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”) and the Fifth Amendment to the United States Constitution survive, and 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 that “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., how many times did you smoke marijuana, typically occurred years before the examination, often more than one 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, mental instability, or level accusations of lying and 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); Doe, 753 F.2d at 1102.

      A motion to dismiss under Rule 12(b)(6) should be granted only if it appears beyond doubt that "no relief could be granted under any set of facts that could be proved consistent with the allegations." H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989). The issue on a motion to dismiss "is not whether . . . plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236.

      As the plaintiffs’ Complaint provides sufficient information to entitle them to offer evidence, and the defendants have not satisfactorily demonstrated that no facts exist that could support the plaintiffs’ claims, the defendants’ Motion must be denied.[1]

 

I.    PLAINTIFFS’ ALLEGATIONS THAT THE DEFENDANTS’           PRE-EMPLOYMENT POLYGRAPH PROGRAM VIOLATES THEIR FIFTH    AMENDMENT CONSTITUTIONAL RIGHTS ARE SUFFICIENT TO       SURVIVE A MOTION TO DISMISS

      The Due Process Clause of the Fifth Amendment forbids the federal government from depriving persons of “life, liberty, or property, without due process of law.” “`Liberty’ and ‘property’ are broad and majestic terms. They are among the ‘[g]reat [constitutional] concepts ... purposely left to gather meaning from experience....[T]hey relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged.” Board of Regents v. Roth, 408 U.S.

564, 571 (1971).[2] “The types of ‘liberty’ and ‘property’ protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests.” Arnett et al. v. Kennedy et al., 416 U.S. 134, 155 (1974).

      The Supreme Court has emphasized time and again that “[t]he touchstone of due process is protection of the individual against arbitrary action of government.” County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 1716 (1998)(citation omitted). See also Collins v. Harker Heights, 503 U.S. 115, 126 (1992)(noting that the Due Process Clause was intended to prevent government officials “‘from abusing [their] power, or employing it as an instrument of oppression’”)(citation omitted). This is so “whether the fault lies in a denial of fundamental procedural fairness” or “in the exercise of power without any reasonable justification in the service of a legitimate governmental objective.” Lewis, 118 S.Ct. at 1716.

      The Supreme Court’s decision in Jenkins v. McKeithen, 395 U.S. 411 (1969) recognized that the public branding of an individual implicates either “liberty” or “property” interests, and that neither can be achieved by the government without following certain procedural safeguards to ensure the elimination of arbitrary or capricious actions. “Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971).

       A. Applicants For Federal Employment Possess Constitutional Protections

      The language above stems from the evolution of two centuries of thinking by our country’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 Americans 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 1865. They have no Fifth Amendment protection from the government stripping their liberty interests by branding them drug users or liars. They 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 21-25 (filed July 11, 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 21, 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 by those cited by the defendants, and implicitly by courts in this Circuit. The law is clear that applicants possess the same liberty interests as employees.

      It is well-settled that a liberty interest is involved when:

 

(1) the individual’s good name, reputation, honor or integrity are at stake by such charges as immorality, dishonesty, alcoholism, disloyalty, Communism or subversive acts or (2) the state imposes a stigma or other disability on the individual which forecloses other opportunities.

Perry v. FBI, 781 F.2d 1294, 1300 (7th Cir.), cert. denied, 479 U.S. 814 (1986). See Codd, 429 U.S.624; Bishop v. Wood, 426 U.S. 341 (1976); Roth, 408 U.S. at 573-74. The defendants have placed each of the plaintiffs’ good names, reputations, honors and integrity at stake when they accused them of lying about drug use, drug dealing, serious crimes, making false statements or other issues that arose during their application process. See e.g. Complaint at ¶¶70,92,105,110,128,141,155,166-67,178-180,186,191,207, 211 (filed Mar. 15, 2000); 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. 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).[3] “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, noted that liberty interests do exist when a plaintiff has alleged the government has interfered with the ability to seek employment within a profession, which is exactly what the plaintiffs have alleged herein. See e.g., Complaint at ¶¶221,230,238,246,256,266,277, 288,298,308,317,323,329; 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.[4]

      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 tests 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 and do possesses a liberty interest under the Fifth Amendment. 

