Community Health
Services, 467 U.S. 51, 59 (1984). Although whether estoppel is available
against the government is an unresolved question, “federal cases have indicated
that circumstances giving rise to estoppel can create a property interest where
one would not otherwise exist.” Klaskala, 889 F.Supp. at 486, citing
Reserve, Ltd. v. Town of Longboat Key, 17 F.3d 1374, 1380 (11th Cir.
1994), cert. denied, 513 U.S. 1080 (1995).[28]
Courts which have considered the revocation of
federal employees have articulated the following estoppel test: (1) The party
to be estopped must know the facts; (2) he must intend that his conduct shall
be acted upon or must so act that the party asserting the estoppel has a right
to believe it is so intended; (3) the latter must be ignorant of the true
facts; (4) he must rely on the former’s conduct to his injury; and (5) he must
establish affirmative misconduct on the part of the government.
Klaskala, 889 F.Supp. at 487
(citations omitted). In National Treasury Employees Union v. Reagan, 663
F.2d 239 (D.C.Cir. 1981), several federal appointees challenged the loss of
their jobs due to the imposition of a hiring freeze. Although the Court held
that estoppel was not present based on the general facts of a class action
suit, it remanded the individual estoppel and Fifth Amendment claims back to
the district court to allow a determination as to whether viable causes of
action could be established. Id. at 249 fn. 17. The issue was left open
for the plaintiffs to explore through discovery.
In applying the estoppel test to the
plaintiffs’ circumstances, the requirements are sufficiently satisfied. First,
the FBI, DEA and USSS - the parties to be estopped - knew the facts. Indeed,
they were the only entities that possessed all the facts. Second, by writing
the plaintiffs and telling them they had no further avenues of recourse
available to pursue employment, the defendants intended for their conduct to
cause the plaintiffs to rely on those statements. Third, the plaintiffs were
all unaware of the possibility of OSC review, if it even does exist. And it
certainly does not for those who applied to the FBI as the FBI is exempt. 5
U.S.C. § 2302(a)(2)(C)(ii). Fourth, the plaintiffs relied on the defendants’
statements to their detriment. They all lost out on their employment offers,
and subsequent employment opportunities with other agencies. Finally, the
plaintiffs have alleged affirmative misconduct on the part of the government
throughout their Complaints. See FAC at passim.
Although it may be true that these are
difficult claims to raise, this should not dissuade this Court from following
the lead of the D.C. Circuit and the Southern District of Florida and permit
the claims to proceed through discovery before a final determination is made on
this specific issue. See Klaskala, 889 F.Supp. at 489 (“the Court
is not inclined to dismiss [plaintiff’s] Fifth Amendment or Estoppel claims at
this early stage of the proceedings”).
2. The Plaintiffs Were Not Required To Exhaust Or Pursue
Administrative Remedies
Through The CSRA As Such Efforts Would Be Futile
“The general rule in this circuit is that
the exhaustion requirement ‘may be waived in only the most exceptional
circumstances.’” Communications Workers of America v. AT & T, 40
F.3d 426, 432 (D.C.Cir. 1994)(quotation omitted). “This court has recognized a
discretionary exception to the exhaustion requirement where resort to
administrative remedies ‘would be futile because of the certainty of an adverse
decision.” Id., quoting, Randolph-Sheppard Vendors of America
v. Weinberger, 795 F.2d 90, 105 (D.C.Cir. 1986).
The government has accurately noted that
the FBI is exempt from the CSRA.
5 U.S.C.
2302(a)(2)(C)(ii); Defs’ Memo at 7. Therefore, should the government’s CSRA
argument prevail, there is absolutely no relief available through the OSC as an
administrative remedy. Resort would be futile.[29] Also, “an adverse decision
can also be certain if an agency has articulated a very clear position on the
issue which it has demonstrated it would be unwilling to reconsider.” Communications
Workers of America, 40 F.3d at 432. The obviously entrenched positions of
the DEA and USSS clearly demonstrate the futility of any administrative
exercise to challenge their polygraph decisions. See Exhibit “16”.
3. The
Plaintiffs’ Challenge To The Conduct Of The Defendants’ Polygraph Examiners Is Not
Precluded By The CSRA As The Polygraphers Did Not Take Or Fail To Take A Personnel
Action Involving The Plaintiffs
The plaintiffs have alleged that the
defendants’ polygraphers were not competent or ethical, that their conduct fell
outside accepted standards and that they were biased against certain categories
of applicants. See e.g., FAC at ¶¶229, 238,246. These claims are
not precluded by the CSRA, and can be addressed through the APA as they are not
“prohibited personnel actions” as contemplated within the CSRA.[30]
The defendants aptly indicate that the
only section of the CSRA that can possibly apply is 5 U.S.C. 2302(b)(11) which
states:
(b) Any employee who has
authority to take, direct others to take, recommend, or approve any personnel
action, shall not, with respect to such authority -
****
(11) take or fail to take
any other personnel action if the taking of or failure to take such action
violates any law, rule, or regulation implementing, or directly concerning, the
merit system principles contained in section 2301 of this title.
Even assuming that this section prohibits
the plaintiffs from challenging the actual decision of the respective defendant
not to hire them based on a violation of an agency regulation, this has no
application to the conduct of individual polygraph examiners who have
absolutely no authority whatsoever in the decision-making process of personnel
actions. “Personnel action” is specifically defined as “an appointment”. Id.
at
§
2302(a)(2)(A)(i). That is, whether or not the applicant is hired or not.
Section (b)(11) only applies to an employee who “has authority to take, direct
others to take, recommend, or approve” an appointment.
Polygraph examiners, who are located
throughout the country in the defendants’ field offices, do not fall within
this category of employees. They do not possess the authority to take steps to
hire an applicant. They do not possess authority to direct others to take steps
to hire an applicant. They do not recommend an applicant should or should not
be hired. Nor do they approve the hiring of an applicant. They administer a
polygraph examination and report their findings. That is it. The employees who
do possess the relevant authority are at the headquarters of the defendant
agencies. The polygraph results are always reviewed by the decision-making
employees in Washington, D.C., and it is they who decide whether the applicant
deserves “an appointment”. In fact, the decision-makers could disregard the
polygraph examiner’s findings whenever they want. In fact, this is what
occurred in 1994 when the FBI disregarded the polygraph results when half of
its recruitment class failed the examination. See FAC at ¶50.
Even if the CSRA precludes the plaintiffs’
APA claims to challenge the decision not to hire them, the plaintiffs are
nonetheless fully able to challenge the conduct of the defendants’ polygraphers
to arrive at a conclusion that they showed “deception” on their polygraph
examinations. This is the exact scenario that was addressed by the United
States Court of Appeals for the Federal Circuit in Frederick v. Department
of Justice,
73 F.3d 349
(Fed.Cir. 1996). In Frederick, an Immigration & Naturalization
Service (“INS”) Patrol Agent in Charge successfully defeated his suspension
because the filing of his unfavorable recommendation evaluation regarding a
trainee was not considered a “personnel action” under the CSRA. Id. at
354. The evaluation recommended that the trainee not be retained by the INS,
which is certainly a serious and significant personnel matter. Indeed, the
trainee resigned from the INS. Id. at 351. However, the evaluation “did
not effectuate any such action and had no binding effect on the agency.” Id.
at 353.
