Petitioner, V

Home , Damages (season 2), Security clearance

No. ______======

In The Supreme Court of the United States

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METROPOLITAN INTERPRETERS & TRANSLATORS, INC.,

Petitioner, v.

FRANCISCO BATES, et al.,

Respondents.

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On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit

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PETITION FOR A WRIT OF CERTIORARI

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RAUL L. MARTINEZ LEWIS BRISBOIS BISGAARD & SMITH LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 [email protected]

Counsel for Petitioner

======COCKLE LEGAL BRIEFS (800) 225-6964 WWW.COCKLELEGALBRIEFS.COM

QUESTIONS PRESENTED

1. Whether the Employee Polygraph Protection Act (“EPPA”), 29 U.S.C. §§ 2001 et seq., which prohibits private employers from directly or indirectly requiring, requesting, suggesting, or causing any employee to submit to a polygraph examination, supersedes the National Industrial Security Program Operating Man- ual (“NISPOM”), which explicitly authorizes federal agencies to require polygraphs of employees of federal contractors to determine their eligibility for a security clearance. 2. Whether the rule proscribing judicial review of Executive Branch security clearance determinations announced by this Court in Department of Navy v. Egan, 484 U.S. 518 (1988) extends to government contractors who assist the government in conducting polygraph examinations of the contractor’s employees to determine whether their security clearance should be revoked.

LIST OF PARTIES AND CORPORATE DISCLOSURE STATEMENT (RULE 29.6)

Petitioner Metropolitan Interpreters & Transla- tors, Inc. discloses it has no parent corporation, nor is there any publicly held corporation that owns 10% or more of its stock. Respondents are Francisco Bates; Richard Gonzalez; Maria Nielsen; Eduardo Ruvalcaba; Fernando Medina; Melany Duran; Elizabeth Sanchez; Lilia Palomino; and Maribel Taylor.

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TABLE OF CONTENTS Page QUESTIONS PRESENTED ...... i LIST OF PARTIES AND CORPORATE DISCLO- SURE STATEMENT (RULE 29.6) ...... ii TABLE OF AUTHORITIES ...... v PETITION FOR A WRIT OF CERTIORARI ...... 1 OPINIONS BELOW ...... 1 JURISDICTION ...... 1 CONSTITUTIONAL AND STATUTORY PROVI- SIONS INVOLVED...... 2 STATEMENT OF THE CASE...... 4 A. Metropolitan Provided Foreign-Language Translators Assisting The DEA In Inter- cepting And Translating Calls Involving Drug Cartels ...... 4 B. Metropolitan Cooperates With The DEA’s Demands That All Monitors Be Poly- graphed ...... 5 C. Proceedings In The District Court ...... 6 D. Proceedings In The Ninth Circuit ...... 7 REASONS FOR GRANTING THE PETITION ... 9 A. EPPA Conflicts With NISPOM Which Ex- pressly Requires Employees Of Govern- ment Contractors Accessing Sensitive Information To Submit To Polygraph Ex- aminations ...... 9

TABLE OF CONTENTS – Continued Page B. There Is Conflict Between The Circuits As To Whether Egan Applies To Government Contractors ...... 13 C. Alternatively, The Court Should Remand To The Ninth Circuit To Consider The Re- lationship Between EPPA And NISPOM, An Issue Which The Ninth Circuit’s Opin- ion Ignored ...... 21 CONCLUSION ...... 22

APPENDIX United States Court of Appeals for the Ninth Cir- cuit, Memorandum, dated August 3, 2018 ...... App. 1 United States District Court, Southern District of California, Order Granting in Part and Denying in Part Motions for Summary Judg- ment, dated October 24, 2014 ...... App. 7 United States District Court, Southern District of California, Plaintiffs’ Judgment, dated June 30, 2015 ...... App. 28 United States Court of Appeals for the Ninth Circuit, Order Granting Defendant’s Motion to Stay Issuance of the Mandate, dated Sep- tember 28, 2018 ...... App. 31 United States Court of Appeals for the Ninth Circuit, Order Denying Petitions for Rehear- ing and Rehearing En Banc, dated September 11, 2018 ...... App. 32

