Copy of Complaint Filed In Federal Polygraph Lawsuit

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ERIC CRODDY

817 Loma Prieta Drive

Aptos, California 95003

and

JOHN DOE#1

1275 K Street, N.W.

Suite 770

Washington, D.C. 20005

and

JOHN DOE#2

1275 K Street, N.W.

Suite 770

Washington, D.C. 20005

and

JOHN DOE#3

1275 K Street, N.W.

Suite 770

Washington, D.C. 20005

and

JOHN DOE#4

1275 K Street, N.W.

Suite 770

Washington, D.C. 20005

and

JOHN DOE#5

1275 K Street, N.W.

Suite 770

Washington, D.C. 20005

and

 

DARRYN MITCHELL MOORE

4294 Ivy Run

Ellenwood, Georgia30294

v.

FEDERAL BUREAU OF

INVESTIGATION

Washington, D.C. 20505

and

UNITED STATES SECRET SERVICE

1800 G Street, N.W.

Washington, D.C.20223

and

DRUG ENFORCEMENT

ADMINISTRATION

700 Army-Navy Drive

Arlington, Virginia 22202

and

JOHN AND JANE DOES#6-100

Defendants

COMPLAINT

(Jury Trial Requested)

The plaintiffs John Doe#1, Eric Croddy, John Doe#2, John Doe#3, John Doe#4, John Doe#5 and Darryn Mitchell Moore, bring this action against defendants the Federal Bureau of Investigation, the Drug Enforcement Administration and the United States Secret Service, for injunctive, declaratory and monetary relief pursuant to the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Federal Declaratory Judgment Act, 28 U.S.C. § 2201, and the Fifth Amendment to the Constitution of the United States.

JURISDICTION

1.This Court has jurisdiction over this action pursuant to 5 U.S.C. § 702 and

28 U.S.C. § 1331.

VENUE

2.Venue is appropriate in the District under 5 U.S.C. § 703 and 28 U.S.C. § 1391.

PARTIES

3.Plaintiff Eric Croddy (“Croddy”) is a citizen of the United States and the State of California and resides in the State of California. He was an applicant for employment as an Intelligence Specialist for the Federal Bureau of Investigation.

4.Plaintiff John Doe#1 is a citizen of the United States and the State of North Carolina and resides in the State of North Carolina. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation.

5.Plaintiff John Doe#2 is a citizen of the United States and the State of Illinois and resides in the State of Illinois. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation.

6.Plaintiff John Doe#3 is a citizen of the United States and the State of Massachusetts and resides in the State of Massachusetts. He was an applicant for employment as a Special Surveillance Group Operative with the Federal Bureau of Investigation and a Special Agent of the Drug Enforcement Administration.

7.Plaintiff John Doe#4 is a citizen of the United States and the State of Connecticut and resides in the State of Connecticut. He was an applicant for employment as a Special Agent of the Federal Bureau of Investigation and the United States Secret Service.

8.Plaintiff John Doe#5 is a citizen of the United States and the State of California and resides in the State of California. He was an applicant for employment as a Special Agent of the United States Secret Service.

9.Plaintiff Darryn Mitchell Moore (“Moore”) is a citizen of the United States and the State of Georgia and resides in the State of Georgia. He was an applicant for employment as a Special Agent of the United States Secret Service.

10.Defendant Federal Bureau of Investigation (“FBI”) is a component of the United State Department of Justice and an agency of the United States.

11.Defendant Drug Enforcement Administration (“DEA”) is a component of the United States Department of Justice and an agency of the United States.

12.Defendant United States Secret Service (“USSS”) is a component of the United States Department of the Treasury and an agency of the United States.

13.John and Jane Does #6-100 are employees of the FBI, DEA and USSS who violated the plaintiffs’ statutory, constitutional and other rights through their official and/or unofficial actions. At this time insufficient information is known to specifically identify individuals or actions.

EXECUTIVE SUMMARY

14.The utilization of polygraph examinations by various agencies of the federal government is alleged to be used in order to ferret out the truth from those who would seek to proffer a lie, whether that be in a preemployment setting or during a counterintelligence or criminal investigation. Yet as Spinoza, one of the greatest Western thinkers and philosophers, wrote more than 300 years ago in his famous treatise "Ethica ordine geometrico demonstrata” (otherwise known as “Ethics”)(1677):

He who would distinguish the false from the true

Must have an adequate idea of what is false and true.

15.Unfortunately, in administering polygraph examinations in preemployment situations, neither the polygrapher (throughout the Complaint this term will be interposed with “examiner”) or the federal agency in which the applicant is seeking employment knows what is false or true, except to the extent told to them by the examinee-applicant. Despite the shortcomings and dangers of the polygraph the federal government continues to administer polygraph examinations to the detriment of individuals who would like nothing else but to serve the interests of the United States Government.

16.The FBI, the DEA and the USSS use the polygraph in preemployment settings in order to indiscriminately weed out individuals who may potentially be found to have hiring problems were a complete background investigation to be conducted. This permits the agencies to avoid spending time and resources on individuals they may possibly later seek to reject from employment. As a result, however, innocent individuals are falsely labeled drug users, drug dealers, terrorists and/or spies without any reasonable opportunity to ever clear their name. After receiving a false-positive reading that falls outside an agency’s defined acceptable parameters, the applicant is simply left out in the cold while the agency continues to maintain the posture that the applicant is a liar. Moreover, this unfavorable and false information is often shared with other intelligence and law enforcement agencies, whether that be federal, state or local. Not only does this result in irreparable harm to these applicants, but it denies the FBI, DEA and USSS access to qualified and capable employees. Yet when it suits the federal government’s needs, an agency will not hesitate to overlook an otherwise deceptive polygraph reading or denounce the polygraph as unreliable.

