Use of Polygraph Examinations in Investigating Disclosure of
     Information About Pending Criminal Investigations

T h e A tto rn e y G e n e ra l m ay o rd e r Ju stic e D e p a rtm e n t em p lo y ees to subm it to p o ly g ra p h
   tests to an sw er q u estio n s relatin g to p en d in g crim inal investigations, an d m ay d isc h a rg e
   an em p lo y ee fo r refusing to take such a test.

E v en w h e re an em p lo y ee is en titled to           be d isc h a rg e d o n ly “ fo r cau se," failure to
   c o o p e ra te w ith an official inv estig atio n      by taking a p o ly g ra p h test m ay c o n stitu te
   ad eq u ate cau se, as lo n g as th e em p lo y ee     is g iven reasonable assu ran ces resp ec tin g th e
   n eed fo r th e test an d th e use to w h ic h its    results m ay be put.

                                                                                       February 22, 1980

 M EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L

   You have asked us to consider the following questions regarding the
use o f polygraphs in investigating unauthorized disclosures of inform a­
tion about pending criminal investigations: (1) may a Justice D epart­
ment employee be dismissed for refusing to submit to a polygraph
test; and (2) may the results o f a polygraph test be used against the
employee |n (a) administrative proceedings and (b) criminal proceed­
ings? We conclude that the A ttorney G eneral may order D epartm ent
employees to submit to polygraph tests to answ er specific questions
relating to pending criminal investigations and that employees w ho
refuse to take polygraph tests may be discharged. If any em ployee is
threatened w ith dismissal for refusing to take a polygraph test, then any
evidence obtained through the test may not be used against the em­
ployee in a subsequent criminal proceeding. Em ployees should be
w arned prior to taking the test that their refusal to participate may lead
to their dismissal, but that nothing they say can or will be used against
them in a criminal proceeding. It is doubtful that evidence obtained by
way o f polygraph would, in any event, be admissible in a federal
criminal proceeding, unless the employee stipulates to its admissibility.

                           I. Polygraphs and Federal Employment

   T he use o f polygraphs for federal em ploym ent purposes has been the
subject o f controversy for a num ber o f years. T he discussion focuses on
tw o conflicting trends: the grow ing scientific acceptance o f the reliabil­
ity o f polygraphy and the increasing concern that polygraph examina­

                                                       421
 tions violate privacy rights and the F ourth, Fifth, and Fourteenth
 Amendments.
    In 1965, the House Com m ittee on G overnm ent O perations held hear­
 ings and issued a report on the use o f polygraphs by the federal
 governm ent. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). T he Com ­
 mittee R eport noted that 19 federal agencies used polygraphs; the most
 frequently reported purpose o f the use involved security matters. A
 total o f just under 20,000 tests w ere administered in 1963. Eight agen­
 cies used polygraphs to investigate employee misconduct. (The D epart­
 ment o f Justice indicated its use was limited to security and criminal
 matters.) T he Com mittee strongly criticized the use o f polygraphs; it
 concluded that the accuracy o f such tests was unproven and that
 operators w ere generally unqualified and undertrained. Id. at 1-2.
    In 1968, the Civil Service Commission prom ulgated regulations
 which prohibit use o f polygraphs in em ploym ent screening and person­
nel investigations for members o f the com petitive service, except for
national security purposes. This regulation, w hich does not apply to the
excepted service, is currently in force. Federal Personnel Manual chap­
ter 736, Appendix D .1
   Senator E rvin introduced a num ber o f bills which would have
prohibited the use o f polygraphs in the hiring or firing o f federal
employees and employees o f industries affecting interstate commerce. S.
2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973),
reprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th
Cong., 1st Sess. (1975). None o f these measures was enacted.
   A dditional congressional hearings w ere held in 1974 before the
House G overnm ent O perations C om m ittee.2 A D eputy Assistant A tto r­
ney G eneral for the Criminal Division testified that polygraphs had
proven useful in a small num ber o f investigations involving a “closed”
group o f persons— e.g., persons with access to stolen or embezzled
property. H ow ever, he noted that even in these circumstances, the
Criminal Division viewed the results “w ith caution and opposes their
introduction into evidence . . . .” Hearings at 414. A representative of
the Federal Bureau o f Investigation (FB I) testified that “the F B I’s
official position has always been that [it does] not consider polygraph
examinations sufficiently precise to perm it absolute judgm ent o f guilt or
non-guilt—lie o r truth—w ithout qualifications.” Id. at 418. He added,
how ever, that
        w ith proper ethics by the polygraph examiner and tight
        adm inistrative control by the user agency, there is no
        question but that the polygraph can be a valuable investi­