TABLE OF AUTHORITIES Page

CASES Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ...... 7 Baker v. Carr, 369 U.S. 186 (1962) ...... 20 Beattie v. Boeing Co., 43 F.3d 559 (10th Cir. 1994) ...... 7, 14, 15, 16 Becerra v. Dalton, 94 F.3d 145 (4th Cir. 1996) ...... 14 Brazil v. United States Dep't of the Navy, 66 F.3d 193 (9th Cir. 1995) ...... 14, 20 Cejka v. Vectrus Sys. Corp., 291 F.Supp.3d 1231 (D. Colo. 2018) ...... 11 Department of the Navy v. Egan, 484 U.S. 518 (1988) ...... passim Dorfmont v. Brown, 913 F.2d 1399 (9th Cir. 1990) ...... 14 Jacobs v. Experts, Inc., 212 F.Supp.3d 55 (D.D.C. 2016) ...... 10 Lincoln v. Vigil, 508 U.S. 182 (1993) ...... 12 Makky v. Chertoff, 541 F.3d 205 (3d Cir. 2008) ...... 18 Panessa v. Johns Hopkins Univ. Applied Physics Lab., 2015 Md. App. LEXIS 1140 (App. June 10, 2015) ...... 10 Panoke v. United States Army Military Police Brigade, 2009 U.S. App. LEXIS 11551 (9th Cir. 2009) ...... 19 Ryan v. Reno, 168 F.3d 520 (D.C. Cir. 1999) ...... 16 Stephenson v. Nassif, 160 F.Supp.3d 884 (E.D. Va. 2015) ...... 10

TABLE OF AUTHORITIES – Continued Page Toy v. Holder, 714 F.3d 881 (5th Cir. 2013) ...... 10 United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) ...... 12 United States v. Hawkins, 249 F.3d 867 (9th Cir. 2001) ...... 14 Zeinali v. Raytheon Co., 636 F.3d 544 (9th Cir. 2011) ...... 8, 18

CONSTITUTIONAL PROVISIONS U.S. Const., Article II, § 2 ...... 7

STATUTORY AUTHORITIES 28 U.S.C. § 1254(1) ...... 1 29 U.S.C. §§ 2001 et seq...... 6 29 U.S.C. § 2002 ...... 2 29 U.S.C. §§ 2002(1), (2), and (3) ...... 1, 6 29 U.S.C. §§ 2006(b)-(c) ...... 12

ADDITIONAL AUTHORITIES Black’s Law Dictionary, 1201 (9th ed. 2009) ...... 21 Executive Order 12,829, § 201 ...... 9, 10 NISPOM § 1-204 ...... 11 NISPOM § 1-300 ...... 11 NISPOM § 2-201(c) ...... 2, 8, 11 NISPOM § 6-105(c) ...... 11

PETITION FOR A WRIT OF CERTIORARI Petitioner Metropolitan Interpreters & Transla- tors, Inc. respectfully petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

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OPINIONS BELOW The opinion of the court of appeals (App. 1) is available at Bates v. Metro. Interpreters & Translators, Inc., 2018 U.S. App. LEXIS 21597 (9th Cir. Aug. 3, 2018). The order of the court of appeals denying a rehearing and rehearing en banc (App. 32) is unreported. The district court’s order granting partial summary judgment in favor of Plaintiffs and finding that Metro- politan violated 29 U.S.C. §§ 2002(1), (2) and (3) (App. 7) is available at M.G. v. Metropolitan Interpreters & Translators, Inc., 62 F.Supp.3d 1189 (2014). The judgment on the verdict in favor of Plaintiffs is attached as App. 28.