17.Many applicants for employment in the federal government have been misled to believe that the polygraph machine accurately identifies truths and falsehoods. Polygraphers, including those at the FBI, DEA and USSS, often falsely accuse applicants of deception in order to see how they will react. Others may genuinely believe the applicant is lying although they really are telling the truth. Polygraph examiners will typically tell an applicant that, for example, if they would just confess to smoking a few more marijuana cigarettes than previously admitted in writing - but to an amount still within that particular agency’s acceptable past drug use guidelines - the machine may stop reading “deception” and the examinee’s application would be back on track. Once confronted by Special Agents of the FBI, DEA or USSS that they are lying - no matter even if the applicant believes and/or knows they are telling the truth - many applicants will attempt to appease the polygrapher and even admit something that is untrue based on the examiner’s unequivocal assurances and pressure that no problems will arise. Of course, the fact that many years have passed, sometimes more than a decade, since the applicant may have last smoked marijuana, it is completely unrealistic that someone will remember whether they smoked three rather than seven marijuana cigarettes. As a result, oftentimes agencies such as the FBI, DEA or USSS will revoke the applicant’s conditional job offer solely because of what transpired during the polygraph examination, regardless of the real truth and without undertaking any efforts to arrive at an educated determination.

18.To make matters worse, every federal agency, including the FBI, DEA and USSS, conducts and uses polygraph testing in a different fashion. No standardized guidelines are followed. For example, some testing sessions are audiotaped, others not. Some applicants are permitted a polygraph second test, others not. The inconsistencies found among federal agencies has contributed to the negative image of the polygraph and the unfairness that has arisen from its use.

19.The polygraph, in one form or another, has been around for nearly one century. William M. Marston, J.D., Ph.D., is considered by many to be one of the fathers of the modern lie detector, and was one of the first to realize its commercial possibilities in the 1920s. Dr. Marston, under his pseudonym “Charles Moulton”, is probably more famous for having created the popular comic book character Wonder Woman. It is no coincidence that her magic lasso requires those who feel its bind to tell the absolute truth. Indeed, the validity and reliability of the polygraph machine, particularly when used for preemployment screening, is no more realistic than Wonder Woman’s lasso.

I.BACKGROUND INFORMATION

A.WHAT IS THE POLYGRAPH

20.A modern polygraph machine measures respiration at two points on the body; on the upper chest (thoracic respiration), and on the abdomen (abdominal respiration). Movements of the body associated with breathing are recorded such that the rate and depth of inspiration and expiration can be measured. The polygraph machine also measures skin conductance or galvanic skin response. Electrodes attached to the subject’s fingertip or palm of the hand indicate changes in the sweat gland activity in those areas. In addition, the polygraph measures increases in blood pressure and changes in the heart rate. This measurement, known as the cardiovascular measurement, is obtained by placing a standard blood pressure cuff on the subject’s upper arm. Finally, the polygraph may also measure, by means of a plethysmograph, blood supply changes in the skin which occur as blood vessels in the skin of the finger constrict due to stimulation.

21.A polygraph examiner purports to interpret these readings while asking a series of questions, commonly in three categories: direct accusatory questions concerning the matter under investigation, irrelevant or neutral questions, and more general “control” questions concerning wrongdoing by the subject in general. The examiner forms an opinion of the subject’s truthfulness by allegedly comparing the physiological reactions to each set of questions.

22.Most preemployment screening examinations utilize a series of relevant-irrelevant questions. A person is asked a series of question which contain relevant information about the subject matter being tested, which are interspersed among a series of neutral questions. If the physiological reactions are stronger to the relevant questions than to the neutral ones, the person is diagnosed as being deceptive. Conversely, a lack of difference is considered to be an indication of truthfulness. This test tends to be vague and broad because the examiner is seeking to determine what an employee or prospective employee has one many years in the past or may do in the future. Relevant-irrelevant tests are thought by experts to be less accurate than control question tests.

23.Upon information and belief, an expert polygraph examination generally takes a minimum of several hours to complete. However, examinations conducted utilizing the relevant-irrelevant test typically are much shorter in duration.

24.A number of extrinsic factors affect polygraph validity. Because the examiner must formulate the questions, supplement the data with his own impression of the subject during the exam, and infer lies from a combination of the data and his impressions, the level of skill and training of the examiner will affect the reliability of the results. A polygraph examiner’s interpretation of polygraph results is not, in fact, true evidence of conduct. It is merely the opinion of an individual with no knowledge about any of the facts surrounding the subject matter of the questions.

25.Upon information and belief, polygraph research (direction, funding, and evaluation), training, and operational review is primarily controlled by those who practice polygraphy and depend upon it for a living. This is tantamount to having the governments’ cancer research efforts controlled by the tobacco industry.

B.THE UNRELIABILITY OF THE POLYGRAPH

26. The late Senator Sam J. Ervin, Jr., once stated about polygraph testing that “[t]he process smacks of 20th century witchcraft...The burden of proof should be on those who assert the efficacy of polygraph in predicting the behavior of prospective...employees. There have been practically no efforts to compile this proof...Why then do [employers] have such blind faith in these devices? In my opinion, it is directly related to the role of science and technology in our society - the cult of the ‘expert’. There is an increasing belief that anything scientific must be more reliable and rational than the judgment of men...There is no necessity for these infringements of freedom and invasions of privacy; but even if there were a necessity for them, I believe that every citizen should answer like William Pitt: ‘Necessity is the plea for every infringement of human liberty. It is the argument of tyrants; it is the creed of slaves.’”

27.The scientific community remains extremely polarized about the reliability of polygraph techniques. This lack of scientific consensus is reflected in the disagreement among state and federal courts concerning both the admissibility and the reliability of polygraph evidence. Whatever their approach, most state and federal courts continue to express doubt about whether polygraph evidence is reliable. Upon information and belief, although there is disagreement amongst scientists about the use of polygraph testing in criminal matters, there is almost universal agreement that polygraph preemployment screening is completely invalid and should be stopped.

28.Although many courts over the years have discussed the reliability of the polygraph, the overwhelming majority have done so in the criminal context. No court has yet addressed in a civil context the reliability of polygraph evidence arising from preemployment testing, and the abuses that may result therefrom.

29.Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner’s conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams.

30.In fact, the polygraph predicts whether a person is lying with accuracy that is only slightly greater than chance. Since the question “Is the subject lying?” is a yes or no question, a random method of answering the question (e.g., a coin toss) would be correct 50% of the time. Indeed, studies have repeatedly shown that the polygraph is more likely to find innocent people guilty than vice versa.