   ‘ T h e regulations require that agencies using polygraphs advise the individual o f his o r her privilege
against self-incrim ination and right to counsel. T h e individual must voluntarily consent to the exam ina­
tion and a refusal to consent may not be included in his o r h er personnel file.
   a The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee
on Government Operations, 93d C ong., 2d Sess. (1974) (" Hearings").


                                                   422
          gative aid to supplement interrogation in selected criminal
          and national security cases. Interrogation is a basic tool of
          any investigative agency and the FBI considers the poly­
          graph technique a thorough and specialized interview pro­
          cedure in which a skillful interrogator is attem pting to
          simply ascertain the truthful facts from a consenting indi­
          vidual regarding a m atter in which we have jurisdiction.
             In some instances suspects will admit deception and
          furnish confessions an d /o r signed statements. In most in­
          stances valuable new information or investigative direc­
          tion is developed as a result o f the examination and fol-
          lowup interrogation.
Id. at 419. T he use o f polygraphs was strongly criticized by the A m eri­
can Civil Liberties Union on constitutional and scientific grounds. Id.
at 2-84.
   A study prepared in 1974 by the staff o f the Subcommittee on
Constitutional Rights o f the Senate Judiciary Com mittee reached a
conclusion similar to the House Com mittee in 1965. It stated that
         [cjompulsory submission to a polygraph test is an affront
         to the integrity o f the human personality that is uncon­
         scionable in a society which values the retention o f indi­
         viduals’ privacy. . . . T he Congress should take legisla­
         tive steps to prevent Federal agencies as well as the
         private sector from requiring, requesting, or persuading
         any employee o r applicant for em ploym ent to take any
         polygraph tests.
Staff o f the Subcomm. on Constitutional Rights o f the Senate Comm,
on the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Em ploy­
ment, 17-18 (Comm. Print 1974). T he study also concluded, after re­
viewing the literature on polygraphs, that “doubt must be cast upon the
objectivity, accuracy, and reliability o f the polygraph test.” Id. at 9.
   Based on the above, it is clear that use o f polygraphs for federal
employment purposes remains controversial.3 While civil service regu­
lations prohibit their use for the com petitive service, Congress has been
made aw are that no prohibition exists regarding the excepted service.
Several bills that would have prohibited such use have not been
enacted.

          II. Attorney General’s Authority to Terminate Employment

  Analysis o f the authority o f the A ttorney G eneral to dismiss an
employee for refusing to submit to a polygraph examination must begin

   s States have taken an active role in limiting use o f polygraphs in the em ploym ent context. Eighteen
states have licensing procedures for polygraph examiners; IS states prohibit use o f polygraphs. See
C om m ent, Privacy: The Polygraph in Employment. 30 A rk. L. Rev. 35, 37-38 (1976).