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JURISDICTION The judgment of the court of appeals was entered on August 3, 2018, and a timely petition for rehearing and rehearing en banc was denied on September 11, 2018. This Court has jurisdiction under 28 U.S.C. § 1254(1).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED The National Industrial Security Program Oper- ating Manual (“NISPOM”), promulgated under Execu- tive Order 12,829, states in pertinent part that federal agencies may require polygraphs of employees of federal contractors to determine their eligibility for a security clearance, as follows: c. Polygraph. Agencies with policies sanctioning the use of the polygraph for PCL [personnel security clearance] purposes may require polygraph examinations when necessary. If issues of concern surface during any phase of security processing, coverage will be expanded to resolve those issues. NISPOM § 2-201(c). 29 U.S.C. § 2002 provides: Prohibitions on lie detector use Except as provided in 7 and 8 [29 USCS §§ 2006, 2007], it shall be unlawful for any employer engaged in or affecting commerce or in the production of goods for commerce – (1) directly or indirectly, to require, request, suggest, or cause any employee or prospective employee to take or submit to any lie detector test; (2) to use, accept, refer to, or inquire con- cerning the results of any lie detector test of any employee or prospective employee;

(3) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against – (A) any employee or prospective employee who refuses, declines, or fails to take or submit to any lie detector test, or (B) any employee or prospective employee on the basis of the results of any lie detector test; or (4) to discharge, discipline, discriminate against in any manner, or deny employment or promotion to, or threaten to take any such action against, any employee or prospective employee because – (A) such employee or prospective employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act [29 USCS §§ 2001 et seq.], (B) such employee or prospective employee has testified or is about to testify in any such proceeding, or (C) of the exercise by such employee or prospective employee, on behalf of such employee or another person, of any right afforded by this Act [29 USCS §§ 2001 et seq.].

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STATEMENT OF THE CASE A. Metropolitan Provided Foreign-Language Translators Assisting The DEA In Intercept- ing And Translating Calls Involving Drug Cartels. Petitioner/Defendant Metropolitan is a federal contractor that provides the DEA and ICE with foreign language interpreters and translators. The Plaintiffs/ Respondents worked in secure DEA facilities in Cali- fornia, near the U.S. border with Mexico, translating extremely sensitive “intercepted” Spanish-language calls from known or suspected drug traffickers. Plain- tiffs all signed SF-86 Forms (“Questionnaire for Na- tional Security Positions”) which are used to determine eligibility for access to sensitive information, not just classified information, and to determine eligibility for access to federally controlled facilities and information systems. For example, in signing the 2008 SF-86 Form Plaintiffs agreed that it “may be used as the basis for future investigations, eligibility determinations for access to classified information, or to hold a sensitive position, suitability or fitness for Federal employment, fitness for contract employment, or eligibility for phys- ical and logical access to federally controlled facilities or information systems.”1

1 Standard Form 86, Rev’d December 2010, available at https://www.opm.gov/forms/pdf_fill/sf86-non508.pdf (last visited December 5, 2018).

B. Metropolitan Cooperates With The DEA’s De- mands That All Monitors Be Polygraphed. In 2010, the DEA discovered that one of the monitors was the brother of the target of a suspected drug trafficker. The DEA demanded that all monitors in the San Diego area submit to polygraphs, fearing that drug traffickers had penetrated its wiretapping operation in San Diego, putting everyone working in the facility at risk. The DEA demanded that Metropolitan assist and coordinate the polygraph examinations. Consistent with federal law and the SF-86 Forms all signed by Plaintiffs, the DEA had the right to investigate monitors at any time, using any method “deemed appropriate” by the DEA, and to revoke or suspend security clearance or facility access at any time without notice or explanation. In addition, Metropolitan’s contract with the DEA required that it “cooperate fully” with all security clearance investigations. After conducting the polygraphs, the DEA sus- pended or revoked security clearance and facility access for all monitors who refused to be polygraphed or who had a “significant response” during the polygraph to questions about disclosing sensitive information to criminal organizations or falsifying information on an SF-86 Form. Metropolitan assisted the DEA by sched- uling polygraphs for employees and encouraging them to take the polygraphs. Metropolitan did not control who was polygraphed, who conducted the testing, what questions were asked, whether there were additional interviews, or who “passed” or “failed.” Because a security clearance was a prerequisite for working in secure

DEA facilities, Metropolitan was forced to lay off monitors, like Plaintiffs, who lost clearance.