In the instant matter, the polygrapher’s
report does not even constitute a recommendation. There is no recommendation
within a polygrapher’s report. See Exhibit “18” (FBI polygraph report of
John Doe#3, which is reflective of all agencies). Instead, it merely offers the
polygrapher’s opinion of the results of the examination as to whether deception
has been found. It does not effectuate any action, and it certainly has no
binding effect. The CSRA:
specifically
distinguishes between those who recommend
personnel actions and those who take or
fail to take personnel actions. Id. at 2302(b)-(b)(8). In terms of
being within the scope of the [CSRA], the act applies to those who have the
authority to recommend a personnel
action. Id. 2302(b). However, the [CSRA] under section 2302(b)(8) only
attaches liability to those who take or
fail to take a personnel action.
Frederick, 73 F.3d at 354 (emphasis
original).[31] As with Frederick,
the polygraph examiners who administered the polygraphs examinations to the
plaintiffs “did not take or fail to take a personnel action.” Id.
Therefore, the conduct of the polygraphers is reviewable by this Court under
the APA.
C. Plaintiffs Have Demonstrated That There Is A Threat Of Substantial
And Immediate
Irreparable Harm
The defendants concede that the plaintiffs
can demonstrate an “irreparable injury” by alleging prospective violations of a
constitutional right. See Defs’ Memo at 10. They challenge, however,
whether the plaintiffs have alleged “facts that show a ‘substantial and
immediate’ threat.” Id. However, the plaintiffs’ sworn declarations and
First Amended Complaint offer more than enough evidence that the defendants’
actions have created actual “substantial and immediate” irreparable injuries. See
FAC at passim; Croddy Decl.; John
Doe#1 Decl.; John Doe#2 Decl.; John Doe#3 Decl.; John Doe#4 Decl.; John Doe#5
Decl.; Moore Decl. The terms “substantial” or “immediate” are not defined by
the cases relied upon by the defendants. Presumably, the terms are defined by
their common usage.
As described throughout this pleading, the
plaintiffs’ have already lost out on subsequent federal employment
opportunities as a result of the defendants’ actions arising from the polygraph
examination.[32] How such a fact would not
constitute “substantial”, i.e., the inability of an individual to pursue their
chosen field of profession, is inexplicable. See supra at 19-20. Moreover, not only has harm already occurred, but
the plaintiffs continue to apply for federal employment. Thus, the potential
for prospective harm in this case will always be immediate. To accept the
defendants’ contorted standing argument would eliminate the plaintiffs’ ability
to ever challenge the defendants’ actions, and is contrary to settled law. See
supra at 17-18.
D. Rescinding Employment Offers Is Not Within
Agency Discretion If Undertaken
In Violation Of Agency Regulations Or Policies
In order to escape proper judicial review
of their actions the defendants seek to entangle this Court into a confused
description of exactly what aspect of the plaintiffs’ polygraph examinations
and employment decisions is being challenged. The plaintiffs are not attempting
and need not attempt to embroil this Court into the “discretionary
determinations of who should or should not be hired by the FBI, the Secret
Service or DEA.” See Defs’ Memo at 16. Nor is this an effort to attain
review of individual suitability determinations within the discretion of the
defendants. It is, however, the pursuit of claims calling into question the
defendants’ failure to follow existing agency regulations and policies that
have led to harmful results for the plaintiffs. This is exactly the type of
challenge envisioned and permitted by the APA. 5 U.S.C. § 706.
The defendants rescinded the plaintiffs’
conditional job offers based solely
on the results of their polygraph examinations. It is a simple equation. The
plaintiffs were offered employment with the defendants. The plaintiffs passed
all aspects of the application processes. The plaintiffs then allegedly failed
their polygraph examinations. Then the defendants rescinded their offers of
employment. Each plaintiff has so alleged this factual pattern, and for
purposes of this Motion said allegations must be accepted as true.
Moreover, each defendant has explicitly
indicated that it does not render suitability determinations based solely on
polygraph results. See Exhibit “19” (FBI letter to John Doe#1); and FAC
at ¶59 (noting DEA Director congressional testimony); Exhibit “20” (noting
Secret Service statement to Washington
Post). Yet if the plaintiffs’ allegations are true - which, again, they are
for purposes of this Motion - then the defendants have failed to follow their
own regulations and policies, and this Court has the jurisdiction and authority
to review the plaintiffs’ challenges. Beyond even the legal requirement that
the plaintiffs’ statements must be true, the FBI’s own decision letters
unequivocally reveal that it was the polygraph alone that caused those
plaintiffs who applied to the FBI to have their employment offer rescinded. See
Exhibit “21” (FBI letter to Croddy).[33]
The defendants’ reliance on a series of
cases, none of which are outright controlling on this Court, where FBI
employees challenged their transfers does nothing to undercut the strength of
the plaintiffs’ position. Transfer decisions are nonreviewable based on the
discretionary authority clearly conveyed to the Attorney General, see 5
U.S.C. § 301, and the FBI regulations that explicitly indicate that transfers
are exempt from challenge. See
28 C.F.R. §
0.137; Bramley v. Webster, et al., 476 F.Supp. 351, 352-53 (E.D.Pa.
1979).[34] In transferring FBI
personnel from one field office to another, the FBI lawfully followed its own
regulations. In fact, there can be no dispute that FBI applicants explicitly
acknowledge they agree to be subject to transfer, thereby completely waiving any
legal right they have to challenge a later decision. However, rescinding
employment offers based solely on polygraph test results, which is what is at
issue herein, is explicitly inconsistent with the regulations and policies of
the defendants.[35]
Nor does the defendants’ reliance on Padula
v. Webster, 822 F.2d 97 (D.C.Cir. 1987) add any strength to its argument.
Indeed, Padula, which is binding precedent on this Court, does quite the
opposite by providing further support to the plaintiffs’ position that APA
review is appropriate and discovery is merited. Padula alleged that the FBI
refused to employ her as a special agent because she is homosexual. Id.
at 98. The D.C. Circuit Court of Appeals upheld the FBI’s argument that “the
challenged hiring decision is sheltered from APA review” because it was action
“committed to agency discretion by law.” Id. at 100. This bare
conclusion, which is all the defendants refer to it their brief, could lead one to conclude that the
plaintiffs’ polygraph challenges are also unreviewable. However, the analysis
that led the Court of Appeals to this conclusion unmistakably reveals that the
plaintiffs’ case permits this Court to review the defendants’ hiring decisions,
particularly because agencies must adhere to their adopted binding policies and
constitutional limitations. Id. at 100-01.