                                                  423
w ith an understanding o f the statutory and regulatory protections af­
forded different classes o f D epartm ent employees.
   U nder the civil service laws, D epartm ent attorneys and employees of
the FBI are in the excepted service. 28 U.S.C. § 536 (FBI); 5 C.F.R.
§ 213.3102(d) (governm ent attorneys). T he Office o f Personnel Manage­
ment (OPM ), by regulation, has exempted personnel in the excepted
service from the statutory provisions regarding removal o f civil serv­
ants. See 5 C.F.R . § 752.401(c). H ow ever, persons in the excepted
service w ho are non-probationary “preference eligibles,”—primarily
veterans and the spouses and m others o f disabled and deceased veter­
ans—are afforded the civil service law protections. 5 U.S.C.
§ 7511(a)(1)(B). See id. § 2108 (defining “preference eligible”). T he civil
service law protections are substantive and procedural. A preference-
eligible em ployee may be rem oved “only for such cause as will pro­
mote the efficiency o f the service.” Prior to removal, an employee is
entitled to 30 days’ advance w ritten notice o f the reasons for the action,
a reasonable time to respond to the charges, the assistance of an attor­
ney, a w ritten decision, and an appeal to the Merit System Protection
Board (MSPB). 5 U.S.C. § 7513; D O J O rder 1752.1.
   D epartm ent employees w ho are in the excepted service and are not
preference-eligibles have no rights arising from a statute or OPM regu­
lation to a statem ent o f reasons for discharge or to an appeal from an
adverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978).
H ow ever, the D epartm ent is bound by its ow n substantive standards
and procedures even though the em ployee may have no legitimate
expectation o f continued em ploym ent and could, under relevant stat­
utes, be summarily discharged by the A ttorney G eneral at any time. See
 Vitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584
F.2d at 184; M azaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir.
1977). D epartm ent O rder 1752.1 (1975), as supplem ented by a M arch
27, 1979 notice, establishes minimal procedures for D epartm ent attor­
neys w ho are not preference-eligibles. C hapter 6 o f the order entitles
them only to “a letter o f term ination prior to the effective date o f the
term ination . . . [which provides] a brief statem ent o f the reasons for
the term ination.” 4
   Substantively, D epartm ent attorneys are provided no protections by
D epartm ent regulations. And since they are not covered by the “for
cause” standard o f the civil service laws, attorneys apparently serve at
the pleasure o f the A ttorney General. T he A ttorney G eneral’s authority
to rem ove Assistant United States A ttorneys (A U SA ) is expressly rec­
ognized by statute. See 28 U.S.C. § 542(b).
   T his conclusion must be qualified because o f recent cases that have
held that agency handbooks and informal understandings may establish

  4 FB I em ployees are excluded alto g eth er from D O J O rd e r 1752.1.


                                                    424
substantive protections for federal employees. In Ashton v. Cm letti, 613
F.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that “ the FBI has
fostered rules and understandings which [entitle an FBI employee] to
believe that he would lose his jo b only for a job-related reason.” 613
F.2d at 928.5 T he court recognized that FBI employees are in the
excepted service and that “ [standing alone, the exception could suggest
to an employee that he held his jo b at the sufferance o f his em ployer.”
It went on to find, how ever, that the FBI Handbook, Manual o f
Instructions, and the plaintiffs letter o f appointm ent created an implied
promise that the employee would be dismissed “only for failing to
perform his duties satisfactorily and w ithout prejudice to the F B I’s
achievem ent o f its law-enforcem ent mission.” 613 F.2d at 930. In es­
sence, the court held that FB I employees, even though placed in the
excepted service by statute, may be discharged only upon a finding o f
cause similar to that required for dismissal o f members o f the com peti­
tive service.6 Once it is determ ined that an employee has a legitim ate
claim to continued em ploym ent—Le„ that he o r she may be not be fired
at any time—then procedural due process applies: the em ployee must
be afforded a hearing and other procedural safeguards.
   We are unaw are o f any handbooks or guidelines upon w hich D ep art­
ment attorneys could rely to establish a legitimate claim to continued
employment. W e cannot, how ever, rule out the possibility that an
attorney could point to a letter o f appointm ent or to informal under­
standings which a court w ould deem sufficient to establish a property
interest.7
   In sum, the A ttorney G eneral probably has the authority to dismiss a
non-veteran D epartm ent attorney for any reason, and the attorney is
entitled only to a statem ent o f reasons for the discharge. N on-veteran
FBI agents probably may be discharged only for job-related reasons,
even though they are in the excepted service; they are entitled to a due
process hearing. D epartm ent employees w ho are veterans may be dis­
charged only for cause and are entitled to statutory, OPM and D O J
procedural rights.