C. Proceedings In The District Court. Plaintiffs then sued Metropolitan for violating the Employee Polygraph Protection Act (“EPPA”), 29 U.S.C. §§ 2001 et seq., which was enacted by Congress in 1988. EPPA prohibits private employers from directly or indirectly requiring, requesting, suggesting, or causing any employee to submit to a polygraph examination; from using, accepting, referring to, or inquiring about polygraph results; and from discharging, disci- plining, discriminating in any manner, denying employment or promotion to, or threatening such action against any employee who refuses, declines or fails to take a polygraph test, or any employee on the basis of the polygraph results. 29 U.S.C. §§ 2002(1), (2) and (3). Plaintiffs alleged that Metropolitan directly or indirectly required, requested, suggested, or caused Plaintiffs, who were its employees, to take or submit to the polygraphs in violation of 29 U.S.C. § 2002(1). Plaintiffs’ alleged harms were premised on actions taken by the DEA as part of a security clearance investigation which led to their suspension and ultimately denial of their security clearance. Plaintiffs acknowl- edged that if they “ ‘failed’ or refused the [polygraph] test, or had inconclusive results, they would lose their ‘clearance’ to be in the DEA offices, meaning that they would be terminated from their jobs.” (4 ER 615.)

The district court found that Metropolitan violated EPPA and granted partial summary judgment in favor of Plaintiffs on liability. (App. 7.) The case then proceeded to trial and Plaintiffs obtained a multimil- lion dollar jury verdict on the theory that Metropolitan violated EPPA when it cooperated with the DEA in polygraphing Plaintiffs. The district court awarded Plaintiffs $916,998.37 in fees and $21,824.15 in costs under EPPA.

D. Proceedings In The Ninth Circuit Metropolitan argued on appeal that the district court and the court of appeals lacked subject matter jurisdiction pursuant to Department of the Navy v. Egan, 484 U.S. 518 (1988), which held that decisions regarding the issuance or revocation of a security clearance are not reviewable.2 Egan relied on the sep- aration of powers doctrine and Article II, § 2 of the Constitution, which confers on the Executive Branch the exclusive right to control access to classified information and to determine whether an individual is sufficiently trustworthy to be given access to such information. Egan, 484 U.S. at 527. Metropolitan also relied on Beattie v. Boeing Co., 43 F.3d 559 (10th Cir. 1994), which held that courts

2 Metropolitan raised the question of subject matter jurisdiction for the first time on appeal. However, the defense of lack of subject matter jurisdiction is never waived and can be raised at any time, even for the first time on appeal. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006).

8 may not review national security clearance decisions made by either the government or a federal contractor acting on behalf of the government. Metropolitan fur- ther argued that under the National Industrial Secu- rity Program Operating Manual (“NISPOM”), which was promulgated under Executive Order 12,829, the DEA was given the discretion to polygraph monitors as it deemed necessary. See NISPOM Section 2-201(c) (16 SER 3366). Metropolitan’s contract with the DEA (the BPA) similarly gave the DEA wide latitude to “conduct any and all inquiries or investigations deemed appropriate. . . .” (11 SER 2552, ¶2.) In affirming the district court, the Ninth Circuit, in a memorandum opinion authored by Circuit Judges Wardlaw, Nguyen, and Owens, held that “Metropolitan is not the DEA, and the linguists challenge Metropoli- tan’s conduct surrounding the polygraphs, not whether or not they actually failed polygraphs.” (App. 3.) Citing Zeinali v. Raytheon Co., 636 F.3d 544, 549-550 (9th Cir. 2011), the court of appeals adopted an overly narrow view of Egan by concluding that Egan is limited to circumstances where a court is asked to review the “merits” of a security clearance decision, whereas Met- ropolitan’s conduct was “merely connected to the government’s security clearance decision.” (App. 3.) In its petition for rehearing, Metropolitan argued inter alia that the Ninth Circuit had failed to address Metropolitan’s argument regarding the conflict between EPPA and NISPOM, and specifically, that NISPOM expressly allows what EPPA prohibits – i.e., polygraphing of government contractor employees in

9 connection with security clearance determinations. The Ninth Circuit’s memorandum opinion also did not address the fact that Metropolitan’s contract with the DEA required that it cooperate with the DEA’s security clearance investigation and that Plaintiffs had all signed security clearance applications (SF-86 Forms) in which they agreed to be bound by the conditions required by the DEA to maintain their security clearances. Because the district court had granted partial summary judgment against Metropolitan on liability and had determined that Metropolitan had violated EPPA by assisting the DEA in polygraphing Plaintiffs, Metropolitan’s hands were tied in defending the case at trial.