Additionally, a court can review what
might otherwise be discretionary hiring decisions when there exists judicially
manageable standards. Heckler v. Chaney, 470 U.S. 821 (1985).
“Judicially manageable standards may be found in formal and informal policy
statements and regulations as well as in statutes, but if a court examines
all these possible sources and concludes that there is, in fact, ‘no law to
apply,’ judicial review will be precluded.” Padula, 822 F.2d at 100, quoting
Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410
(1971)(citation omitted). This language in and of itself condones this Court’s
review of the defendants’ hiring practices following a failure of a polygraph
examination, particularly after permitting the parties to conduct discovery and
place all “possible sources” before it for consideration. Because the
defendants have adopted regulations and policies that have limited their
discretion, this Court should avail itself of the opportunity to review the
plaintiffs’ claims.
It is well settled that an
agency, even one that enjoys broad discretion, must adhere to voluntarily
adopted, binding policies that limit its discretion....In determining whether
an agency’s statements constitute “binding norms,” we traditionally look to the
present effect of the agency’s pronouncements. Statements that are merely
prospective, imposing no rights or obligations on the respective parties, will
not be treated as binding norms....We also examine whether the agency’s
statements leave the agency free to exercise its discretion. Pronouncements
that impose no significant restraints on the agency’s discretion are not
regarded as binding norms. As a general rule, an agency pronouncement is
transformed into a binding norm if so intended by the agency....and agency
intent, in turn, is “ascertained by an examination of the statement’s language,
the context, and any available extrinsic evidence.”
Padula, 822 F.2d at 100 (citations
omitted). The district court allowed Padulla to first conduct discovery in
order to identify all relevant policies, regulations, and statutes. The Court
of Appeals reviewed relevant FBI statements - in the form of letters sent to
various law schools - in order to determine whether the FBI had established a
binding policy. Id. at 101. That the Court of Appeals determined the FBI
had not established a binding policy that limited its discretion in Padulla,
of course, is of no relevance to the issue now before this Court. Id.
Even without discovery, the plaintiffs have sufficiently demonstrated that the
defendants have, in fact, adopted binding policies that significantly limit
their discretion in how they utilize polygraph results to affect hiring
decisions. See e.g., Exhibit “19”; Exhibit “20”; FAC at ¶59.
The plaintiffs have amply demonstrated
that the defendants are not entitled to dismissal of the APA claim at this
stage, and that discovery is appropriately warranted.
E. It Would Be Premature For This Court To Render A Substantive
Decision Regarding
Whether The Defendants’ Preemployment Polygraph Program Is Arbitrary, Capricious, An Abuse
Of Discretion Or Otherwise Unlawful Under
The APA
In what likely amounts to its boldest
statement, even if APA review were available to this Court, the defendants wish
to make it clear after setting forth four pages of conclusory statements and
legal opinions that their preemployment polygraph examination policies are in
no way arbitrary, capricious, an abuse of discretion or otherwise unlawful. See
Defs’ Memo at 16-20. This is somewhat like putting the cart before the horse.
Adoption of the defendants’ argument would, of course, completely eviscerate
the notion of American justice and hurl us back to the medieval days where the
King could do no wrong simply because he said so. Obviously, this is not the
present state of the American judicial system. Given that APA review is
available, the plaintiffs are entitled to present their side following the
completion of discovery.
Notwithstanding the applicability of the
simplest notions of justice, the defendants again attempt to confuse the Court
by dragging this case into the no-mans land of security clearance challenges. Id.
at 18-19. Because the defendant agencies hold national security
responsibilities, and the plaintiffs would ultimately be required to hold
security clearances in order to serve in the positions for which they applied,
the government believes this relieves the Court of its ability to rule against
it. Id. at 18. This case, however, does not involve security clearances,
much less challenges thereto. This case involves suitability determinations in
the preemployment context, which are separate and distinct from security
clearance determinations. Had the plaintiffs been denied security clearances,
even as applicants, they would have been afforded far more due process than
what they have thus far been accorded, which amounts to nothing. See
Executive Order 12,968,
60 Fed.Reg.
40245 (August 7, 1995)(establishing appellate framework to challenge denial of
security clearances).
Moreover, that other courts, whether
federal or state, may have adjudicated similar challenges involving
preemployment polygraphs in favor of the government is insufficient to justify
this Court’s blanket rejection - particularly without the benefit of discovery
- of the plaintiffs’ claims. There is not one case that the plaintiffs - nor
apparently the defendants - are aware of that serves as precedent controlling
this Court’s unfettered ability to arrive at its own decision regarding the
allegations expressed herein.[36]
Finally, the defendants’ bold assertion
that “an agency’s decision to rely on a polygraph examination in making a
determination of an application for employment cannot be second-guessed by the
courts” significantly misstates the breadth of the law. See Defs’ Memo
at 18. There is absolutely no such prohibition, and the fact that the
defendants made no attempt to thoughtfully expound upon their presumed legal
basis for such a blanket pronouncement proves it.[37]
III. THE
PLAINTIFFS HAVE SUFFICIENTLY PLED THAT THE DEFENDANTS
IMPERMISSIBLY INFRINGED UPON THEIR CONSTITUTIONALLY
PROTECTED PRIVACY RIGHTS
The plaintiffs have sufficiently pled
their challenges to the specific actions of the defendants, and in particular
the USSS, to include within their polygraph examinations questions unrelated to
the employment position at issue. These questions infringed the plaintiffs’
constitutional rights to privacy.
The defendants accurately note that a
single panel of the D.C. Circuit Court of Appeals has expressed “grave doubts
as to the existence of a constitutional right of privacy in the nondisclosure
of personal information.” American Federation of Government Employees et al.
v. Dep’t of Housing and Development et al., 118 F.3d 786, 791 (D.C.Cir.
1997)(“AFGE”).[38] However, the panel declined
to so conclude because it also recognized that the right has been implicitly,
if not explicitly, recognized by courts throughout the United States, including
the Supreme Court under the right circumstances. The Supreme Court in Whalen
v. Roe, 429 U.S. 589, 599 (1977), referenced in dicta that a individual
right to privacy exists “in avoiding disclosure of personal matters....”
Similarly, in Nixon v. Administrator of General Services, 433 U.S. 425,
457 (1977), the Court stated that “[w]e may agree with appellant that, at least
when Government intervention is at stake, public officials, including the
President, are not wholly without constitutionally protected privacy in matters
of personal life unrelated to any acts done by them in their public capacity.” See
also California Bankers Ass’n v. Shultz, 416 U.S. 21, 85-86
(1974)(Douglas, J., dissenting)(“[W]hen ... the Government gets large access to
one’s beliefs, ideas, politics, religion, cultural concerns, and the like - the
Act should be ‘narrowly drawn’ ... to meet the precise evil.”).
In fact, the D.C. Circuit has suggested in
dicta on numerous occasions that there exists a constitutional right to privacy
in personal information. See e.g., United States v. Hubbard, 650
F.2d 293, 304-06 (D.C.Cir. 1980)(citing Whalen for proposition that
there are constitutionally protected spheres of personal privacy); Doe v.
