The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge
Plaintiffs bring this action raising numerous claims in connection with their non-selection for employment by Defendants, the Federal Bureau of Investigation ("FBI") and the United States Secret Service ("Secret Service"). Specifically, Plaintiffs allege that they applied for employment with Defendants, that as part of the application process they were required to take a polygraph examination, and that as a result of that examination they were not offered employment. They contend that the polygraph testing is unreliable, that their "false positives" improperly served as the basis to deny them employment with these agencies, and these results affect their potential employment with other law enforcement agencies. Plaintiffs claim that the use of polygraph examinations in the application process violates the Administrative Procedure Act, 5 U.S.C. § 701 et seq., the Fifth Amendment, and the Constitutional right to privacy.
Pending before the Court are Plaintiffs' motion for summary judgment, and Defendants' motion to dismiss in part and for summary judgment. Upon consideration of the parties' motions, the responses and replies thereto, and the entire record, the Court determines that Plaintiffs' constitutional claims fail on the merits, and that their administrative claims are either barred for lack of jurisdiction, or fail on the merits. Therefore, for the reasons stated herein, Plaintiffs' motion is DENIED, and Defendants' motion is GRANTED.
The FBI conducts polygraph examinations of applicants for employment to the FBI.*fn2 DMF at 1. Plaintiff Brian Weiler ("Weiler") applied for the position of Special Agent with the FBI in 1997, and underwent a polygraph examination in December 1999. DMF at 3. Weiler did not pass the polygraph examination and his request for a second examination was denied. DMF at 3. Plaintiff Susan Wright ("Wright") applied for the position of physical scientist forensic examiner with the FBI, and underwent a polygraph examination in November 1999. DMF at 3-4. Wright did not pass the polygraph examination and her request for a second examination was denied. DMF at 4-5. The FBI rejected Weiler and Wright's applications for employment because they failed the polygraph examinations. DMF at 4; D's response at 4 n.3.
The Secret Service conducts polygraph examinations of applicants for employment for the position of Special Agent. DMF at 5. Applicants cannot proceed in the application process unless they pass the polygraph examination. DMF at 6. Plaintiff William Roche ("Roche") applied for the position of Special Agent with the Secret Service in 1999. DMF at 7. Roche did not pass two polygraph examinations and was not selected for employment as a Secret Agent. DMF at 7-8. Roche never applied for another law enforcement position after failing the Secret Service polygraph examination. DMF at 8.
Plaintiff Darryn Mitchell Moore ("Moore") applied for the position of Special Agent with the Secret Service in 1988. DMF at 9. Moore did not pass two polygraph examinations and was not selected for employment as a Special Agent. DMF at 9. Moore voluntarily left a law enforcement job with the Atlanta Police Department to pursue journalism, his educational major. DMF at 10.
Plaintiff Thomas Miller ("Miller") applied for the position of Special Agent with the Secret Service in 1994. DMF at 10. Miller did not pass two polygraph examinations and was not selected for employment as a Special Agent. DMF at 10-11. As of December 2003, Miller was working as a Special Agent with the Immigration and Customs Enforcement Agency, a law enforcement position within the Department of Homeland Security ("DHS"). DMF at 11.
Plaintiff Eileen Moynahan ("Moynahan") applied for a position of Special Agent with the Secret Service in 1993. DMF at 11. Moynahan did not pass three polygraph examinations and was not selected for employment as a Special Agent. DMF at 11-12. As of September 2003, Moynahan was working for the Drug Enforcement Agency ("DEA") as an intelligence research specialist, which is a law enforcement position. DMF at 12. Moynahan was hired in this position after disclosing to the DEA that she had failed the Secret Service's polygraph examination. DMF at 12-13.
Plaintiffs have brought three claims in this suit, alleging that: (1) Defendants' dissemination of the information that Plaintiffs failed polygraph examinations deprives them of their occupational and reputation-based liberty interests without due process; (2) Defendants violated their constitutional right to privacy because they asked questions regarding their medical, psychological, sexual, criminal, and drug use histories during the examinations; and (3) Defendants' use of the polygraph examination in the employment process violates the APA. Both parties seek summary judgment on all the claims. In addition, Defendants ask the Court to dismiss the non-constitutional claims for lack of jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
A motion under Rule 12(b)(1) presents a threshold challenge to the Court's jurisdiction. Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). The Court may resolve a Rule 12(b)(1) motion based solely on the complaint, or if necessary, may look beyond the allegations of the complaint to affidavits and other extrinsic information to determine the existence of jurisdiction. See id. at 908; Herbert v. Nat'l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992). The Court must accept as true all the factual allegations contained in the complaint, but the plaintiff bears the burden of proving jurisdiction by a preponderance of the evidence. Bennett v. Ridge, 321 F. Supp. 2d 49, 51-52 (D.D.C. 2004).
Summary judgment should be granted only if the moving party has shown that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In determining whether a genuine issue of material fact exists, the Court must view all facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The non-moving party's opposition, however, must consist of more than mere unsupported allegations or denials and must be supported by ...