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REASONS FOR GRANTING THE PETITION A. EPPA Conflicts With NISPOM Which Ex- pressly Requires Employees Of Government Contractors Accessing Sensitive Information To Submit To Polygraph Examinations. This petition should be granted to resolve the intractable conflict between EPPA and NISPOM. NISPOM expressly allows the polygraphing of employees of federal contractors, whereas EPPA generally prohibits polygraphs of employees of private employers. NISPOM is a 141-page operating manual promulgated under Executive Order 12,829, which sets standards for contractors, like Metropolitan, handling

classified information and expressly allows the polygraphing of employees of federal contractors. (SER 3339-3479.)3 The purpose of NISPOM is to “prescribe specific requirements, restrictions, and other safe- guards that are necessary to preclude unauthorized disclosure and control authorized disclosure of classified information to contractors, licensees, or grantees.” Executive Order 12,829, § 201. NISPOM “governs national security related to contractors [and] broadly states that contractors shall be subject to the same security requirements as are members of the Executive Branch. . . .” Toy v. Holder, 714 F.3d 881, 886 (5th Cir. 2013). See also Stephenson v. Nassif, 160 F.Supp.3d 884, 888 (E.D. Va. 2015); Panessa v. Johns Hopkins Univ. Applied Physics Lab., 2015 Md. App. LEXIS 1140, *12-13 (App. June 10, 2015); Jacobs v. Experts, Inc., 212 F.Supp.3d 55, 91-92 (D.D.C. 2016) (NISPOM requires contractors to convey adverse information to the agency regarding cleared personnel.). NISPOM explicitly states that federal agencies may require polygraphs of contractor employees as part of security clearance investigations: “Agencies with policies sanctioning the use of the polygraph for PCL [personnel security clearance] purposes may require polygraph examinations when necessary. If issues of

3 NISPOM provides that classified information can fall within one of three categories: “top secret,” “secret,” or “confiden- tial.” (16 SER 3375.) NISPOM can be found at http://www.dss. mil/documents/odaa/nispom2006-5220.pdf (last visited December 5, 2018).

concern surface during any phase of security processing, coverage will be expanded to resolve those issues.” NISPOM § 2-201(c). (SER 3366.) NISPOM provides that: “Contractor employees at government installations shall follow the security requirements of the host. However, this does not relieve the contractor from security oversight of their employees who are long-term visitors at government installations.” NISPOM § 6-105(c). (SER 3403.) NISPOM also requires contractors to report certain events that have an impact on the status of the facility clearance, that impact on the status of an employee’s personnel security clearance (PCL), that affect proper safeguarding of classified information, or that indicate classified information has been lost or compro- mised. Cejka v. Vectrus Sys. Corp., 291 F.Supp.3d 1231, 1250-1251 (D. Colo. 2018); NISPOM § 1-300.4 In direct contrast, EPPA prohibits private employers from directly or indirectly requiring, requesting, suggesting, or causing any employee to submit to a polygraph examination or to discharge or discipline any employee who refuses, declines or fails to take a

4 NISPOM § 1-204 states: “Cooperation includes providing suitable arrangements within the facility for conducting private interviews with employees during normal working hours, providing relevant employment and security records for review when requested, and rendering other necessary assistance.”