    5 T he case concerned the F B I's discharge o f an em ployee because o f his adm itted hom osexuality.
T h e court held that (he em ployee w as entitled to a due process hearing prior to term ination to
determ ine w h eth er his hom osexuality constituted a jo b -related basis fo r his dismissal.
    6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D H andbook provides rules and
understandings creating legitim ate claim to continued em ploym ent for em ployees in the excepted
service); Colm v. Vance, 567 F.2d 1125 (D .C . Cir. 1977) (rem anding for consideration o f w h eth er the
Foreign Service A ct requires prom otion to be based solely on perform ance and m erit, even though
plaintiff could dem onstrate no constitutional p ro p erty entitlem ent to prom otion).
    7 F o r example, it is conceivable that a c o u rt could find that w hen an A U SA agrees to a 3-year
com m itm ent w ith a U.S. A tto rn ey 's Office, that that agreem ent constitutes a prom ise by the D e p art­
ment not to discharge the a tto rn ey d u rin g that period w ithout good cause. A c o u rt m ight also hold
that the D epartm ent's regulation requiring a statem ent o f reasons for term ination im plicitly requires
the. D epartm ent to have a “g o o d ” reason.


                                                    425
                                 III. What Constitutes “Cause”

   As noted above, the civil service laws authorize removal o f covered
civil servants “only for such cause as will prom ote the efficiency o f the
service.” 5 U.S.C. §7513. T he D.C. Circuit has similarly held that an
FB I em ployee may be dismissed “only for failing to perform his duties
satisfactorily and w ithout prejudice to the F B I’s achievem ent o f its law-
enforcem ent mission.” Ashton v. Civiletti, supra.6 T he question is
w hether failure to obey an order to submit to a polygraph examination
is sufficient cause for discharge under these standards. T he following
discussion assumes that at the time the em ployee is ordered to take the
test, the employee is assured both that he or she may be discharged for
refusing to take the test and that no inform ation obtained in the course
of, or as a result of, the examination may be used against him or her in
a subsequent criminal proceeding.9
   A t the minimum, failure to obey a legitimate order of a superior
constitutes insubordination—an offense punishable by removal. See FBI
Manual o f Instructions, Part I, § 1-20-2 (refusal to cooperate during an
interview regarding w ork-related m atters permits discipline for insubor­
dination); § 13, Schedule o f Offenses and Penalties for FB I Employees
(insubordination punishable by censure to removal). A refusal to submit
to a polygraph test also arguably impedes investigation o f governm ent
misconduct. It thus directly effects the efficiency o f the D epartm ent by
hindering removal o f offending employees and restoration o f public
confidence in the D epartm ent. T he Schedule o f Disciplinary Offenses
and Penalties for D O J Employees, included in D O J O rder 1752.1,
identifies the offense o f “refusal to cooperate in an official governm ent

    8 It is quite clear that the underlying co n d u ct—disclosure o f facts o f a pending criminal investiga­
tion—perm its rem oval o f the offending employees. T h e co nduct may violate various crim inal statutes
and plainly violates a num ber o f O PM and D O J standards o f conduct. See, e.g.. 5 C .F .R .
§§ 735.201a(c) (im peding governm ent efficiency); (e) (m aking a governm ent decision outside official
channels); (0 (affecting adversely the confidence o f the public in the integrity o f the governm ent);
73S.206 (misuse o f inform ation not made available to the general public); 735.209 (conduct prejudicial
to the governm ent); 28 C .F .R . §§ 45.735-2(c)(3) (im peding governm ent efficiency); (c)(6) (affecting
adversely the confidence o f the public in the integrity o f the governm ent); 45.735-10 (im proper use o f
official inform ation); 45.735-18 (1980) (conduct prejudicial to the governm ent).
    It is possible that an em ployee charged w ith unauthorized disclosure may assert a First A m endm ent
defense: that the governm ent may not constitutionally prohibit him o r her from com m enting on
m atters o f public im portance. W hile the em ployee may have an interest in com m enting upon m atters
o f public interest, this interest must be balanced against the g overnm ent's interest in prom oting the
efficiency o f the public services it perform s th ro u g h its em ployees. See Pickering v. Board o f Education,
391 U.S. 563 (1968). T h e D .C . C ircuit has identified the relevant factors in the “balancing test" as: the
sensitivity and confidential nature o f the em ployee’s position and the governm ent's consequently
legitim ate need for secrecy; the subject m atter o f the speech; the truth o r falsity o f the speech; the
interference w ith jo b perform ance; the context o f the speech; the effect o f the speech on agency
m orale and w orking relationships w ith im m ediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D .C .
Cir. 1980). It w ould appear that the g o vernm ent’s interest in preventing disclosure is at its maximum in
regard to inform ation relating to pending crim inal investigations.
    9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the
polygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v.
Sanitation Commissioner. 392 U.S. 280(1968).