Webster, 606 F.2d 1226, 1238 n.49 (D.C.Cir. 1979)(suggesting that right to
privacy could be violated by government’s collection and dissemination of criminal
information); Utz v. Cullinane, 520 F.2d 467, 482 n.41 (D.C.Cir.
1975)(“[I]t would appear that there is another constitutional right which might
be impaired by the dissemination of preconviction or post-exoneration arrest
data for other than law enforcement purposes - the right of privacy.”).
Furthermore, notwithstanding the panel
discussion in AFGE, the Court also recognized that several sister
circuits have concluded “there is a constitutional right to privacy in the
nondisclosure of personal information.” Id. 118 F.3d at 792. See e.g.,
United States v. Westinghouse Electric Corp., 638 F.2d 570, 577-80 (3d
Cir. 1980)(constitutional right in privacy of medical records); Plante v.
Gonzalez, 575 F.2d 1119, 1132, 1134 (5th Cir. 1978), cert. denied,
439 U.S. 1129 (1979)(identifying a “right to confidentiality” and holding that
balancing is necessary to weigh intrusions). See also Barry v. City
of New York, 712 F.2d 1554, 1559 (2d Cir.), cert. denied, 464 U.S.
1017 (1983)(applying intermediate standard of review to uphold a financial
disclosure requirement); Hawaii Psychiatric Soc’y Dist. Branch v. Ariyoshi,
481 F.Supp. 1028, 1043 (D.Hawaii 1979)(disclosure of psychiatric records
implicates constitutional right of confidentiality); Mckenna v. Fargo,
451 F.Supp. 1355, 1381 (D.N.J. 1978)(constitutional right of privacy in
psychological evaluations).
The defendants’ reliance on Willner
is somewhat misplaced and misleading. Willner, of course, pertained to
the issue of urine testing for applicants to the Department of Justice. Id. 928 F.2d at 1186.[39] While the case addressed
right to privacy issues, it did so primarily in the specific context of the
Fourth Amendment’s protection from unlawful search and seizure, which of course
is not at issue here. Id. at 1187. Much to do is made about the fact
that the plaintiffs “knew in advance that they would be subject to
extraordinarily intrusive background examinations and a polygraph examination.”
See
Defs’ Memo at 41.[40] Notwithstanding the
defendants’ conclusory allegation, there is no evidence of this in the record.
But more importantly, while the plaintiffs would not argue they were not aware
of the requirement to undertake a polygraph examination in general, that is not
what is at issue. The plaintiffs were certainly not aware that specific
personal questions regarding their sex lives, lawful sexual interests, ancient
criminal or drug conduct, or medical or psychological histories that fell
outside of the application requirements (i.e., information that was not required
to be revealed in their applications) would ever be asked during the
examination.[41] This again is a question of
fact that necessitates discovery before the government can defeat the
plaintiffs’ well-pled claims.
A. The Defendants Have Violated The Plaintiffs’
Privacy Because Their Questions
Were Not Reasonably Related To The Employment Position
Being
Sought
The defendants actually intimate that it
is entirely permissible for the government to inquire into the private lives of
an applicant with respect to whether cheating on a girlfriend has occurred or
even if an individual lawfully has read or watched pornography (much of which
is now stigmatized by society). See Defs’ Memo at 39 n.10. This argument
extends far beyond any permissible conduct by the government.[42]
Of course, pre-employment polygraph
examinations are directed at suspicionless conduct. At the time the defendants
administer the examination to an applicant-hire, they typically would have no
knowledge of any potential wrongdoing or inappropriate conduct, past or
present, that would be of concern (otherwise the applicant would not have been
conditionally hired). In arguing that questions regarding certain subjects
would render the polygraph examination unconstitutional, as do the plaintiffs
here, an analogy can be drawn to the D.C. Circuit’s conclusion that
suspicionless urinalysis of Justice Department personnel violated the Fourth
Amendment unless the individuals were engaged in drug prosecutions. Harmon
v. Thornburgh, 878 F.2d 484, 496 (D.C.Cir. 1989), cert. denied, ___
U.S. ___, 110 S.Ct. 865 (1990).
As one commentator noted:
the
most serious threat posed by the use of the instrument is the invasion of the
personal liberty of the worker subjected to interrogation.... It is the
character of the interrogation itself - focusing on past acts and associations,
ferreting out attitudes, opinions, and beliefs about sex, politics, and
religion - which presents the critical threat to individual integrity by the
invasion of personal privacy.
Herman, Privacy, The Prospective Employee and
Employment Testing: The Need to Restrict Polygraph and Personality Testing,
47 WASH.L.REV. 73, 153-54 (1971).
In fact, this is not the first time that
polygraph examinations have been the subject of a constitutional right to
privacy challenge similar if not identical to the one here. In Long Beach
City Employees Association, 41 Cal.3d 937, 944, 946, the California Supreme
Court found that the standard polygraph test is “far more intrusive than a
series of questions related directly to the employee’s job performance”, and
that when used for pre-employment screening purposes, “‘fishing expeditions’
and shockingly intrusive questions have been reported.” The Supreme Court of Washington similarly held that certain
standards regarding the use of polygraph examinations must be created. See
O’Hartigan v. Department of Personnel, 118 Wn.2d 111, 821 P.2d 44
(1991). Although the use of the polygraph device for screening purposes in
general was not deemed to have violated an applicant’s constitutional right to privacy, the Court warned
that “[b]y authorizing the use of the polygraph in this specific setting, we
are not authorizing a fishing expedition into the job applicant’s personal
matters. Nor do we authorize indiscriminate and standardless questioning by the
examiner.” Id. at 120. Thus, the Court required the State to “adopt
guidelines” to be used for applicant screening. Id. at 121.
Perhaps of greater relevance is Thorne
v. El Segundo, 726 F.2d 459 (9th Cir. 1983), cert. denied, 469 U.S.
979 (1984), which addressed a police officer applicant’s argument that a
polygraph examination invaded her personal privacy. During the examination,
just as alleged herein, the examiner asked personal questions concerning
Thorne’s sexual activity, former relationships, and a miscarriage she had
suffered. She was subsequently disqualified from the list of applicants. In
addressing her claims, the Ninth Circuit found that Thorne had a
constitutionally protected right of privacy under Whalen that was
implicated by the polygrapher’s questions. Thorne, 726 F.2d at 469. The
government failed to show that the means it had used were narrowly tailored to
meet a legitimate interest. There was no showing that “private, off-duty,
personal activities of the type protected by the constitutional guarantees of privacy
and free association have an impact” on job performance. Id. at 471. See
also Los Angeles Police Protective League et al. v. City of Los Angeles
et al., 42 Cal.Rptr.2d 23, 25 n.2 (Cal.App.2 Dist. 1995)(polygraph
questions standardized and “candidates not asked about personal matters such as
sexual preferences, for example, which are irrelevant to their jobs.”); Texas
State Employees Union et al., 746 S.W.2d 203 (department’s polygraph
policies violate privacy interests protected under state constitution).