      Finally, the defendants’ own authority contradict 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.[5]

      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. See e.g., Complaint at ¶¶70,72,92,95-96,105-6,110-11,128,131,141, 155,160,166,168,179-80,186,189,194,207,211,213; 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. Thus, the defendants certainly imposed tangible changes of status upon each of the plaintiffs. Therefore, 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).[6]

      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 threw out the district court’s liberty interest analysis in Anderson because of one, and one only, reason: no publication. 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 the liberty interest claim. The plaintiffs have clearly asserted that the stigmatizing fact of their polygraph failures is publicly available. See e.g., Complaint at ¶¶220,229,237,245,255, 265,275-76,286-87,297,307,316,322,328; 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. 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 Einsteinian 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 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 25. 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. 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, in fact, do convey false impressions, if not information. See Complaint at passim; 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. Complaint at ¶¶70,92,105,110,128,141,155,166-67,178-180,186,191,207,211; 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 and realistically 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 the Congress legislatively addressed the use of polygraphs, it was noted that “[t]he polygraph must do two things: correctly identity liars and correctly identify those who are telling the truth.” Employee Polygraph Protection Act: Hearing on S.185 Before the Senate Committee on Labor and Human Resources, 100th Cong., 1st Sess. (Appendix to statement of John F. Beary, III, M.D.)(1988).

      Third, if one accepts the governments’ argument, then all or at least some of the plaintiffs should now be employed by the defendant agencies. The plaintiffs have pled that solely as a result of the failed polygraph examinations their conditional job offers were rescinded. See Complaint at ¶¶222,227,235; 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 26.

            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 29. Beyond the fact that this statement is nothing more than conclusory and cannot serve to overcome the plaintiffs assertions in their 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 27-28. 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., Complaint at ¶¶70,72,92, 95-96,105-6,110-11,128,131,141,155,160,166,168,179-80,186,189,194,207,211,213; 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 plaintiffs’ First Amended Complaint, which was filed contemporaneously with this Opposition, sets forth even more clearly 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. 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 (except for John Doe#1 who 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).               4.         The Privacy Act Does Not Trump Constitutional Claims[13]

      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 29-32. 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 26. 

      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 sets forth 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

      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.[14] 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).[15]

 

            1.   The Plaintiffs Sought Opportunities To Clear Their Good Names But All                              Efforts Were Rejected Or Ignored By The Defendants

      Each of the plaintiffs pressed the defendant in question for an opportunity to respond to any allegations of drug use, lying, violent crimes or any other accusations arising from the polygraph examination. See Complaint at passim; 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. 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, both their Complaint and First Amended Complaint specifically request Codd hearings. See Complaint at 91; FAC at 103.[16]

      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).[17]

      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 32-33. 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.[18]

      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 several other victims of the polygraph device, detailing the unprofessional and unlawful behavior of the defendants’ polygraph examiners (particularly those within the Secret Service).[19] See Declaration of John Doe “A” at ¶5 (dated September 29, 2000), attached as Exhibit “8”; Declaration of John Doe “B” at ¶¶4-5 (dated September 28, 2000), attached as Exhibit “9”; Declaration of John Doe “D” at ¶¶3-7 (dated September 28, 2000), attached as Exhibit “11”.[20]

      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.[21]

      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).[22]

      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.[23]

 

      B.  The Civil Service Reform Act Does Not Preclude The Plaintiffs’ APA                             Claims Challenging The Polygraph Process[24]

      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).[25] Because of the apparent applicability of the CSRA to applicants, the defendants argue that the plaintiffs’ APA claims are precluded. See Defs’ Memo at 5-9. This is not necessarily true.