                                                     426
inquiry” and lists the suggested discipline as “official reprimand to
removal.”
   T he obligation o f public officials to answer questions related to the
perform ance o f their public duties is well-recognized. T he Supreme
C ourt has upheld the right of public em ployers to fire employees solely
for their refusal to sign affidavits or answer questions related to their
fitness to perform their public functions. See, e.g., Lefkowitz v. Turley,
414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285;
Beilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are
based on the recognized public interest in the accountability of public
servants. This interest appears at its zenith when the integrity o f law-
enforcement activities is at stake. As stated by Justice Harlan,
          [I]t is surely plain that [a State] may . . . require its
          employees to assist in the prevention and detection o f
          unlawful activities by officers o f the state government.
          T he urgency o f these requirem ents is the m ore obvious
          . . . w here the conduct in question is that o f officials
          directly entrusted with the adm inistration o f justice. The
          im portance for our systems o f justice o f the integrity of
          local police forces can scarcely be exaggerated.
Garrity v. N ew Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J.,
dissenting).10
   Thus, if the use o f polygraphs is deemed a necessary part of an
investigation o f leaks, then a refusal to submit to such a test could
impede the investigation and consequently hinder the efficiency o f the
D epartm ent. D epartm ent standards o f conduct recognize the affirma­
tive duty o f employees to cooperate w ith official investigations, and
refusals to cooperate are deemed serious enough offenses to w arrant
removal in appropriate cases. W e can see no meaningful difference
between compelling an employee to answer questions or sign an affida­
vit and compelling an employee to submit to a polygraph test.11 While
the results o f the test may be open to question and debate, the refusal to
take the test may properly be characterized as conduct which does not
prom ote the efficiency o f the Departm ent. Accordingly, we believe
that an employee could be dismissed for refusing to take a polygraph
exam ination.12

    10 A lthough the C o u rt held in Garrity that the incrim inating statem ents o f a public official obtained
under threat o f dismissal could not be used in a criminal proceeding, the m ajority did not disagree
w ith Justice H arlan's statem ent regarding the public interest that public officers provide information
about the conduct o f their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968).
    11 We reach this conclusion even though w e recognize that the use o f a polygraph is a g reater
intrusion into an individual's privacy to the extent it probes unrelated m atter, private thoughts, and
beliefs.
    12 O ne district court has upheld the authority o f a city transit au th o rity to fire em ployees suspected
o f intoxication w ho refuse to submit to urinalysis o r blood tests. T he c ourt relied upon the Garrity line
o f cases for the proposition that public em ployees may be discharged for refusal to properly account
for the perform ance o f their duties. Division 241, Am algam ated Transit Union v. Suscy. 4fi5 F. Supp.
750 (N .D . III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976).