The questions asked of the plaintiffs
violated their constitutional right to privacy.[43]
IV. THE
PLAINTIFFS ARE ENTITLED TO DISCOVERY[44]
As the plaintiffs have sufficiently
demonstrated that the defendants’ Motion to Dismiss should be denied, this
Court should permit them the opportunity to immediately commence discovery.
Courts addressing the type of case set forth herein permit plaintiffs to
commence discovery as a routine matter. See e.g., O’Donnell, 148
F.3d at 1139; Orange, 59 F.3d at 1275; Kartseva, 37 F.3d at 1530.
Furthermore, because most of the evidence relating to the plaintiffs’ claims
are “likely to be exclusively in the possession of the government, it would
seem appropriate to accord [plaintiffs] the discovery necessary to this issue.”
Britt v. Naval Investigative Service, 886 F.2d 544, 551 (3d Cir. 1989).
There have been several challenges, mostly within
the state court systems, across the United States to challenge the use of
polygraph examinations in a civil setting.[45] The legal challenges
overlap to some extent with those now before this Court. Some have been
successful, others have not. Notwithstanding the end results, the one primary
commonality is of the most relevance: discovery has invariably been routinely
permitted to allow plaintiffs the opportunity to present their full case before
final judicial adjudication has occurred. See e.g., Anderson, 668
F.Supp. 441 (district court held trial to determine whether preemployment
polygraph program was constitutional); Fraternal Order of Police Lodge No. 5
v. City of Philadelphia, 118 Pa.Cmwlth. 132, 546 A.2d 137 (1988)(testimony
permitted in challenge to preemployment polygraph program).
Of course, the fact that this is a
challenge against a preemployment polygraph policy is but merely the narrow
description of the matter. In its most basic form this lawsuit involves a
constitutional challenge under the Fifth Amendment and an attack upon the
conduct of federal agencies. These types of cases routinely require discovery
in order to allow a court to fairly and properly adjudicate the claims of the
parties. See e.g. Bishop, 426 U.S. at 343 (discovery permitted
for 5th Amendment liberty interest challenge); Nunez et al. v. City of Los
Angeles et al., 147 F.3d 867, 870 (9th Cir. 1998)(discovery permitted in
5th Amendment attack on police department promotion practices); Padula,
822 F.2d at 99 (discovery permitted for constitutional claim involving FBI
hiring practices); Mack v. United States et al., 814 F.2d 120, 124 (2d
Cir. 1987)(discovery permitted for 5th Amendment challenge to FBI termination);
Hogue, 791 F.2d at 1321 (bench trial on liberty interest claims); Bailey
v. Kirk, 777 F.2d 567, 569 (discovery permitted on liberty interest
claims); Dressler v. Jenne, 87 F.Supp.2d 1308, 1310 (S.D.Fla.
2000)(discovery permitted in constitutional challenges to police officer’s
termination); Dziewior, 715 F.Supp. at 1420 (discovery permitted in
constitutional claims involving polygraph challenges); See also Hogarth
v. Thornburgh et al., 833 F.Supp. 1077, 1080 (S.D.N.Y. 1993)(discovery
permitted in termination discrimination claim against FBI).
The plaintiffs have numerous expert
witnesses available - including some who have held positions within the defendant
federal agencies - who can and will provide testimony concerning, among other
topics, the unreliability of the polygraph, the stigmatization caused by a
false-positive reading and the unprofessional, and oftentimes incompetent,
conduct displayed by the defendants’ polygraphers. Additionally, the government
has in its possession relevant information that would be crucial to any
judicial determination including, but not limited to, internal regulations and
policies, polygraph studies and research.
The plaintiffs are legally entitled to
present this information to the Court for its consideration prior to any final
judgment being issued.
CONCLUSION
More than a quarter century ago, the D.C.
Circuit Court of Appeals opined that it “cannot, absent the clearest statement
of Congressional policy, impute to Congress an intent to authorize the FBI to
damage the reputation of innocent individuals in contravention of settled
common law principles.” Tarlton v. Saxbe, 507 F.2d 1116, 1122 (D.C.Cir.
1974). Since this ruling one can rest assured that Congress has never taken
that affirmative step whether for the FBI or any other federal agency. Yet, the
preemployment polygraph policies of the FBI, DEA and USSS inflict such damage
and more by falsely tainting the plaintiffs as liars, thereby precluding them
from gaining employment in their chosen professions within federal law
enforcement. As a result, the defendants have violated the plaintiffs’
constitutional, statutory and regulatory rights.
Based on the foregoing, the defendants’
Motion to Dismiss should be denied, and the plaintiffs’ Cross-Motion for
Discovery should be granted.
Date: February 4, 2001
Respectfully
submitted,
_________________________
Mark
S. Zaid, Esq.
Lobel,
Novins & Lamont
D.C.
Bar #440532
1275
K Street, N.W.
Suite
770
Washington,
D.C. 20005
(202)
371-6626
CERTIFICATE
OF SERVICE
I HEREBY CERTIFY that on this 4th day of
February 2001, a copy of the foregoing Plaintiffs’ Opposition to Defendants’
Motion to Dismiss and 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]Although Roth dealt with the Fourteenth Amendment, the Supreme Court has consistently applied the same standards to determine deprivation of liberty without due process under both the Fifth and Fourteenth Amendments. See Paul v. Davis, 424 U.S. 693, 702 n.3 (1976).
[2]The Court of Appeals noted that “[t]he situation might be different if the United States had excluded White from all government employment. Here, however, the United States has not ‘condem[ed] a man to a suspect class and the outer darkness, without the rudiments of a fair trial.” White, 787 F.2d at 664. The plaintiffs, unlike White, have been placed in that dark suspect class by the actions of the defendants. Additionally, in analyzing whether the Civil Service Reform Act precluded Bivens claims, the D.C. Circuit also noted that “we do not suggest that the CSRA precludes the exercise of federal jurisdiction over the constitutional claims of federal employees and job applicants altogether.” Spagnola v. Mathis, 859 F.2d 223, 229 (D.C.Cir. 1988)(emphasis added).
[3]Furthermore, Judge Harris still examined the plaintiff’s allegations and noted, for example, that the plaintiff’s score on the ALJ examination “is not a matter of public record, which removes any hint or possibility of public stigma....” Gillet, 931 F.Supp. at 14. However, the defendants in this case have made the plaintiffs’ failed polygraph results publicly available to prospective employers through the routine uses in the Privacy Act. See 5 U.S.C. § 552a(b)(3). Additionally, the plaintiffs themselves must reveal the existence of the false and derogatory information when they pursue employment with law enforcement agencies.