31.In 1965 and again in 1976, the House Government Operations Committee concluded that there was not adequate evidence to establish the validity of the polygraph. In 1979, the Oversight Subcommittee of the Select Committee on Intelligence of the U.S. House of Representatives was notified that polygraph testing is a central component of the preemployment screening process for applicants for positions in most federal law enforcement and intelligence agencies. Approximately 75% of those denied security clearances by the CIA or NSA came as a result of polygraph examinations. Based, in part, on this information the subcommittee urged the director of the CIA to institute research on “the accuracy of the polygraph in the pre-employment setting and to establish some level of confidence in the use of that technique.” To date, no credible research on the topic of preemployment polygraph screening has been published.

32.In November 1983, the Office of Technology Assessment (“OTA”) issued a report “Scientific Validity of Polygraph Testing: A Research Review and Evaluation”. The report concluded that “the available research evidence does not establish the scientific validity of the polygraph test for personnel security screening” and that the “mathematical chance of incorrect identification of innocent persons as deceptive (false positives) is highest when the polygraph is used for screening purposes.” The OTA compiled the results (for research on the control question technique in specific incident criminal investigations) of six prior reviews of polygraph research, ten field studies, and fourteen analog studies that it determined met the minimum scientific standards. The results were as follows:

1)Six prior reviews of field studies:

-average accuracy ranged from 64% to 98%.

2)Ten individual field studies:

-correct guilty detections ranged from 70.6% to 98.6% and averaged 86.3%;

-correct innocent detections ranged from 12.5% to 94.1% and averaged 76%;

c)false positive rate (innocent persons found deceptive) ranged from 0% to 75% and averaged 19.1%;

d)false negative rate (guilty persons found nondeceptive) ranged from 0% to 29.4% and averaged 10.2%.

3)Fourteen individual analog studies:

a)correct guilty detections ranged from 35.4% to 100% and averaged 63.7%;

b)correct innocent detections ranged from 32% to 91% and averaged 57.9%;

c)false positives ranged from 2% to 50.7% and averaged 14.1%;

d)false negatives ranged from 0% to 28.7% and averaged 10.4%.

33.The United States Congress, particularly in light of the OTA report questioning the reliability of the polygraph machine, enacted - and the president signed into law - The Employee Polygraph Protection Act of 1988, which generally prohibits the private sector from using polygraphs in preemployment screening and sharply curtails the permissible uses of the polygraph in specific-incident investigations. Prior to the enactment of this legislation, it was estimated that a minimum of 400,000 honest workers were wrongfully labeled deceptive and suffered adverse employment consequences each year. The federal government, however, is exempt from the provisions prohibiting preemployment testing.

34.Even the primary and largest law enforcement agency of the United States has expressed significant concerns regarding the reliability of the polygraph machine. In the 1998 Supreme Court case United States v. Scheffer, the Department of Justice argued against admissibility of polygraph evidence by stressing its inaccuracy, thus creating an inconsistency between the government’s extensive use of polygraphs to make vital security and preemployment determinations and in instances where the results of the test - as in Scheffer where the criminal defendant had passed a polygraph - do not suit the purposes of the government.

35.On or about February 3, 1997, James K. Murphy, the Chief of the FBI’s Laboratory’s Polygraph Unit in Washington, D.C. and a FBI polygraph examiner since 1978, submitted a declaration to the United States Military Court, Mid-Atlantic Region, Norfolk, Virginia, in the case of United States v. Ens. Patrick J. Jacobson, USN. He stated that "[i]t is the policy of The Department of Justice to oppose all attempts by defense counsel to admit polygraph results as evidence and to refrain from seeking the admission of favorable examinations which may have been conducted during the investigatory stage of a case...The FBI uses the polygraph as an investigative tool and cautions that the results should not be relied upon to the exclusion of other evidence or knowledge obtained during the course of an investigation...This policy is based upon the fact that, a) the polygraph technique has not reached a level of acceptability within the relevant scientific community, b) scientific research has not been able to establish the true validity of polygraph testing in criminal applications, c) there is a lack of standardization within the polygraph community for training and for conducting polygraph examinations."

C. SPECIFIC EXAMPLES OF POLYGRAPH PROBLEMS AND ABUSE

36.There are many examples of the unreliability of polygraph examinations, and its potential abuse. Aldrich Ames, the former CIA official turned-spy, convinced a polygraph examiner on at least two occasions that the deceptive readings he was allegedly displaying were easily explained away. As a result, Ames “passed” the polygraph. Of course, Ames was instructed by the Soviet Union on how to utilize countermeasures to beat the polygraph. Upon information and belief, few true spies, if any, have ever been caught by the United States Government solely because of the polygraph.

37.In fact, it is a simple feat to defeat the polygraph, which undermines the entire purpose of utilizing it to determine the truth. The very persons most likely to be the subject of a polygraph examination can use any number of techniques to “truthfully” lie. Various instructions on how to defeat the polygraph are publicly available in books and on the Internet. Upon information and belief, during the 1980s, approximately thirty Cubans who served as agents (i.e., spies) for the CIA passed extensive polygraph examinations. Following the defection of a Cuban intelligence officer and his debriefing, it was revealed that all of the CIA’s “Cuban agents” were actually double-agents working for the Cuban Government. Each and every one of them had defeated the CIA’s polygraph examination.

38.The recent treatment of Wen Ho Lee, a former nuclear scientist now facing criminal charges for mishandling classified information, is further evidence of the unreliability and misuse of the polygraph. On or about December 23, 1998, Lee was given a polygraph examination by a Department of Energy (DOE) polygrapher in Albuquerque, New Mexico. After completing the test, the polygrapher concluded that Lee was not deceptive. Two other polygraphers in the DOE's Albuquerque test center, including the manager, reviewed the charts and concurred with the result. Upon information and belief, the polygraph results were so convincing and unequivocal, that the deputy director of the Los Alamos lab issued an apology to Lee, and work began to get him reinstated to his former position. Several weeks after the polygraph, the DOE decided to assign Lee’s test the unusual designation of "incomplete." When FBI headquarters finally obtained the DOE polygraph results, it concluded that Lee had failed the polygraph. The FBI on its own then tested Lee, and claimed that he failed.