polygraph test, or on the basis of the polygraph results. While EPPA provides exemptions for certain govern- mental agencies “in the performance of any counterin- telligence function[s]” and for purposes of criminal investigation (29 U.S.C. §§ 2006(b)-(c)), the DEA is not included in that list. Thus, while EPPA exempts contractors of the Defense Department, Department of Emergency, National Security Agency, Defense Intelli- gence Agency, National Imagery and Mapping Agency, CIA and FBI from EPPA’s prohibition on polygraphs, the DEA is not included among these agencies. How- ever, the fact that EPPA does not contain a specific ex- emption for the DEA or for polygraphs conducted in the context of security clearance investigations only begs the question regarding the conflict between NISPOM and EPPA. At its core, this conflict between EPPA and NISPOM presents a conflict between the powers of Congress, on one hand, and the powers of the Executive Branch, on the other. NISPOM should control in this case because the power of the executive branch to control access to classified information necessarily exists independently of Congress. Lincoln v. Vigil, 508 U.S. 182, 192 (1993); Egan, 484 U.S. at 527 (authority to classify and control access to information bearing on national security “flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant”); United States v. Curtiss- Wright Export Corp., 299 U.S. 304, 320 (1936) (exercise of presidential power does not require an act of Con- gress as a basis for its exercise).

This petition presents an important question of federal law that has not been, but should be, settled by this Court. While Metropolitan’s assistance and cooperation with the DEA was in full compliance with NISPOM, Metropolitan was found to be in violation of EPPA by the district court and the Ninth Circuit. The conundrum still exists and will apply to the conduct of any federal government contractor and its employees handling classified information.

B. There Is Conflict Between The Circuits As To Whether Egan Applies To Government Contractors. This petition also raises the question whether courts can exercise judicial review of executive branch decisions granting or revoking security clearances where the federal government employs government contractors, like Metropolitan, to perform or assist in performing such functions. In the present case, the Ninth Circuit refused to apply the principles that un- derlie Egan to government contractors. In Egan, the Court held that there is no judicial review of the merits of security clearance determinations. Egan, 484 U.S. at 529-530. Egan explained that the issuance or non-issuance of a security clearance is a discretionary decision made exclusively by the Exec- utive Branch, which cannot be second-guessed by the judiciary. Id. at 528-530. Egan reasoned that because a determination to grant or revoke a clearance is based on a prediction of an individual’s potential to

14 compromise sensitive information, it is “not reasonably possible for an outside nonexpert body to review the substance of such a judgment and to decide whether the agency should have been able to make the necessary affirmative prediction with confidence.” Id. at 529. In assessing security clearance risks, courts cannot “determine what constitutes an acceptable margin of error in assessing the potential risk.” Id. Egan has been followed by numerous court of appeals’ opinions. See, e.g., Dorfmont v. Brown, 913 F.2d 1399, 1401 (9th Cir. 1990) (judicial review of security clearance decisions made by the Executive Branch are not reviewable by federal courts); United States v. Hawkins, 249 F.3d 867, 873 n.2 (9th Cir. 2001) (“courts have long recognized that the Judicial Branch should defer to decisions of the Executive Branch that relate to national security”); Becerra v. Dalton, 94 F.3d 145, 149 (4th Cir. 1996) (courts may not review actions aris- ing out of revocations of security clearances, including the “instigation of the investigation into the security clearance as a form of retaliation”); Brazil v. United States Dep’t of the Navy, 66 F.3d 193, 197 (9th Cir. 1995) (Title VII claim is nonreviewable where the res- olution of the claim would necessarily require an eval- uation of whether the reasons for revoking the security clearance were valid.). The Ninth Circuit’s conclusion that “Metropolitan is not the DEA” conflicts with the Tenth Circuit’s decision in Beattie v. Boeing Co., 43 F.3d 559 (10th Cir. 1994). Beattie held that Egan applies whether the

government or the contractor is responsible for the denial of a security clearance. In Beattie, Boeing contracted with the United States to build two “Air Force One” planes. Boeing’s contract with the government provided that only the Air Force could grant “unescorted access” clearances to the facility, but Boeing could grant escorted access, subject to Air Force override. Id. at 560. The Plaintiff, an employee of Boeing, contended that Boeing’s refusal to give him a security clearance and access to a secured area violated his constitutional rights and entitled him to recover damages from the contractor. The Plaintiff brought a Bivens action alleging that his employer, Boeing, caused him reputational harm, lost promo- tional opportunities, and mental distress which he suf- fered after Boeing refused to grant him access to the secure worksite where Air Force One was being assem- bled. Id. at 562. Beattie held that courts could not review national security clearance decisions made by either a government contractor or by the contracting agency. Beattie explained: To be sure, the case before us involves a private party rather than a government agency. However, Boeing’s limited authority to grant or deny escorted access clearance derived solely from its contract with the Air Force. . . . Boeing’s authority was thus delegated to it by the Air Force, and hence by the Executive Branch. We see no compelling reason to treat the security clearance decision by Boeing

