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STEHNEY v. PERRY

November 13, 1995

ANN K. STEHNEY, Plaintiff,
v.
WILLIAM J. PERRY et al., Defendants.



The opinion of the court was delivered by: BROWN

 BROWN District Judge

 This matter comes before the Court on the motion of federal defendants, William J. Perry, Secretary of Defense, J. Michael McConnell, Director, National Security Agency/Central Security Service ("NSA"), Lee Hanna, Chief of Management Services for NSA, Jeanne Zimmer, current Chief of Management Services for NSA, to dismiss plaintiff's complaint pursuant to FED. R. CIV. P. 12(b)(1) & (6), and on the motion of nonfederal defendants, The Institute for Defense Analysis, Center for Communications Research ("IDA/CCR"), and David M. Goldschmidt, Director of IDA/CCR, for summary judgment pursuant to FED. R. CIV. P. 56. For the reasons set forth in this Memorandum Opinion, this Court will grant federal defendants' motion to dismiss Counts I through V of the Complaint. Further, this Court will deny nonfederal defendants' motion for summary judgment pursuant to FED. R. CIV. P. 56 and, instead, will dismiss Count VI of the Complaint pursuant to 28 U.S.C. § 1367.

 I. BACKGROUND

 A. The Polygraph Policy

 Access to SCI may be granted only after "a determination of trustworthiness has been made by agency heads or designated officials." Id. § 4.1(a). This judgment is intended to be "an overall common sense determination," see Director of Central Intelligence Directive No. 1/14 ("DCID No. 1/14") Annex A at 9 (Jan. 22, 1992), annexed to Declaration of Paul W. Naper ("Naper Dec.") as Exh. A1, made after a "thorough" background investigation "designed to develop information as to whether the individual clearly meets the SCI personnel standards." Id. P 7.a. at 3. The background investigation includes "records checks and personal interviews of various sources by trained investigative personnel," id. P 7.b. at 3, in the aid of which the subject is required to furnish fingerprints, and a personal-history statement delving into the subject's personal life. Id. P 7.c. at 3. The subject is also required to sign releases, "as necessary," of "police, credit, financial, education, and medical records," and may be required to provide photographs of herself. Id. In all cases, at least one interview of the subject is required, and "an additional personal interview will be conducted when necessary to resolve any significant adverse information and/or inconsistencies developed during the investigation." Id. P 8.d. at 4.

 Reinvestigations to determine continued eligibility for access to classified information must be conducted at least once every 5 years. Id. P 10.a. at 5. To facilitate the reinvestigation, the subject must furnish an updated personal history statement and sign appropriate releases. Id. P 10.b. at 5-6. "In all cases," the reinvestigation requires a "personal interview" addressing such matters as foreign assignments, connections and associations; approaches by foreign intelligence agencies; unreported breaches of security procedures; drug use; and criminal activities. Id.

 Since 1953, NSA has conducted all security-clearance interviews of agency employees with the aid of a polygraph. Department of Defense, The Accuracy and Utility of Polygraph Testing 11, annexed to Naper Dec. as Exh. A12. When IDA/CCR was created in 1959, however, D.O.D. allowed an exception for professional employees. See Memorandum of Louis J. Bonanni, Deputy Director for Administration at 1 (Dec. 11, 1980), annexed to Naper Dec. as Exh. A6. Non-professional employees, including administrators, clerical workers and security personnel, were required to undergo polygraphs. Id.

 D.O.D. reversed this policy in 1982, however, and authorized the use of polygraph interviews on an aperiodic basis, and in connection with security-clearance reinvestigations, for all personnel with access to SCI, including all contract employees. Periodic Reinvestigation Procedures for Individuals Cleared for Access to Sensitive Compartmented Information (SCI), Att. 1 at 1-2 to Memorandum of Frank Carlucci (Aug. 6, 1982), annexed to Naper Dec. as Exh. A7. One month later, NSA issued a directive that all "civilian, military and contractor personnel cleared for access to NSA SCI shall be requested to take polygraph examinations on an aperiodic basis at any time after their initial clearance," Memorandum of Lincoln D. Faurer at 1 (Sept. 27, 1982), annexed to Naper Dec. as Exh. A8, and IDA/CCR was instructed to inform its employees that the policy would go into effect on March 7, 1983. Letter of Philip T. Pease at 1 (Feb. 4, 1983), annexed to Naper Dec. as Exh. A9. The first use of the polygraph interview for professional personnel began on August 5, 1983. Memorandum of Louis J. Bonanni at 1 (Aug. 5, 1983), annexed to Naper Dec. as Exh. A10.