39.In researching a story on Lee’s polygraph tests, CBS News spoke to Richard Keifer, the current chairman of the American Polygraph Association and a former FBI Special Agent who used to run the FBI's polygraph program. Keifer indicated that, "[t]here are never enough variables to cause one person to say [a polygraph subject is] deceptive, and one to say he's non-deceptive...there should never be that kind of discrepancy on the evaluation of the same chart." After personally reviewing Lee’s polygraph scores, Keifer remarked that the scores are "crystal clear." Indeed, he added that in all his years as a polygrapher, he had never been able to score anyone so high on the non-deceptive scale. Yet the FBI was adamant that Lee had failed the test; a perfect example of deliberate misuse of the polygraph.

40.Another example was that of the CIA’s mistreatment of one of its former staff attorneys, Adam Ciralsky. The CIA fired him and revoked his top-secret security clearance, in part, because he allegedly exhibited a "lack of candor" about relationships with associates who may have been tied to Israeli intelligence. Official CIA records, however, revealed that the CIA tried to manipulate Ciralsky's polygraph tests so as to transform demonstrably "non-deceptive" results into "deceptive" results. A CIA memo, written two weeks before Ciralsky's final polygraph, stated that Tenet [Director of the CIA] "says this guy is outta here because of lack of candor. . . . Subject is scheduled for [another] poly. . . . Once that's over, it looks like we'll be waving goodbye to our friend." Thus, official records indicated that the CIA were set to base Ciralsky's dismissal on the outcome of a polygraph examination that he had yet to take. In fact, Ciralsky underwent and successfully completed counterintelligence polygraphs in 1993, 1996 and 1998, at which times his answers were consistently deemed to be "strongly non-deceptive." Yet when Ciralsky submitted to CIA polygraph examinations in August and October 1997, he was accused of "deception" with regard to issues and events which pre-dated, and hence were covered by, his earlier polygraphs. Upon information and belief, Ciralsky did not fail any of his CIA polygraph examinations. The CIA’s actions demonstrated how federal agencies utilize polygraph results to suit their own purposes, which are not necessarily consistent with the truth.

41.Upon information and belief, in or around 1997-98, CIA polygraphers reported to the DOJ's Public Integrity Section that CIA management does, in fact, instruct polygraphers to "fail" certain employees. It can be assumed that similar tactics exist within the FBI, DEA, and USSS.

II.THE DEFENDANT FEDERAL AGENCIES

A.FEDERAL BUREAU OF INVESTIGATION

42.Upon information and belief, in or around the 1930s, the FBI conducted a criminal investigation in the State of Florida. Following the identification of a suspect, the individual was administrated a polygraph examination and was found to be deceptive. As a result, the FBI believed this individual was the guilty culprit. However, soon thereafter it became apparent that this individual was not guilty of the crime, but in fact another individual was proven to be the guilty party. This prompted J. Edgar Hoover, then the director of the FBI, to exclaim (something to the effect) that the FBI should “take the damn thing [polygraph machine] and throw it in the lake.” The polygraph was not utilized by the FBI for years afterwards.

43.Despite the lack of scientific evidence supporting its use, the polygraph machine is now heavily relied upon by the FBI for personnel screening. The current Director Louis Freeh implemented the present policy in or around March 1994. Any applicant for a full-time position with the FBI, no matter the individual’s level of responsibility, is required to undergo a polygraph examination. The FBI’s polygraph screening focuses exclusively on counterintelligence issues. the sale and/or use of illegal drugs, and the accuracy and completeness of information furnished by applicants in their employment applications.

44.According to an October 28, 1997, letter sent by Donald Kerr, the Assistant Director of the FBI’s Laboratory Division, to Senator Charles E. Grassley, between March 1994, and October 1997, “the FBI conducted approximately 16,200 preemployment polygraph examinations. Of those, 12,930 applicants (80 percent) passed and continued processing; 3,270 applicants (20 percent) were determined to be withholding pertinent information. When these individuals were interviewed about their unacceptable performance in the polygraph session, 1,170 (36 percent) admitted to withholding substantive information.” While the FBI’s definition of “substantive” is unknown, based on the above FBI figures up to 64 percent of those individuals (2,100) who were deemed deceptive by the polygraph examiner may have been or were innocent of any wrongdoing.

45.Upon information and belief, approximately 20%-40% of all FBI employee candidates each year fail the polygraph examination, typically due to responses to the drug use question.

46.The FBI’s website explains how it uses the polygraph machine in its recruitment process at http://www.fbi.gov/kids/crimedet/poly/poly.htm. It states that the “polygraph test consist [sic] of three phases: the pretest interview, the test, and the post-test phase which may include the examiner questioning the examinee concerning responses to specific test questions. Before beginning the first phase in the polygraph process, the examiner will gather information about the case from the investigator. Collecting this information allows the examiner to create appropriate questions for the actual examination. After constructing these questions, the examiner is ready for the pretest interview. To begin the pretest interview, the examiner is introduced to the examinee and describes what will happen during the test. The examiner then gets the individual to explain their version of what happened and then discusses the questions that will be asked during the polygraph test. Once the examiner has discussed this information with the examinee, phase two of the polygraph test begins. Within the test, the examinee will face a variety of questions. All the questions require a simple "yes" or "no" answer. Through most of these questions, the examiner is trying to determine the individual's knowledge and participation or involvement in the crime under investigation. The theory is that, throughout the polygraph test, the examinee’s attention will focus on the questions that he or she finds most threatening. These questions are usually those which the examinee will attempt to provide a deceptive answer. Any attempt to provide deceptive answers by the examinee usually results in significant changes in their recorded physiology which is detected by the examiner. The examinee's responses are compared to a variety of deceptive criteria which the examiner is trained to recognize in each physiological parameter recorded. To establish how an individual would physically respond when telling the truth or lying, the polygraph test includes questions that develop baseline readings for what examiners call known-truths and probable-lies. Both known-truth and probable-lie questions allow the examiner to record the blood pressure/pulse ratio (mean pressure), galvanic skin response, and respiration of the examinee, and then compare those results to the results recorded for questions regarding the crime or relevant issue. Once the examiner finishes with all of the questions, he or she evaluates the results to determine whether the individual told the truth or was deceptive. If the polygraph results indicate that the examinee was telling the truth, the individual is thanked for participating in the test and allowed to leave. But, if the polygraph results indicate deception, the examiner will begin the third phase of the test, questioning or interrogation to determine the reason for the deceptive test results. While acting in a professional and understanding manner, a skilled examiner will use effective questioning techniques to make the examinee comfortable with telling the truth.” Upon information and belief, experiences for applicants have revealed that FBI polygraphers routinely fail to act in a professional or understanding manner.