[4]The cases cited by the government against this principle deserve nothing more than short shrift. The plaintiff in Perry, 781 F.2d 1294, lost because of the specific facts in his case (i.e., he had not been labeled with a stigma foreclosing future employment opportunities, had not even denied the truth of the accusations, and had already been given sufficient due process), not because an applicant lacked constitutional protections. Id. at 1300-1303. Koch v. Stanard, 962 F.2d 605 (7th Cir. 1992), also fails to support the government’s contention. It did not address the applicability of liberty interest protection, but asserted the plaintiffs had not proven publication of the derogatory information. Id. at 607. The plaintiffs in the current action have done so. Finally, neither O’Donnell, 148 F.3d 1126, or Doe, 753 F.2d 1092, in anyway support the defendants’ position. Both cases, which do not involve applicants, reiterate the standards to be applied in liberty interest cases. In fact, both cases support the argument that the defendants violated the plaintiffs’ due process liberty interests.
[5]The D.C. Circuit noted the Codd
decision constituted a “reaffirmation that the liberty clause creates an
independent constitutional right of action ... that government employees
defamed in the course of job termination can state a liberty interest claim
under the Paul standard notwithstanding the absence of independent
statutory job protection.” Doe,
753 F.2d at 1108 fn.15.
[6]Beyond even the fact that
the defendants would disseminate the false derogatory information to other
federal agencies when requested, they can also publicly disseminate the
polygraph results on their own accord. See Declaration of John Doe “E”
(dated February 2, 2001) at ¶9, attached as Exhibit “8” (FBI provided Army with
applicant’s polygraph results without being asked).
[7]Furthermore, each time the
plaintiffs apply for new positions in the law enforcement and intelligence
communities, they will be required to disclose the unfavorable results of their
polygraph examinations. See Croddy Decl. at ¶6; John Doe#1 Decl. at ¶13;
John Doe#2 Decl. at ¶12; John Doe#3 Decl. at ¶9; John Doe#4 Decl. at ¶9; John
Doe#5 Decl. at ¶7; FAC, at ¶¶224-26.
[8]In fact, the D.C. Circuit
has held that liberty interests have been infringed by far less damaging
actions than taken by the defendants in the instant case. In Old Dominion
Dairy Products, Inc. v. Secretary of Defense, 631 F.2d 953 (D.C.Cir. 1980),
the Court held that liberty interests “were infringed when the government
failed to renew a contract and branded the plaintiff as ‘nonresponsible’ due to
a ‘lack of integrity’ without affording the contractor a meaningful opportunity
to clear its name.” Id. at 963. The government’s mere questioning of a
plaintiff’s business integrity was also sufficient to impart a stigma of
dishonesty resulting in the reversal of a summary judgment dismissal of a
liberty interest claim. Conset Corporation v. Community Services
Administration, 655 F.2d 1291, 1295-96 & n.12 (D.C.Cir. 1981). See
also M.K. et al. v. Tenet et al., Civil Action No.
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99-0095 (D.D.C. Mar. 23, 2000)(RMU), at 20-21, attached as Exhibit “9” (allegations that CIA summarily discharged employee and forced another to retire thereby stigmatizing and impugning their reputations sufficient to defeat a motion to dismiss).
[9]Webster’s Dictionary defines “deceptive”, “deception”, “deceit” and “deceitful” as being “dishonest”, “misleading”, “leading astray from the truth” and “lying”.
[10]Throughout the defendants’
brief, the “arguments not only misstate [the plaintiffs’] allegations, but
demand that [they] meet a pleading standard that is higher than required at the
motion to dismiss stage of litigation.” Ervin & Associates, Inc. v.
Dunlap,
33 F.Supp.2d 6 (D.D.C. 1997). In Ervin, which the defendants cite in support of their Motion, the plaintiff, in fact, prevailed against the government’s Motion to Dismiss his claims under the Fifth Amendment and the APA, as should the plaintiffs here. Id. at 4.
[11]The defendants also imply
that failing a polygraph may only “diminish a plaintiff’s employability....” See
Defs’ Memo at 29. Accusing someone of lying on a federal application
constitutes defamation per se as it
alleges someone committed an act criminally punishable. See generally 50
Am. Jur. 2d LIBEL AND SLANDER § 136 (1999). In any event, the plaintiffs are
not pursuing separate tort claims based on the defendants’ defamation. Instead,
the defamation committed by the government was accompanied by a contemporary
and future loss of government employment, thereby implicating Fifth Amendment
liberty interests. Paul, 424 U.S. at 416-17. See also Doe,
753 F.2d at 1106-07 (“Paul explicitly recognized that the combination of
government defamation plus the failure to rehire or the discharge of a
government employee states a liberty interest claim even if the discharge
itself deprives the employee of no property interest protected by the fifth or
fourteenth amendments.”).
[12]And in state law enforcement in the case of John Doe#1. See FAC at ¶257; John Doe#1 Decl. at ¶¶10-13.
[13]Furthermore, the plaintiffs
have all alleged that they will be compelled to release the derogatory results
of the polygraph examinations on their own to prospective federal employers. See
supra n.7. Self-publication can also
satisfy the publication requirement. See
e.g., Thomas v. St. Luke’s Health Systems, Inc., 869 F.Supp. 1413,
1444 (N.D.Iowa 1994); McKinney v. County of Santa Clara, 110 Cal.App.3d
787, 797, 168 Cal.Rptr. 89 (1980); Grist v. Upjohn Co., 16 Mich.App.
452, 168 N.W.2d 389 (1969). The defendants have not argued otherwise.
[14]Nor does the Civil Service Reform Act. Spagnola v. Mathis, 859 F.2d 223, 229-30 (D.C.Cir 1988). The government has conceded this point. See Defs’ Memo at 9.
[15]That the defendants do not
provide applicants with adequate due process protections, particularly with
respect to polygraph results, is internally well-known throughout the
defendants, especially the FBI. In Congressional testimony presented in 1997, a
seasoned FBI Special Agent trained in polygraphy publicly accused the FBI of
“routinely falsely accusing job applicants of drug usage or drug dealing.” See
Opening Statement on Polygraph Screening of Supervisory Special Agent Dr. Drew
C. Richardson, FBI Laboratory Division, before the United States Senate
Committee on the Judiciary Subcommittee on Administrative Oversight and the
Courts on the 29th day of September 1997, at http://antipolygraph.org/hearings/senat.../richardson-statement.shtm,
attached as Exhibit “11”. Internal
memorandums released by the FBI on January 30, 2001, in response to a Freedom
of Information Act request, reveal Special Agent Richardson continued to
express concern regarding the “lack of due process and fairness to polygraph
examinees as it relates to the use of polygraph results.” See Exhibit
“12”.
[16]“Where a person’s good name, reputation, honor or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Roth, 408 U.S. at 573 (citations omitted). Indeed, “[w]hen protected interests are implicated, the right to some kind of prior hearing is paramount.” Id. at 570-71.