 B. The Polygraph

 The polygraph measures changes in blood pressure, pulse, respiration, muscular activity and electrodermal activity (perspiration on fingertips) in reaction to the questions asked during the interview. See JOHN E. REID & FRED E. INBAU, TRUTH AND DECEPTION 4 (1966). These patterns are simultaneously recorded on pen registers while the subject wears a pressure cuff on her arm, a light tube across her chest and abdomen, and painless electrodes on two fingertips. Id. at 4-5. The changes provide subtle indications of "stress or anxiety," Anderson v. Philadelphia, 845 F.2d 1216, 1218 (3d Cir. 1988), that might not otherwise be apparent to the interviewer. The theory of lie detection can be summarized as follows: the act of lying leads to conscious conflict; conflict induces fear or anxiety, which in turn results in clearly measurable physiological change. M.J. SAKS & R. HASTIE, SOCIAL PSYCHOLOGY IN COURT 192 (1978).

 Polygraph examinations are intended to be "supplementary to, not. . . a substitute for, other forms of investigation." D.O.D. Directive No. 5210.48, P 6 at 2, annexed to Naper Dec. as Exh. A4; D.O.D. Reg. No. 5210.48-R, Ch. 1, P A.5 at 1-1, annexed to Naper Dec. as Exh. A5. The results of the polygraph chart are "used during the security interview as an investigative tool with which to gather leads, encourage relevant disclosures, and identify areas of questioning that may need further development." See D.O.D. Reg. 5210, P 9 at 3. Therefore, whether favorable or unfavorable, "any final administrative determinations rendered in cases in which a polygraph examination is taken shall not be based on the results of an analysis of the polygraph charts," NSA/CSS Reg. No. 122-3 § Ill, P 6.a at 4, annexed to Naper Dec. as Exh. A3, but on information gathered independently.

 Two types of polygraph interviews are used by the NSA in the background screening process. For an initial clearance, a "full-scope" interview is conducted with respect to the following areas:

 
(1) verification of the person being interviewed;
 
(2) counterintelligence questions; and
 
(3) clarifications or elaborations of information provided on completed security forms or other information pertaining to the person's eligibility for a clearance.

 Id., § IV, P 7.a(1)(a)-(c). For aperiodic and reinvestigation examinations, a shorter "counter-intelligence ("CI")--scope" interview is used. Id. § III, P 7.b(1). This interview focuses narrowly on

 
(1) espionage or sabotage activities against the United States;
 
(2) deliberate damage to any government information system;
 
(3) deliberate disclosure of classified information to unauthorized persons; and
 
(4) undisclosed contacts with foreign nationals or representatives.

 Memorandum of David H. Schachnovsky at 1 (May 26, 1992), annexed to Naper Dec. as Exh. A11.

 Access to SCI "must be clearly consistent with the national security." NSA/CSS Reg. No. 122-06, P 4 at 2, annexed to Naper Dec. as Exh. A2, and "any doubt concerning a person's continued eligibility will be resolved in favor of the national security." Id. P 5 at 3. Because non-cooperation by the subject is an intolerable impediment to completion of the background investigation, "failure to provide required security forms, releases, and other data," or "refusing to undergo the required security processing or medical or psychological testing will normally result in a denial, suspension, or revocation of access [to SCI]." DCID No. 1/14 Annex A at 14. Specifically, "persons who refuse to take a polygraph examination in connection with determining their continued eligibility for access to specifically designated information in special access programs . . . may be denied access," D.O.D. Reg. No. 5210.48-R, Ch. 1, P A.5 at 1-1, regardless of any other information developed during the background investigation process.