                                                     427
    An arguable objection to this conclusion may be phrased as follows.
 Polygraph tests have not achieved recognized acceptance among the
 courts and the experts as accurate indicators o f truth-telling. F or exam­
 ple, the test may show deception w here a truthful subject is nervous,
 tense, over-tired, or angry, or when an examiner asks misleading or
 inadequate questions. See United States v. Alexander, 526 F.2d 161, 165
 (8th Cir. 1975). Thus, w here an em ployee believes that the results of
 the polygraph will not be accurate, refusal to take the examination
 should not be grounds for removal.
    We believe that if the investigator can establish a reasonable basis for
the use o f the polygraph in the course o f the investigation, then a
 refusal by an em ployee to take the test would be impermissible, not­
 withstanding the subjective fear o f the employee. A reasonable basis
 would be established by showing the need for use o f the technology
and the state o f the art. W e believe that adequate scientific evidence
exists w hich w ould support an investigator’s decision that polygraphy
could be helpful in the pursuit o f the investigation. See, e.g., United
States v. D e Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam ), cert,
denied, 412 U.S. 907 (1973) (although holding that district court did not
abuse discretion in excluding polygraph evidence, court noted that
evidence “vigorously su p p o rted ] the accuracy o f polygraphic evi­
dence”); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert,
denied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence
w here parties stipulated admissibility; court could not conclude that
polygraph “is so unreliable as to be inadmissible in this particular
case”); Tarlow , Adm issibility o f Polygraph Evidence in 1975: An A id in
Determining Credibility In a Perjury-Plagued System, 26 Hastings L.J.
917 (1975).13 We recognize, how ever, that reliability of polygraphy
remains hotly contested, and courts o f appeal have perm itted introduc­
tion o f polygraph evidence only when the parties have stipulated to its
admissibility. See United States v. Alexander, supra (summarizing cases
and denying trend o f adm itting polygraph evidence); Hearings, supra . 14
   T he reasonableness o f the use o f a polygraph would be supported by
a record establishing the reason for its use, the expected accuracy of
the technology, the qualifications o f the examiner, and the reliance
upon other evidence to establish and corroborate the results o f the
investigation.15 Once the reasonable basis for the use o f polygraphy is
established, we do not believe than an employee can, with impunity,

    13 O ne factor frequently ciled by courts for excluding polygraph evidence is the probability that the
ju ry will acco rd it undue w eight. O f course, this concfern is nbt present w hen adm inistrative proceed­
ings are contem plated.
    14 T h e D .C . C ircuit continues to adhere to its per se rule against admissibility as established by the
leading case o f Frye v. United States, 293 F. 1013 (D .C . Cir. 1923). See United States v. Skeens, 494
F.2d 1050 (D .C . Cir. 1974).
    15 Presum ably, the quality o f the exam ination and the qualifications of the exam iner w ould be quite
high if the exam ination is co n d u cted by FB I polygraph experts.


                                                    428
refuse to take the examination any more than he or she could refuse to
submit to fingerprinting or blood-typing.

                      IV. Use of the Results of a Polygraph Test

   As long as the employee is promised that any evidence obtained in
the course of the polygraph test will not be used in a subsequent
criminal proceeding, the Fifth Am endm ent does not bar its use in an
administrative proceeding.16 O f course, such a promise, and the Fifth
Amendment, prohibit use in any criminal proceeding. Garrity v. New
Jersey, supra.

                                           V. Conclusion

   We conclude that the A ttorney General may discharge an employee
for refusing to take a polygraph examination w here the examination is
necessary to an official investigation of unauthorized disclosures about
pending criminal investigations, provided that the employee has been
w arned that failure to submit to the test could lead to his or her
dismissal and that nothing obtained in the examination will be used
against the employee in a subsequent criminal proceeding. Even if a
court were to hold that D epartm ent attorneys may only be discharged
“ for cause,” we conclude that, generally, failure to cooperate with an
official investigation is adequate cause, although each situation must be
evaluated on a careful case-by-case basis.

                                                         L arry A. H am m ond
                                                 Acting Assistant Attorney General
                                                      Office o f L egal Counsel




    16    Because o f the controversy surrounding the use o f polygraphs, it is possible than an em ployee
discharged solely on the basis o f polygraphic evidence w ould challenge the dismissal as arbitary and
irrational agency action. W e do not believe that, absent a judicially recognizable property or liberty
interest, an em ployee may challenge agency action as a violation o f due process unless the agency has
not followed its ow n regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341
(1976). A t least one court, how ever, has held that a governm ent decision is subject to challenge as
arbitrary and capricious even w here the em ployee has no pro p erty right in continued em ploym ent.
Heaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D .N .Y . 1973) (T yler, J.), a f f d on opinion below. 489
F.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results
o f a polygraph exam ination, the non-arbitrariness o f the action w ould depend upon such factors as the
quality o f the exam ination, the skill and training o f the exam iner, and the inherent credibility o f the
em ployee’s statements.

                                                  429