[17]“Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Cafeteria & Restaurant Workers, 367 U.S. at 895. “Due Process is flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
[18]Given the thrust of the FAC,
the plaintiffs would be entitled to Codd hearings even if they had
failed to specifically request one. “Courts are traditionally encouraged to
adjudicate the basic legal claim, even where the plaintiff has failed to seek
the precisely correct relief but has instead relied on a general request for
“other appropriate relief.” Doe, 753 F.2d at 1104. The fact the
plaintiffs specifically identified a request for a Codd hearing only
strengthens their claims, particularly in light of the fact that their
pleadings must be read liberally under Rule 12(b)(6).
[19]The “public disclosure” requirement necessitating a name-clearing hearing as established by Roth, 408 U.S. at 573, and elaborated upon in Codd, 429 U.S. at 627, is amplified by the fact that the defendants have placed documentation concerning the plaintiffs’ alleged unlawful acts and unsuitability in their Privacy Act system of records which are available to other federal and state agencies. See Bishop, 426 U.S. at 348. See also Paton v. La Prade, 524 F.2d 862, 868 (3d Cir. 1975)(expressing concern that other agencies may not understand even innocuous records and the mere existence of a file may at a later time become a detriment).
[20]In fact, expungement may still be appropriate where the records in question are in “closed” files and will be destroyed in a period of years. Doe, 812 F.2d at 741. Of course, in the instant matter, the derogatory records are in “open” files available throughout the government and will likely remain so throughout the lifetimes of the plaintiffs.
[21]Given that the professionalism
of the defendants’ polygraphers is most in doubt with the USSS, it is worth
noting that the USSS is the only one of the defendants that tape records its
polygraph sessions. Despite attempts under the Freedom of Information and
Privacy Acts dating back one year, plaintiffs have been unable to obtain copies
of these tapes or any documents from the USSS. On the other hand, the FBI and
DEA have been complying, albeit somewhat slowly, with their lawful requirements
to release the plaintiffs’ application files. These tape recordings of the
polygraph sessions would reveal a great deal regarding the (mis)conduct of the
USSS polygraphers.
[22]For the same reasons the majority of the plaintiffs are using pseudonyms, the plaintiffs also wish to publicly protect the identities of the non-party declarants. However, the plaintiffs have revealed the declarants’ identities to the defendants, which have agreed not to publicly reveal them. Of course, the plaintiffs will also provide this information to the Court should it so desire, although at this stage the actual identities of the declarants would not seem to bear on any particular issue.
[23]“[T]he Privacy Act does not
permit a court to alter documents that accurately reflect an administrative
action, no matter how contestable the conclusion may be.” Douglas,
33 F.3d at 785.
[24]The Seventh Circuit also
noted the limited utility of bringing a claim under section (e)(5) of the
Privacy Act, which requires agencies to reasonably maintain accurate records,
to challenge an inaccurate record now in the hands of another agency. “Section
(e)(5), after all, requires only that an agency act reasonably in ensuring that
the information it relies on in making employment decisions is accurate. It
might be hard to argue, for example, that it is unreasonable for an agency to
rely on a report from the nation’s leading crime-fighting agency, especially
when the FBI itself is in the best position to validate the information.” Perry,
759 F.2d at 1276. Thus, the fact that the defendants have concluded the
plaintiffs lied during their polygraph examinations will haunt them throughout
the federal government as no receiving agency will question the accuracy of the
sending agency’s determination. This assertion is beyond conjecture. The
plaintiffs have provided evidence it occurs. See Declaration of John Doe
“C”, attached as Exhibit “10”.
[25]The defendants do make
reference to Mittleman, 997 F.Supp. at 13 fn.30, where the Court made
passing reference to the possibility
that such an argument exists. However, it was never addressed by either the
parties or the Court, and therefore offers little, if any, support.
[26]The government has conceded the CSRA does not preclude the plaintiffs’ constitutional claims. See Defs’ Memo at 9.
[27]Additionally, it is worth noting the absence of any CSRA claim or analysis in Kartseva, 37 F.3d 1524, which offers similar factual and legal issues to the instant matter. Although the plaintiff worked for a contractor, she was fired because of being declared ineligible by the State Department which conceivably constituted a “prohibited personnel action” that infringed upon her rights to “an appointment”.
[28]The Supreme Court has ruled
that an estoppel claim cannot be asserted against the federal government for
the payment of money from the Public Treasury contrary to statutory
appropriation, but it left for “another day whether an estoppel claim could
ever succeed against the Government.” Office of Personnel Management v.
Richmond,
496 U.S. 414, 423-25 (1990).
[29]Additionally, another
exception that exists is “where administrative remedies are inadequate.” Randolph-Sheppard,
795 F.2d at 107. Given that no administrative remedies exist, plaintiffs would
assert this is synonymous with being “inadequate”. Thus, the defendants’
reliance on Steadman v. Governor, United States Soldiers’ and Airmen’s Home,
918 F.2d 963, 967 (D.C.Cir. 1990), must also fail. The CSRA remedy, if one even
exists, would not have been “fully effective”. See Defs’ Memo at 8.
[30]With respect to the FBI, the
decision not to hire John Does#1-4 and Eric Croddy solely because of their
failed polygraphs, which is a violation of FBI regulations and policies, is
completely reviewable under the APA because the FBI is exempt from the CSRA.
5 U.S.C. § 2302(a)(2)(C)(ii). The defendants argue otherwise without explanation through a generic citation to United States v. Fausto, 484 U.S. 439, 447, reh’g denied, 485 U.S. 972 (1988). However, Fausto is inapplicable as its analysis applies to Chapter 75 of the CSRA, whereas the instant matters pertains only to Chapters 22 and 23, which are fundamentally different provisions.
[31]Though Frederick dealt with 2302(b)(8), the pertinent language is identical to that of 2302(b)(11).
[32]The defendants continually confuse the distinction between the plaintiffs’ efforts to obtain federal or state and local law enforcement employment. See Defs’ Memo at 11. This case pertains only to the unconstitutional preclusions the plaintiffs have suffered with respect to federal law enforcement opportunities. Nor did the plaintiffs concede in any way that “law enforcement agencies generally make their own independent evaluation of applicants.” Id. at 11, citing Amended Complaint, ¶96 (this paragraph, in fact, pertains to a decision by a state, not a federal, agency). To the contrary, the plaintiffs provided evidence that federal agencies will oftentimes not conduct an independent evaluation and will only rely on the fact that an applicant failed another federal agency’s polygraph examination. See Declaration of John Doe “C”, at ¶¶6,8, attached as Exhibit “10”.
[33]The USSS and DEA do not
specifically identify the reasons for the withdrawal of the job offer in their
letters to disqualified applicants.
[34]Actually, the FBI is not
completely sheltered from judicial review of its transfer decisions. Although
the courts “should generally not undertake a full substantive review of the
decision ... [they] should still ensure that the complainant’s procedural rights
are satisfied.” Bullard v. Webster, 623 F.2d 1042, 1046 (5th Cir. 1980).