47.The FBI has asserted in correspondence that the “polygraph is one of the many tools that law enforcement agencies, including the FBI, use when conducting investigations. Besides identifying guilty subjects, the polygraph can eliminate suspects, verify witnesses' statements or informant information, and determine the truth of an individual's statement. When used properly by trained qualified examiners, the polygraph is an effective investigative tool which can save many investigative man-hours, decrease the overall cost of investigations, and provide valuable investigative leads or information which could not otherwise be developed due to lack of evidence or other noteworthy information.”

48.Specifically with respect to preemployment screening, the FBI has also indicated in correspondence that it “uses the polygraph as an aid to investigation and considers it highly reliable when used by a competent and ethical examiner. It is one part of the screening process and is designed to address issues that may not be resolved by more traditional investigative methods.” It has also said that “[h]ighly trained and experienced FBI polygraphers are utilized to conduct these examinations which have proven very reliable in our employment process.”

49.Once an applicant successfully completes the initial application process, the individual is required to successfully complete a polygraph examination in order to continue processing. Although Donald Kerr, the Assistant Director of the FBI’s Laboratory Division, informed Senator Charles E. Grassley by letter dated October 28, 1997, that the polygraph “is not a substitute for, but merely one component of, a thorough and complete background investigation”, upon information and belief only upon a successful completion of the polygraph examination will an applicant be afforded a full-fledged background investigation. Therefore, any applicant that is falsely accused of a violation as a result of the polygraph will be unable to “clear” his/her name as the FBI will not conduct any further investigation into their background. The applicant is left to prove a negative does not exist.

50.Upon information and belief, when the FBI implemented its polygraph program in 1994, the then current special agent class had already begun its training. Nevertheless, members of the 1994 class were administered polygraph examinations and approximately half the class failed. However, the FBI simply overlooked this problem and waived the requirements of the polygraph for the 1994 class.

51.Upon information and belief, it is a common perception among FBI personnel involved in the application and polygraph process that applicants who “fail” the polygraph will reveal something that they withheld or will simply just go away.

52.The FBI official policy, as set forth in various correspondence, is that “[a]ny applicant who does not successfully pass an initial polygraph examination may request to be afforded a second polygraph examination; however, certain criteria must be met.” While the criteria is not publicly known, upon information and belief the FBI policy on this issue is contained in, but not limited to, Buairtel dated May 1, 1995, captioned “Special Agent Selection System (SASS) Polygraph Policy”. Although applicants to the FBI have been notified by letter that the “FBI’s policy regarding additional polygraph examinations is consistent for all applicants”, upon information and belief the FBI inconsistently applies this policy.

53.On or about September 29, 1997, Dr. Drew C. Richardson, a FBI Supervisory Special Agent, testified before the Senate Judiciary Committee and condemned the use of the polygraph machine. He testified, in part, that “[w]ithin the Bureau, polygraph examiners who have little or no understanding of the scientific principles underlying their practice, report to mid-level managers who are largely ignorant of polygraph matters. These in turn report to executives, who have real problems for which they seek needed solutions (e.g., the need to protect national security from the danger of espionage, and the need to hire employees with appropriate backgrounds). These executives are left unable to evaluate that polygraph is not a viable solution and do not comprehend that ignorance and mis-information are built into their own command structure.”

54.The FBI’s polygraph examinations are neither tape recorded or videotaped, despite the fact that such actions would only ensure that polygraph examinations are conducted properly. Upon information and belief, the FBI chose not to tape record or videotape polygraph examinations in order to reduce an applicants’ ability to challenge the results of a polygraph examination.

55.During the period relevant to this litigation, the FBI’s drug use policy was that an applicant is unsuitable for employment if marijuana was used during the last three years or more than fifteen times, or if usage of any illegal drug(s) or combination of illegal drugs, other than marijuana, was more than five times or during the last ten years.

56.Upon information and belief, many of the FBI’s polygraph examiner are biased in their perceptions of applicants, which affects the manner in which the test is administered and the results achieved. Indeed, one FBI polygraph examiner Special Agent H. L. Byford stated in an e-mail dated August 6, 1999, that “if someone has smoked marijuana 15 times, he's done it 50 times....Those who have any doubts about how many times they used are going to fail. Those who are certain that they only tried it once or three times or five or whatever, will pass....I got to tell you though, if I was running the show, there would be no one in the FBI that ever used illegal drugs!”

57.Upon information and belief, many former FBI Special Agents, including some who had distinguished careers, have failed polygraph examinations when trying to either re-enter the FBI or attain a consulting arrangement. In solely considering the results of the polygraph machine, the FBI literally accused its former agents of having committed crimes while on duty with the FBI; acts that if true have still gone unpunished.

B.DRUG ENFORCEMENT ADMINISTRATION

58.The DEA’s website (http://www.usdoj.gov/dea/briefingbook/page86.htm) indicates that in order to become a Special Agent, “applicants must successfully complete a polygraph examination, a psychological suitability assessment, and an exhaustive background investigation.”

59.On May 14, 1997, Thomas A. Constantine, Administrator, DEA, testified before the Senate Caucus on International Narcotics Control regarding Southwest Border Corruption. In that testimony (http://www.usdoj.gov/dea/pubs/cngrtest/ct970514.htm) he addressed current DEA Special Agent recruitment and hiring procedures. He stated that the “polygraph examination is utilized as a tool to determine and direct attention to possible problem areas in an applicant’s background. However, it is never the sole determining factor in determining the applicant’s suitability for employment by DEA.”

60.In reviewing Constantine’s testimony, a reasonable person would be under the impression that the DEA will conduct a psychological screening and clinical interview, drug deterrence screening, polygraph examination, panel interview by supervisors and senior Special Agents, and a comprehensive background investigation, prior to any formal decision regarding employment. Upon information and belief, the DEA has made and continues to make suitability decisions regarding applicants immediately after receiving the results of polygraph examinations. At times the DEA solely relies on polygraph results, and derivative conclusions arrived therefrom, in adjudicating suitability decisions. Applicants are not afforded opportunities to challenge the test results or the luxury of a comprehensive background investigation that may very well arrive at contrary conclusions from that of the polygraph examination.