differently than the similar decision made by the Air Force. Both decisions represent the exercise of authority delegated by the Executive Branch and are entitled to appropriate defer- ence by the federal courts. . . . Therefore, we conclude that we may not review Boeing’s action or that of the Air Force in denying Beattie access to the Air Force One area. Id. at 566 [emphasis added]. Just as Boeing’s denial of access to secured facilities is not subject to judicial review under Egan, nei- ther can Metropolitan’s actions in assisting the DEA in its security clearance investigation be the subject of judicial review. Whether constituting a violation of EPPA or not, such conduct is not reviewable. The Ninth Circuit attempted to draw a distinction between federal contractors, like Metropolitan, and the DEA by stating that “Metropolitan is not the DEA, and the linguists challenge Metropolitan’s conduct surrounding the polygraphs, not whether or not they actually failed polygraphs.” (App. 3.) This attempted distinction misses the mark. Plaintiffs’ claims against Metropolitan under EPPA constituted at least an indi- rect challenge to the propriety of the DEA’s conduct in requiring polygraph examinations. Plaintiffs’ allegations call into question the methods, merits and motivation behind the DEA’s security clearance decisions. Plaintiffs’ claims, while disguised as claims under EPPA, were clearly premised on the improper revocation of their security clearances. Ryan

v. Reno, 168 F.3d 520, 524 (D.C. Cir. 1999) (“[U]nder Egan an adverse employment action based on denial or revocation of a security clearance is not actionable under Title VII.”). In fact, Plaintiffs directly alleged that they were terminated because of the “results” of the polygraphs or for “failing” the polygraphs, thereby implicating the “merits” of the security clearance determinations. (4 ER 686.) Plaintiffs alleged: 106. Metropolitan discharged, disci- plined and discriminated against the Plain- tiffs based on the results of the lie detector test or their refusal to submit to a test. 107. Metropolitan threatened to discharge, discipline, or discriminate against Plaintiffs for refusal or failure to take or submit to a lie detector test. 108. Metropolitan threatened to discharge, discipline, or discriminate against Plaintiffs on the basis of the results of a polygraph test. 109. Metropolitan discharged Plain- tiffs for “failing” the polygraph. 110. As a direct and proximate result of Metropolitan’s actions, Plaintiffs were sub- jected to . . . , loss of employment, and . . . are entitled to compensatory damages, attor- ney fees and punitive damages. (4 ER 0686 [emphasis added].)

In its opinion, the court of appeals cited Zeinali v. Raytheon Co., 636 F.3d 544, 549-550 (9th Cir. 2011) for the proposition that federal courts have jurisdiction to decide claims that do not necessarily require consider- ation of the merits of a security clearance decision, as long as they remain vigilant not to question the motivation behind the decision to deny the plaintiff ’s security clearance. See also Makky v. Chertoff, 541 F.3d 205, 213 (3d Cir. 2008). The court of appeals’ interpretation of Zeinali, and in turn of Egan, is too narrow. Egan implicates not only the merits of a security clearance investigation, but also the methods used in conducting such investigations – in this case, whether the DEA could use polygraphs as a means to determine whether Metro- politan’s monitors’ security clearances should be revoked. Plaintiffs’ claims, while cloaked under EPPA, raised various nonjusticiable issues regarding the effi- cacy of polygraphs which included: • Whether polygraph examinations are re- liable when used in connection with drug enforcement security clearance investigations and in the government’s fight against drug trafficking and cartels. • Whether the potential benefits, as per- ceived by the DEA, of using polygraphs in security clearance investigations, out- weighed the potential downside given that the accuracy and reliability of polygraphs has been questioned in the