 C. The Plaintiff

 In 1982, plaintiff Dr. Ann K. Stehney was a tenured mathematics professor at Wellesley College. Compl. P 11. Stehney accepted a part-time consulting position with IDA/CCR in the summer of 1982. Before beginning her work for IDA/CCR, however, NSA conducted a security investigation into Stehney's background. At the time of plaintiff's background check, the polygraph requirement for IDA professional personnel was not in effect. Stehney received access to SCI on June 8, 1982, and soon accepted a permanent, full-time position with IDA/CCR.

 In or around 1989, Stehney was advised that she was the subject of a routine background reinvestigation for continued access to SCI. Compl. P 19. Stehney was asked to submit to a polygraph and was informed that the polygraph examination was in connection with her 1989 reinvestigation. Compl. P 20. In August 1992, and at all subsequent times, Stehney conscientiously refused to submit to a polygraph examination in connection with her continued access to SCI. Id. Instead, Stehney asked that she be treated as if she had taken the polygraph examination and failed. Id.

 In or around May 1993, Stehney was informed that NSA had decided to deny her continued access to SCI because she refused to submit to a polygraph examination. Compl. P 21. In June 1993, plaintiff appealed the proposed revocation of her SCI access to the Director of NSA's Office of Security. Compl. P 23. Stehney filed a second appeal to defendant Hanna, Chief of Management services in September 1993, and made her final appeal to defendant Vice Admiral McConnell in January 1994, thereby exhausting all available administrative remedies. Compl. PP 22-23. Stehney's SCI clearance was terminated on January 15, 1994, and her employment by IDA/CCR was terminated shortly thereafter. Compl. PP 1, 14.

 Eleven months after her clearance was terminated, plaintiff filed suit in this court. Plaintiff's complaint sets forth six counts for relief. First, plaintiff argues that she is entitled to mandamus relief to force NSA officials to carry out certain duties alleged to be owed to her by regulation. Compl. P 52. In the second count of the Complaint, plaintiff maintains that "the procedures used to deprive [her] of her access to SCI and to deny her appeals thereof. . . deprived [her] of a property interest without due process of law." Compl. PP 58-65. The third count of the Complaint alleges that defendants' requirement that plaintiff submit to a polygraph examination was in contravention of the Fourth Amendment of the United States Constitution. Compl. PP 66-73. In Count IV, plaintiff avers that defendants' limited exemption from the polygraph examination lacked any rational basis and was granted solely to male employees in violation of the United States Constitution's guarantee of equal protection under the law. Compl. P 74. Plaintiff alleges in Count V that defendants' polygraph requirement violates New Jersey law and public policy. Compl. PP 85-86. Finally, in Count VI, plaintiff maintains that defendants violated New Jersey employment discrimination law by failing to assist plaintiff in her attempt to secure an exemption in the same manner defendants assisted male employees. Compl. PP 89-91.

 II. DISCUSSION

 A. STANDARD FOR A MOTION TO DISMISS

 A district court may grant a motion to dismiss for lack of subject matter jurisdiction pursuant to FED. R. CIV. P. 12(b)(1) based on the legal insufficiency of a claim. Dismissal pursuant to FED. R. CIV. P. 12(b)(1) is only proper, however, when the claim "'clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or. . . is wholly insubstantial and frivolous.'" Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1408-09 (3d Cir.), cert. denied, 501 U.S. 1222, 115 L. Ed. 2d 1007, 111 S. Ct. 2839 (1991) (quoting Bell v. Hood, 327 U.S. 678, 683, 90 L. Ed. 939, 66 S. Ct. 773 (1946)). On a FED. R. CIV. P. 12(b)(1) motion, plaintiff bears the burden of persuading the Court that subject matter jurisdiction exists. 926 F.2d at 1409. The factual allegations of plaintiff's complaint must be accepted as true. Mortensen v. First Federal S & L Ass'n, 549 F.2d 884, 891 (3d Cir. 1977).

 Federal defendants also move to dismiss certain claims in plaintiff's Complaint pursuant to FED. R. CIV. P. 12(b)(6). Such a motion may be granted only if, accepting all well pleaded allegations in the complaint as true, and viewing them in the light most favorable to plaintiff, plaintiff is not entitled to relief. Bartholomew v. Fischl, 782 F.2d 1148, 1152 (3d Cir. 1986); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3d Cir.), cert. denied, 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 (1985). The Court may not dismiss a complaint unless plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Angelastro, 764 F.2d at 944. "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 ...


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