C.UNITED STATES SECRET SERVICE

61.The USSS requires applicants to undergo a complete background investigation , which includes in-depth interviews, drug screening, medical examination, and a polygraph examination.

62.The USSS maintains a Polygraph Examination Program which it uses as a major investigative tool for all cases under Secret Service jurisdiction. Each examiner is trained in interview and interrogation techniques, and may conduct polygraph examinations on issues involving criminal, national security, and employee-screening matters.

63.Upon information and belief, the USSS audiotapes all polygraph examinations. However, applicants are not provided with copies of these tapes except if requested through the Freedom of Information or Privacy Acts; a process that typically takes years. Thus, applicants are not permitted a timely opportunity to use the audiotapes to support their allegations of irregularities or misconduct.

64.Upon information and belief, the USSS does not typically permit applicants the opportunity to take a second polygraph examination if the first one allegedly revealed deception. In fact, no formal appellate process offers applicants any due process rights to challenge false positive polygraph results.

65.Upon information and belief, the USSS has revoked applicants’ conditional job offers solely based on the results of polygraph examinations.

III.THE PLAINTIFFS

A.ERIC CRODDY (FBI)

66.In or around late 1996 or early 1997, Croddy, who is a Defense and Aerospace Research Analyst in the private sector, completed the FBI’s written examination. An FBI agent administering the test referenced the polygraph and called it the “line in the sand” insofar as FBI applicants are concerned. Croddy has never taken an illegal drug in his life.

67.In or around July 1997, Croddy was extended an invitation to be interviewed for a position as an Intelligence Specialist. His first contact was with Special Agent Kathy Muller. He also spoke with members of the FBI unit dealing with chemical and biological terrorism incidents, including Pete Strzok, an Intelligence Research Specialist, his superior, Robert Shapiro, and additional analysts. Generally, the response was positive, and as far as Croddy could tell they were receptive to his submitting a formal application.

68.In or around late 1997, Croddy underwent a polygraph examination at the FBI’s field office in the Federal building in San Francisco, California. The polygraph examiner first went through a pretest interview with Croddy and discussed his application. He remarked that Croddy was displaying noteworthy candor by including certain information in his application, i.e., that a former roommate of his in college had been involved with drug use. Not being involved in any of the drug-related activities himself, and knowing that many of his friends and colleagues were well aware of this fact, Croddy had no difficulty in providing relevant background information. In the initial stages of the examination, the polygrapher attempted to build a rapport with Croddy by pointing out similarities in their backgrounds.

69.The polygrapher then went on to explain the basics of the polygraph,

paraphrasing F. Lee Bailey’s characterization of the device as being “basically a medical device.” The reference to F. Lee Bailey seemed odd to Croddy due to Mr. Bailey’s participation in what Croddy believed to be some unseemly cases. The polygrapher placed numbers on cards which were then attached to the wall. Croddy was instructed to pick one number and keep the choice to himself. As the polygrapher read each number on the wall, he told Croddy to answer “no” to each one when asked, “is the number [e.g., 5]…?” According to the polygrapher, when Croddy said “no” to the number Croddy had actually chosen, the reaction was quite evident. The polygrapher added that Croddy was, in the parlance of the polygraph profession, a “screamer” (i.e., one whose deception can be easily seen).

70.When the polygrapher concluded the first round of questioning, including a question regarding whether Croddy had violated any of the FBI’s guidelines with regard to drug use, Croddy found himself accused of being deceptive. As far as the polygrapher was concerned, he indicated there was little point in going on, unless of course Croddy were to make a confession. Croddy became extremely upset and remarked to the polygrapher that it was impossible to prove a negative, i.e., that Croddy had not used drugs. In fact, Croddy has never taken an illegal drug in his life. Nevertheless, the session ended after approximately two hours, and his FBI application was subsequently rejected.

71.Upon information and belief, none of the references in Croddy’s application were contacted to verify or disprove the polygrapher’s accusations that Croddy had used drugs.

72.Following Croddy’s receipt of the FBI’s written rejection, by letter dated

January 10, 1998, he informed Special Agent Kathy Muller of what had happened, thanked her for her kind consideration and disputed the results of the polygraph. By letter dated April 2, 1998, Croddy also explained what had transpired to FBI Director Louis Freeh.

B.JOHN DOE#1 (FBI)

73.In or around October of 1991, John Doe#1, who is now employed as a Certified Public Accountant, contacted recruiting coordinator Debbie Lyon (then Debbie Jones) of the Norfolk field office of the FBI. He informed Ms. Lyon that he was interested in becoming an Agent. She forwarded him the appropriate initial application form – Form FD-646. Since at the time he had not yet passed the CPA exam, John Doe#1 was required to take the FBI’s equivalent accounting test as he was applying through the FBI’s accountancy program.

74.On or about October 25, 1991, John Doe#1 took the FBI’s accounting exam at the FBI’s Norfolk field office. Soon thereafter he received a letter notifying him that he had passed the test and was eligible for further testing.

75.On or about November 1, 1991, John Doe#1 took the FBI’s written exam. The test was also conducted in the Norfolk field office. This test was also satisfactorily completed and John Doe#1 received a letter dated November 14, 1991, notifying him that he passed the test and was eligible for further testing. Therefore, he filled out the long application form, Form FD646, and Ms. Lyon arranged for an oral interview.

76.On or about January 6, 1992, John Doe#1 went to the Norfolk FBI field office for his panel interview. Before the interview started he met briefly with Special Agent Butch Holtz, who was in charge of recruiting and who informed John Doe#1 that he probably would not pass the panel interview because he was too young. He could, however, re-apply in the future. At the time John Doe#1 was only twenty-three years old; the minimum age for applicants.

77.By letter dated April 9, 1992, John Doe#1 was informed that his application was being placed on hold. Upon information and belief, this was the result of a hiring freeze at the FBI and due to the application process undergoing modifications. As a result, he was informed he would have to complete the tests all over again under the new application method. During April 1992 to March 1994, John Doe#1 kept in touch with Ms. Lyon.