      First, though apparently litigated time and time again, it is certainly well-settled in this Circuit that the CSRA precludes any claims brought against federal officials under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). See Bush v. Lucas, 462 U.S. 367, 367 (1983)(refusing to create Bivens remedy for First Amendment violation arising from employment relationship for which Congress provided remedial scheme); Spagnola v. Mathis, 859 F.2d 223, 224 (D.C.Cir. 1988)(Bivens claim unavailable even if CSRA provides no remedy). Though tempting as it is, the plaintiffs herein have not yet named any specific individuals in an attempt to pursue Bivens remedies, if any exist. Therefore, any analysis interpreting the balance between the CSRA and the APA must take this significant distinction into consideration.

      In any event, the CSRA does not preclude the plaintiffs’ claims because the defendants are estopped from arguing that administrative remedies have not been exhausted. 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 intentionally 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 “12” (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 “13” (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).[26]

  

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 lose 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 Complaint at passim; FAC at passim.

      Although it may be true that claims of this type are rarely successful in the end, this should not dissuade this Court from following the lead of the D.C. Circuit and the Southern District of Florida and permit the claim 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.[27] 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. Furthermore, the obviously entrenched positions of the DEA and USSS also demonstrates the futility of any administrative exercise to challenge their polygraph decisions. See Exhibit “12”.

 

            3.   The Plaintiffs’ Challenge To The Conduct Of The Defendants’ Polygraph                             Examiners Is Not Precluded By The CSRA As The Polygraphers Did Not                                   Take Or Fail To Take A Personnel Action Involving The Plaintiffs

      The plaintiffs have alleged that the defendants’ polygraphers were not competent or ethical, that their conduct fell outside accepted standards and that they were biased against certain categories of applicants. See e.g., Complaint at ¶¶218,226,234; 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.[28]

      The defendants aptly indicate that the only possibly applicable section of the CSRA is that found at 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 make the decision on whether the applicant deserves “an appointment”. In fact, the decision-makers could disregard the polygraph examiner’s findings whenever they want, as did the FBI in 1994 when half of its recruitment class failed their polygraph examinations but this was overlooked. See Complaint at ¶50; FAC at ¶50.

      Even if the CSRA precludes the plaintiffs’ APA claims to challenge the decision not to hire them, they are 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 “14” (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).[29] 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”. See Defs’ Memo at 9. They challenge, however, whether the plaintiffs have alleged “facts that show a ‘substantial and immediate’ threat.” Id. Moreover, they surprisingly assert the plaintiffs have not “affirmatively allege[d] that the FBI, Secret Service or DEA have disclosed or will be disclosing their polygraph results to prospective employers.” Id. at 10. They seemingly base their assertion on the plaintiffs’ allegation that these agencies “will, may or already” have disseminated information. Id. (emphasis original). Apparently the government has chosen to ignore the plaintiffs’ use of the words “will” and “already”, both of which on their face defeat the defendants’ arguments that the plaintiffs merely offer speculative claims. In any event, 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 Complaint at passim; 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 defendants’ actions have already harmed the plaintiffs, and they will continue to do so until stopped by this Court.

 

      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 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 14. 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 “15” (FBI letter to John Doe#1); Complaint at ¶59 and FAC at ¶59 (noting DEA Director congressional testimony); Exhibit “16” (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 “17” (FBI letter to Croddy).[30]

      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).[31] 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 transfers 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.

      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 its adopted binding policies and constitutional limitations. Id. at 100-01.

      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 “15”; Exhibit “16”; Complaint at ¶59 and FAC at ¶59.

      The plaintiffs have amply demonstrated that the defendants are not entitled to dismissal on 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 14-18. 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 15-16. 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 16. 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 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.[32]

      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 16. There is absolutely no such prohibition, and the fact that the defendants made no attempt to expound upon their presumed legal basis for such a blanket pronouncement proves it.[33]

III.  THE PLAINTIFFS ARE ENTITLED TO DISCOVERY

      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.[34] 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. 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:  October 4, 2000

                                                            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 October 2000, 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.