What legal avenues exist for applicants who contest a federal polygraph “unsuccessful” finding?
Executive summary
Federal applicants told a polygraph was “unsuccessful” have several administrative and legal pathways: internal agency appeals and retesting, requests for corroborating adjudicative information under clearance guidance, Freedom of Information Act requests to obtain underlying records, and in some cases litigation challenging agency procedure or seeking review under statutes like the Administrative Procedure Act or the Civil Service Reform Act — though courts and agencies differ on what review is available [1] [2] [3] [4].
1. Administrative appeals inside the hiring or clearance agency
Most immediate remedies come through the agency that administered the polygraph: applicants can ask for an explanation, request a retest or a formal appeal to the agency’s grievance or adjudication office, and supply evidence or explanations during follow-up interviews — a pathway repeatedly described by lawyers and clearance practitioners as the routine next step after an “unsuccessful” polygraph [1] [5] [6]; forum posts from applicants and employers also emphasize retesting or additional interviews as common practical outcomes rather than immediate legal relief [7] [8].
2. Adjudicative safeguards for security clearances and corroboration rules
For clearance holders or applicants, departmental guidance can constrain reliance on raw polygraph calls: Intelligence Community and Office of the Director of National Intelligence guidance (e.g., SEAD 4 as reported) requires that polygraph technical calls not be the sole basis for adverse action without corroborating adjudicatively significant information, giving applicants a defined route to demand corroboration or challenge lone polygraph-based findings during the adjudicative process [2].
3. Merit Systems Protection Board, CSRA vs. APA — jurisdictional puzzles
Where a polygraphfinding leads to a rescinded federal appointment or adverse personnel action, plaintiffs have attempted to shoehorn those disputes into either CSRA-covered appeals before the Merit Systems Protection Board or into APA litigation in federal court; anti‑polygraph litigation shows defendants often assert CSRA preclusion while plaintiffs argue they retain APA review of the polygrapher’s conduct and procedural irregularities, creating a contested legal threshold about which forum can hear the claim [4].
4. Freedom of Information Act and record-gathering as a tactical pre‑litigation step
Applicants are counseled to use FOIA to obtain examiner records, scoring sheets, and agency correspondence — both to understand the factual basis of the “unsuccessful” determination and to assemble evidence for administrative appeals or litigation; practitioners note FOIA often becomes necessary before a lawyer can evaluate whether a procedural or negligence claim exists [3].
5. Medical, procedural, and questioning‑style challenges and retesting options
A nonlegal but legally relevant line of attack is documenting medical conditions, testing conditions, or ambiguous/invalid questions that could have skewed physiological responses and requesting retesting; legal advisers and practitioner guides emphasize these factual challenges during agency follow‑ups and appeals, and recommend medical documentation or expert review when available [6] [9] [1].
6. Civil litigation: what claims have been raised and limitations
When administrative channels fail, applicants have pursued civil litigation alleging arbitrary procedures, negligence, defamation or constitutional violations; anti‑polygraph docket entries show suits seeking review of polygrapher conduct and agency policies, but courts remain skeptical of polygraph reliability and agencies often defend on jurisdictional grounds such as CSRA preclusion, meaning litigation can be costly and uncertain [4] [10] [3].
7. Practical reality, competing narratives and hidden incentives
The record shows competing agendas: agencies rely on polygraphs as a screening tool and emphasize national‑security prudence while applicants and advocacy groups stress scientific limitations and procedural fairness, and private guides or law firms naturally highlight appeal and litigation options they can facilitate; prospective challengers should therefore combine administrative appeals, FOIA-driven fact‑gathering, medical or expert rebuttals, and counsel assessment about the feasibility of MSPB or APA litigation rather than assuming any single route is guaranteed [2] [4] [6].