78.In or around September 1994, Ms. Lyon informed John Doe#1 that the FBI hiring freeze was to be lifted. Therefore, on or about October 12, 1994, he mailed her a new initial application Form FD-646. In or around October 1994, he was notified that his written test under the new application method was scheduled for on or about December 1, 1994. He was also sent materials explaining the new application process. These materials included the FBI’s policy on illegal drug use and announced that as part of the new application procedure, polygraph testing would be used for all applicants to determine the extent of illegal drug usage.

79.In order to allow a one-time experimental use in high school of a non-marijuana drug to fall outside of the FBI’s acceptable ten year drug use guideline, John Doe#1 delayed submitting his Form FD646 application until on or about March 11, 1996. This form was slightly different then the older initial form as the format of the questions on drug usage had changed. There was nothing improper regarding this decision. In fact, it had been suggested to John Doe#1 by an FBI employee involved with the application process. On or about April 2, 1996, John Doe#1 took the new written examination. He was notified by letter dated April 16, 1996, that he passed the examination. The new panel interview, or Phase Two Test, was then scheduled for on or about June 4, 1996.

80.Before John Doe#1 went to the panel interview, Ms. Lyon explained part of the process to him. As part of her explanation she told him that the Agents conducting the interview would know nothing about his background or application. She specifically mentioned that they would have no knowledge of the fact he postponed his application in order to comply with the FBI’s ten year period on drug usage of drugs, and that this was not a problem. John Doe#1 was notified he attained a passing score on the structured interview and writing exercise by letter dated June 13, 1996.

81.On or about June 16 or 17, 1996, Special Agent B.J. Marlowe of the Norfolk FBI field office called to conduct a pre-test polygraph interview over the telephone. It was John Doe#1’s understanding that this was the conversation during which he was to disclose any illegal behavior in his past. Therefore, John Doe#1 proceeded to tell Special Agent Marlowe of his past drug use, all of which was within the FBI’s drug usage guidelines, and of various minor incidents most of which had occurred while he was a teenager.

82.Although John Doe#1 could not absolutely recall his total prior uses of marijuana, he estimated his usage was around ten times. By providing this number John Doe#1 believed he was erring on the side of caution. This fact was mentioned to Special Agent Marlowe during the phone interview.

83.Throughout the phone interview John Doe#1 stressed to Special Agent Marlowe how ashamed he was of his past behavior. She responded by saying that he should try not to feel that way or he could have problems with the polygraph. In addition, she informed him that the majority of the incidents he spoke of were committed while he was a minor and of no importance as far as the FBI was concerned.

84.A day or so later, Special Agent Marlowe called again to ask him if the marijuana usage figure he told her over the phone during their previous conversation was ten times or two times. He indicated that ten times was the correct number.

85.On or about June 19, 1996, John Doe#1 returned to the Norfolk FBI field office for his polygraph examination. The polygrapher was Special Agent Samuel Bryant, Jr.He led John Doe#1 from the reception area to the room where the test was to be administered. He began by asking John Doe#1 how he was feeling. He also had copies ofJohn Doe’s applications laid out on his table and chair.

86.Special Agent Bryant then explained the polygraph process to John Doe#1. He informed John Doe#1 that the meeting was not being audio or video taped, and that there were no one-way mirrors in the room. Prior to the test, Special Agent Bryant went over the questions he would be asking during the test.

87.After answering the questions about illegal drug usage, Special Agent Bryant asked John Doe#1 if his responses were the same he had given Special Agent Marlowe. When John Doe#1 replied that it was, Special Agent Bryant answered "good."After explaining the past incidences of misbehavior in detail, Special Agent Bryant instructed John Doe#1 to answer"No" to questions on whether he had ever cheated or falsified legal documents because the FBI was looking for general trends of behavior. He also instructed John Doe#1 to answer “No” to the "Is there anything in your background that would lead us to believe you lack integrity" question for the same reason.

88.Special Agent Bryant placed all the polygraph attachments on John Doe#1 and went through the questions three times, taking breaks between each session. After the first session, he informed John Doe#1 that he was getting a response from the "Is there anything in your background that would lead us to believe you lack integrity" question and the “Have you falsified legal documents question."He reiterated that he was not talking about any one specific incident and then altered the question to read, "Other than what we have discussed have you ever falsified any documents” and “Other than what we discussed is there anything in your background that may lead us to believe you lack integrity.”

89.After the third set of questions, John Doe#1 initialed the polygraph strips and Special Agent Bryant left the room for a few minutes. He then returned and informed John Doe#1 that the only question he was now having difficulty with was the question about illegal drug usage, although Special Agent Bryant did not accuse him of deception. He asked John Doe#1 if there were anything that could be causing him to respond to that question. John Doe#1 proceeded to tell him how he was scheduled to apply to the FBI in 1994, but held off on the procedure until he was sure he was in compliance with the FBI's drug use policies. Special Agent Bryant had him write a statement to that effect as it would be attached to the polygraph results sent to Washington, D.C. for review.

90.As John Doe#1 was leaving the room to see Special Agent Bob Shea, the Special Agent in Charge of Recruiting, he asked Special Agent Bryant how he did on the polygraph examination. Special Agent Bryant responded "I'm satisfied with your answers."The entire polygraph, from the time John Doe#1 entered the room until the time he left took approximately forty-five minutes to an hour.

91.After the test, John Doe#1 was taken to a locker or weight room and weighed by Special Agent Bob Shea. He also measured John Doe#1’s height. He was taken to a smaller room or office and shown a fifteen to thirty minute video on the physical requirements of the FBI Academy and what to expect. After the video, Special Agent Marlowe entered the room and asked John Doe#1 again if his marijuana usage was ten times or two times. Again he informed her it was ten times. He briefly met with Special Agent Bob Shea again and was then shown out. He was told that the results of the test would be available in a few weeks. At that time his drug test and physical would be scheduled.

92.A few weeks later, on or about July 10, 1996, Ms. Lyon called and told John Doe#1 he had not passed the polygraph examination. Upon being asked for specifics, she told him the report read “results show deception” or some similar wording. He received formal notification that his FBI application would not be processed further “based on the results of your polygraph examination” by letter dated August 5, 1996.