[35]In order to rely upon what would appear to be a favorable court decision on its face, the defendants improperly attempt to convert the plaintiffs’ challenge into a security clearance issue. See Defs’ Memo at 15. This case has absolutely nothing to do with a security clearance. If it did, the plaintiffs would have actually been accorded sufficient due process to challenge the defendants’ determinations. See infra at 42-43.
[36]The government’s assertion, see Defs’ Memo at 17, of the fact that the Employee Polygraph Protection Act, 29 U.S.C. § 2001 et seq. exempts the federal government from the broad prohibitions imposed on private employers may very well later factor into a future decision of this Court. However, at this early stage, the very existence of this statute cannot defeat the plaintiffs’ claims. For one thing, the statute has never been legally challenged, whether under the APA, the Constitution or any other available legal framework. Moreover, that the Congress may have permitted the federal government to use polygraph examinations does not imply that the defendants are permitted to abuse polygraph results, which is what the plaintiffs’ allege herein. With respect to the decisions of other courts, they too may play a role at a later date. Of course, the defendants conveniently neglect to alert this Court to those federal and state court decisions where a polygraph program was found to be unconstitutional. See e.g., Woodland v. City of Houston, 918 F.Supp. 1047 (S.D.Tex. 1996)(city’s preemployment polygraph program deemed unconstitutional); Texas State Employees Union et al. v. Texas Department of Mental Health and Mental Retardation, 746 S.W.2d 203 (Sup.Ct.Tex. 1988)(state employees successfully challenged validity of mandatory polygraph policy); Long Beach City Employees Association v. City of Long Beach, 41 Cal.3d 937, 719 P.2d 660, 227 Cal.Rptr. 90 (Sup.Ct.Calif. 1986)(public employees successfully challenged city’s involuntary polygraph program); Oberg v. City of Billings, 674 P.2d 494 (Mont. 1983)(preemployment polygraph policy struck down as unconstitutional).
[37]The defendants cite two
cases, Stehney v. Perry, 101 F.3d 925 (3d Cir. 1996) and Anderson v.
City of Philadelphia, 845 F.2d 1216 (3d Cir. 1988), neither of which stand
for the asserted principle. Stehney involved a security clearance
revocation, not a suitability determination for employment. In any event,
courts are permitted to address potential constitutional violations even in the
security clearance context. Webster v. Doe, 486 U.S. 592 (1988). Anderson,
which is the closest analogous case, arrived at its decision solely based on
the plaintiffs’ failure to allege publication of the polygraph results. Id.
at1222. The plaintiffs herein have all alleged and sufficiently demonstrated
that publication has occurred.
[38]It should also be noted that
although the AFGE panel was skeptical of the existence of a
constitutional right of privacy, it did address the specific circumstances at
issue with the assumption the right does exist. Id. 118 F.3d at 793. The
panel then held that “the individual interest in protecting the privacy of the
information sought by the government is significantly less important where the
information is collected by the government but not disseminated publicly.” Id.
This conclusion is, of course, in direct contradiction to the facts at issue
herein. The plaintiffs have sufficiently alleged that not only have the
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defendants already disseminated the protected information (as well as the guarantee that future dissemination will occur), but that they too will be compelled to do so when they apply for future federal employment. See supra at 13-14. Whether or not the defendants have specifically disclosed information that deserves privacy protection is a question of fact to be addressed later. Indeed, evidence exists that the defendants are not beyond disseminating specific allegations/conclusions that arise from applicant polygraph examinations. See Declaration of John Doe “E” (dated February 2, 2001), attached as Exhibit “8”. Additionally, the failure of the Privacy Act to afford adequate protections to the plaintiffs has also been previously addressed. See supra at 21-23.
[39]As an aside, at least urinalysis testing involves recognized and generally accepted scientific tests of which the process can be reasonably challenged. On the other hand, the reliability and accuracy of the polygraph remains hotly contested and, as asserted herein, administratively unchallengable.
[40]Willner understandably held that
privacy expectations may be diminished because of advance notice of what would
be required. Id. 928 F.2d at 1189. However, the Court still noted that
“the government cannot defeat a person’s ‘reasonable’ expectation of privacy
merely by giving notice of the impending intrusion.” Id. at 1189-80. See
also Kelley v. Johnson, 425 U.S. 238, 245 (1976)(potential employee
may not be required to forego constitutional rights simply to gain benefits of
government employment).
[41]In fact, it is the
plaintiffs’ position that many of these questions fall outside the acceptable
standards of the polygraph industry and even the defendants own internal
procedures, which is another factor that merits exploration by this Court in
evaluating the strength of the plaintiffs’ legal claims. But that time is not
now when simply dealing with the defendants’ Motion to Dismiss.
[42]Even the assertion that
asking such questions as whether an applicant had sex with an animal on the
basis it allegedly relates to an illegal act is far too broad to survive a
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constitutional challenge. For one thing, it is not at all clear that every jurisdiction from whence an applicant applies from or would work actually criminalizes this type of conduct. A cursory review of a variety of statutes from several jurisdictions, including those governing the plaintiffs and the defendants themselves, reveals no such criminal statute. Moreover, in some states, such as the Commonwealth of Virginia, it is even a felony for married couples to consensually engage in oral sex. See http://leg1.state.va.us/000/1st/LH403528.HTM (reproducing Virginia’s criminal code section 18.2-361 criminalizing “crimes against nature”). The same act in the District of Columbia is not criminalized. The defendants’ arguments, primarily emanating from the USSS, see Defs’ Memo at 39 n.10, would suggest applicants from different states should and could be asked different questions regarding their sexual activities because it might have been illegal conduct in that jurisdiction. This is absurd.
[43]Of course, the extent to
which the USSS truly asked the alleged improper questions can be confirmed by
the tape recordings of the polygraph sessions, which so far the USSS has
refused to release to John Does#4-5 or Darryn Moore, notwithstanding its lawful
obligation under the Privacy Act. See 5 U.S.C. § 552(a).
[44]In their renewed Motion, the
defendants have prematurely opposed the plaintiffs’ Cross-Motion for Discovery.
See Defs’ Memo at 41-45. Since the Court disposed of the earlier round
of pleadings as being moot, see Order (dated December 13, 2000), there
was no discovery motion for the defendants to respond to, until now. Thus,
there is no need for the plaintiffs to respond to the defendants’ arguments in
this pleading. If the defendants wish to renew their opposition, they are
certainly free to do so. And, if so, the plaintiffs will appropriately respond
in detail in their reply brief.
[45]Of course there are many cases involving criminal proceedings where the defendant was permitted to substantively challenge the reliability and stigmatizing nature of the polygraph and its resulting determinations. See e.g. U.S. v. Sherlin, 67 F.3d 1208 (6th Cir. 1995); U.S. v. Posado, 57 F.3d 428 (5th Cir. 1995); U.S. v. Piccinonna, 885 F.2d 1529 (11th Cir. 1989); Galbreth, 908 F.Supp. 877.