scientific community and that they are generally inadmissible in court. • Whether specific questions asked by DEA polygraph examiners were overly intru- sive, invaded Plaintiffs’ privacy or caused them emotional distress. • Whether answers given during examinations were truthful and whether the monitors “passed” or “failed” the examination. • Whether the types of questions asked during examinations could compromise the DEA’s investigation, or the names of targets and DEA agents. • Whether Plaintiffs’ “significant responses” to certain questions justified suspending or revoking their security clearance. • Whether the examiners were properly trained and credentialed to conduct polygraph examinations. Plaintiffs’ claims were therefore inextricably intertwined with the DEA’s security clearance and facility access determinations and were therefore nonjusticiable. Egan, 484 U.S. at 530-533. Indeed Plaintiffs were awarded damages not merely for being polygraphed, but for the consequences of the loss of their security clearance, i.e., the loss of their employment with Metropolitan. See Panoke v. United States Army Military Police Brigade, 2009 U.S. App. LEXIS 11551, *2 (9th Cir. 2009) (“A review of the circumstances

20 surrounding a security clearance is tantamount to a review of the security clearance itself.”). Moreover, whether in enacting EPPA Congress intended to allow polygraphs in this context is im- material since justiciability does not depend on Congressional authorization, but on whether judicial review would interfere with the prerogatives of a coordinate branch of government and require a court to make decisions beyond areas of judicial expertise. Baker v. Carr, 369 U.S. 186, 217 (1962). The test under Egan is whether Congress unmistakably intended to allow judicial review of security clearance decisions. “[U]nless Congress specifically has provided otherwise, courts traditionally have been reluctant to intrude upon the authority of the Executive in military and national security affairs.” Egan, 484 U.S. at 530 (emphasis added). There must be an “unmistakable expression of purpose” for a court “to conclude that Congress intended security clearance decisions to be subject to judicial review.” Brazil, 66 F.3d at 197. Finally, the fact that the DEA, rather than Metro- politan, conducted the polygraph examinations does not alter the import of Egan. The central point is that Plaintiffs were challenging Metropolitan’s adverse employment determinations which were based on the revocation of their security clearance, issues which the courts are not in a position to review.

C. Alternatively, The Court Should Remand To The Ninth Circuit To Consider The Rela- tionship Between EPPA And NISPOM, An Issue Which The Ninth Circuit’s Opinion Ig- nored. The Ninth Circuit’s five-page memorandum opinion does not address the important issues raised in this case. Significantly, the opinion does not address NISPOM or the conflict between EPPA and NISPOM, discussed above. NISPOM has the force of law just as much as EPPA. Yet the court’s memorandum opinion decided this case as if NISPOM did not exist. In its petition for rehearing, Metropolitan again raised the sig- nificance of NISPOM, and the conflict between EPPA and NISPOM, but to no avail. Metropolitan submits that this appeal deserved more than a five-page memorandum opinion. The court dismissed Metropolitan’s jurisdictional challenge under Egan by way of a mere two-sentence paragraph even though both parties had briefed the issue of subject matter jurisdiction extensively. Memorandum opinions are generally reserved for cases where “the decision follows a well-established legal principle.” Black’s Law Dictionary, 1201 (9th ed. 2009). However, the issues raised in this case are hardly routine or uncontroversial. Important cases can otherwise “fly under the radar,” thereby avoiding certiorari review by this Court. Metropolitan therefore submits that the Court should, as an alternative, vacate the Ninth Circuit’s

opinion and remand the matter to the Ninth Circuit with instructions to grant a rehearing and/or issue a more detailed explanation of its reasoning for affirming the judgment of the district court.

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CONCLUSION The petition for a writ of certiorari should be granted. Alternatively, the Court should vacate the court of appeals’ opinion and remand the matter to the Ninth Circuit to address the issues omitted from its opinion, including the conflict between EPPA and NISPOM. Respectfully submitted,

RAUL L. MARTINEZ LEWIS BRISBOIS BISGAARD & SMITH LLP 633 West 5th Street, Suite 4000 Los Angeles, CA 90071 Telephone: (213) 250-1800 Facsimile: (213) 250-7900 [email protected] Counsel for Petitioner December 10, 2018