93.Since John Doe#1 had told the complete truth during his testing, he immediately requested a retest by letter dated July 10, 1996. This request was denied by letter dated January 23, 1997, from Richard Hildreth, Jr., Chief, Applicant Recruiting and Background Section, FBI, who indicated that the “FBI does offer a polygraph retest depending on the circumstances in certain cases. However, based on the facts in your case, you do not meet the criteria required and will not be afforded a retest or any further consideration for FBI employment.” No explanation was provided to justify the FBI’s decision. Over the next three years John Doe#1 wrote the FBI on several occasions concerning the application process, but to no avail.

94.By letter dated April 16, 1999, Michael E. Varnum, Chief, Applicant Processing Section, Administrative Services Division, FBI, provided John Doe#1 with additional information. Chief Varnum indicated that [a]ny applicant who does not successfully pass an initial polygraph examination may request to be afforded a second polygraph examination; however, certain criteria must be met. In your case you did not meet the criteria because of your failure to fully disclose the extent of your drug usage until after the polygraph examination was administered.” John Doe#1 responded to Mr. Varnum by letter dated May 16, 1999, to clarify that he had, in fact, fully revealed all potentially incriminating information concerning his teenage drug usage before he had undertaken the polygraph examination. The FBI sent a final reply by letter dated August 13, 1999, and indicated that “the decision not to offer you an appointment remains the same.”

95.Although extremely disappointed by the FBI results, John Doe#1 nevertheless was still determined to seek a career in law enforcement. Over the next two years, he applied three times to two local police departments and twice to his State’s Bureau of Investigation. However, John Doe#1 was never hired by any of these agencies. Although he was highly qualified and exceeded the qualifications, he never received a job offer. Nor was he ever given a reason for his unsuccessful attempts at employment with any of these agencies. Two of the law enforcement agencies actually conducted background investigations. For both of these departments, John Doe#1 advanced to the final pool of applicants. The other agency never selected him for the interview process.

96.For all of these organizations John Doe#1 was required to reveal that the FBI had denied his application. One of the agencies specifically asked why and John Doe#1 informed them of his apparent problems with the FBI’s polygraph examination. Upon information and belief, the three law enforcement agencies were provided unfavorable, inaccurate information by the FBI concerning John Doe#1, including the results of his polygraph examination. This information prevented John Doe from being hired by these law enforcement agencies. In any event, the mere fact that John Doe#1 had to inform these other law enforcement agencies of his problems with the FBI’s polygraph created a negative stigmatization that harmed his chances for employment.

C.JOHN DOE#2 (FBI)

97.John Doe#2 is a probation officer with a county probation department, and a former soldier in the United States Army. In the latter position, he held a Secret level security clearance.

98.On or about February 14, 1995, John Doe#2 submitted a preliminary application for the position of Special Agent of the FBI.

99.By letter dated September 6, 1995, John Doe#2 was notified by the FBI that he attained a passing score on the first battery of tests for the Special Agent position. As a result, he was requested to submit additional application materials. On or about

September 20, 1995, John Doe#2 submitted his FD140 application.

100.By letter dated July 8, 1996, John Doe#2 was notified by the FBI that he failed to attain a passing score on the structured interview and written exercise, but that he was permitted to take a retest. In order to enhance his competitiveness, John Doe#2 attained a Master’s Degree in Criminal Justice (3.9/4.0 GPA and a published thesis) before resubmitting to a second test.

101.By letter dated September 30, 1998, John Doe#2 was notified by the FBI that he attained a passing score on the structured interview and written exercise and was thereby eligible for further consideration for the Special Agent position.

102.By letter dated October 2, 1998, John Doe#2 was offered a conditional appointment as a Special Agent of the FBI. Appointment was contingent upon the existence of a vacancy of a funded position, and successful completion of a background investigation, preemployment polygraph examination, physical readiness test, physical examination, and urinalysis drug test.

103.John Doe#2 underwent his first polygraph examination on or about October 20, 1998. During his preliminary interview, John Doe#2 admitted that he had used marijuana on five occasions during the period 1984-1989. He also admitted to a one time experimental use of a drug other than marijuana (which consisted of simply dipping his finger in the substance and tasting it) even though this had occurred more than thirteen years prior and he was not required to reveal this information. However, John Doe#2 wanted to note that he mistakenly omitted this usage on his initial application submitted three years prior as he had believed the usage was outside of the requested time frame. As he had since learned otherwise, he wanted to correct the record despite the fact his past drug usage was now clearly within the FBI’s policy guidelines. At the time John Doe#2 was told by his initial FBI recruiter not to worry about this discrepancy since the usage would be outside the ten year period by the time he would be polygraphed. Thus, the omission had been excused by the FBI official closest to John Doe#2’s application process.

104.Before the polygraph examination began, John Doe#2 and the polygrapher reviewed the questions and structured them in a manner to make him comfortable to answer “yes” or “no”. John Doe#2 expressed his concern about having been around drugs during the past ten years, but he was informed not to be concerned with the conduct of anyone else. The polygrapher administered three series of questions, and repeated each question three times. The only comment offered by the polygrapher during the examination was that he saw a reaction to a question on whether John Doe#2 had ever lied to a family member. After all questions had been finished, John Doe#2 was unhooked from the machine, and the examiner left the room to review the test results.

105.Upon returning to the room, the FBI’s polygraph examiner informed John Doe#2 that he saw reactions to the drug questions and that he believed something was being held back. The examiner indicated that he believed John Doe#2 had failed the examination, although the final decision would be made in Washington, D.C. Upon information and belief, these comments are part of an interrogation tactic to elicit the subject to “confess” and volunteer additional information that might explain the “failing” results of the polygraph examination. John Doe#2 denied that he withheld any information concerning his past drug use. He stated his willingness to retake the examination, but the polygrapher stated that this could not be done and that the results should be announced within seven to ten days. The whole polygraph process lasted no more than two hours.

106.By letter dated November 4, 1998, from Charles S. Prouty, Chief, Bureau Applicant Recruiting and Selection Section, Administrative Services Division, FBI, John Doe#2 was notified that his conditional offer of appointment had been rescinded. The letter noted that the results of his polygraph examination were not within acceptable parameters. No other details regarding the results were provided. Following the receipt of this letter, John Doe#2 spoke with FBI Assistant Applicant Coordinator Donna Furlan. Ms. Furlan indicated that scheduling a second test was possible, and that if so the second examiner would not be aware of the results of the prior examination.

107.By letter dated November 14, 1998, John Doe#2 requested