please the court my name is jean i are dealing with grace john and julian you i represent the plaintiffs in this case i would like to discuss with the court the statute which i think controls the outcome in this case as well as for separate reasons why egan does not avail the defendant metropolitan target or in  position may i just inquire one thing with the court's permission we did submit a rule twenty eight jade letter earlier this week we submitted it on monday in response to the let me if i could start with the statute the employee polygraphed protection act is found at twenty nine u s c two thousand and one through two thousand and nine it was passed in one nine hundred eighty eight it was a comprehensive congressional enactment that was designed to regulate the use of polygraphs in the context of employment including employment involving the private persons who work for government contractors section two thousand and two sets out three of the sections that metropolitan violated in this case two thousand and two subsection one prohibits any employer from requesting suggesting requiring or causing directly or indirectly any employee to take a polygraph the second section prohibits accepting using referring to any information gained through a polygraph and section two thousand and two sub three for bids discriminating against disciplining discharging or denying employment to anyone on the basis of a polygraph or the refusal to take polygraph section two thousand and three requires that the rights conferred by the e p a be posted in the place of employment section two thousand and four confers powers on the secretary of labor to investigate and give him subpoena authority section two thousand and five sets out the enforcement scheme of the statute it provides for an administrative proceeding before the secretary it gives the secretary of labor or authority to go into federal court to seek an injunction and most importantly in two thousand and five subsection  provides a private right of action and confers on the district court the authority to grant the relief for the violation of the statute section two thousand and six is especially important here section two thousand and six together with the related c f farce and i should've i hope you will forgive me i should have referred to court we attached the statute in appendix to the brief to our brief the text is there section two thousand and six provides that with respect to government employees both state and federal the government may polygraph its own employees federal employees there's no prescription on that and it does however especially when you read it in connection with the two regulations which are eight a one point ten subsection d and eight all one point eleven of twenty nine c f r centrally says this and this is what the administrative findings are in this is what the courts have held although the government is allowed to polygraph its own employees unless it falls within an exemption as set forth in two thousand and six b and c it may not polygraph the employees of a private contractor they're interesting since the other side raises  statute by setting out specific exemptions that the congress and decided should apply so for instance under section b any private contractor who works for any private individual who works for a contractor who has a contract with the department of defense may be polygraphed any private person who works for a contractor who has a contract with the department of energy regarding atomic nuclear defense may be polygraphed there's an exception for polygraphing consultants or contractor employees who work for the f b i in a counter intelligence or intelligence capacity in addition the employees of private contractors who work for the cia the d i m a the defense intelligence agency and the n s a may be polygraphed finally the statute says if any employee of a contractor is going to have access to classified information at the level of top secret or to what is called a special access program which refers to classified information within the executive branch that employee may be polygraphed judge miller in the court below found that the statutory scheme here precluded the da from administering polygraphs to the private persons who are employees of metropolitan now if i could since metropolitan raises the issue under eagan i need to address why egan does not prohibit us from going forward and does not deprive this court nor the district court of jurisdiction in that regard we cited in the twenty eight j letter a case called hale versus johnson that is a case from the sixth circuit and what it says is in determining the scope of eagan you look to the statute and the hail vs johnson case the sixth circuit said the rehabilitation act does not incorporate a provision from title seven which allows the government to exclude people from security access without worrying about being of the subject of a title seven action since the rehabilitation act on its face says the court has jurisdiction and did not include that exclusion similar to the exemptions under two thousand and six of twenty nine u s c i just discussed the court said there is complete jurisdiction you can does not apply what even said is in the absence of a statute in the absence of a statute considerations of national security should preclude a court from actually it was the merit system protection board but this court in a later decision held it to be the same rule with respect to article three judges should not second guess a security determination and if there is a statute however if the congress has acted as if acted a and as it acted through the an accident of that statute and the specification of exemptions none of which apply here that is to say the d e a is not given an exemption in addition there's a second reason why you can does not apply even does not apply here because well with regard to whether he can apply stu we need to go outside of our circuit because we've we've got a case  i in the ninth circuit how do you think that applies to this case in two ways judge when in the first way the language in xin alley says it will be the rare case in which a private contractor can successfully raise an egon defense and secondly because in zen alley the court made very clear that if the contractor is raising the government's argument but the government's position doesn't support the contractors position even is not applicable in this case i need to point something out and that is that metropolitan is in effect tried to be more catholic than the pope that is to say metropolitan is raising the government's argument and the government in this case never raised that issue in other words the eagan issue is really the government issue the government having examined the statute having looked at the facts resolve this case with us now i am appreciative that a settlement without the admission of any fault does not necessarily amount to a reasoned decision of a court but the government after having looked at this said we agree we will real value weight the access status of the plaintiffs without regard to the polygraph now in that regard i need to say this even though what is involved in this case is not classified information is not secret confidential or top secret information and therefore does not fall under any of the ambit of the cases about which the defendant speaks nonetheless we say that it is important that sensitive information law important sensitive information be preserved and we have no quarrel with the position that under the contract in this case and under the law the government has the right to exclude from access any employee for any reason or for no reason at all and there is no review process except the government may not violate the e p a now in terms of the release your clients are seeking i was looking through the complaint i did not see them requesting reinstatement of their access to the wire room or security clearance is that right your honor here's what we did with the government we made a settlement in the case i believe it's found at page fifty five of our excerpt of record and what we said is in the agreement the government agrees to re evaluate each person's status without regard to the polygraph result and whatever they decide so long as they act in good faith and there's no in other words we're assuming good faith if they say yes it's yes if they say no it's well that was part of the settlement that was part of the center of the actual complaint we're trying to force some result upon them that was not sought in no way no in other words when the government was settled out we did not seek anything from metropolitan other than money damages and metropolitan by the way the evidence against them was just overwhelming the district court judge used that phrase when he said there is overwhelming evidence that metropolitan violated the statute without metropolitans conduct the damages in this case would not have occurred which you just guess you're a person meant argument yes i will leave you set up for the united states for five hundred thousand yes yes judge wardlaw and what we what we say in this regard is the following as to the appropriate remedy under the northwest airlines case and under another supreme court case we got in the f e l and i hope you'll forgive me i can't remember the name by but they say that in federal labor law cases the rule is joint and several liability and there's no provision for contribution now in this case the district court judge looked to a decision of this court called ameriprise that had to do with damages in a circle a case where there is an environmental statute and this circus statute specifically permits and deed requires both apportionment and contribution the statute in this case has the language its remedies section that is nearly identical to that in northwest airlines and which is the equal pay act case and in the supreme court decision on the f b i away and so we say that under the that precedent because neither of those statutes permit an apportionment that there must be joint in several liability now the actual calculation judge wardlaw is as follows they get a credit in other words metropolitan legitimately has a credit for the payment by d e a that's deducted from the amount they owe but what happened is that the district court submitted the case to the jury on the issue of who bore more of the sponsibility metropolitan or da and even though da was not defended by a lawyer even though there was the proverbial i'm over i'm  even though there was the proverbial empty chair the jury assessed that metropolitan this case had sixty percent of the liability for the non economic damage and the government only forty percent and there was substantial testimony from government witnesses that the government was looking to metropolit to tell them what the labor law required and whether this program was in fact legal and metropolitan despite many letters and complaints and specific citation to the statute metropolitan never told the government there is a legal issue there is a problem this should be done another way the government has the right to protect the sensitivity of law enforcement information and it has the right as i say to deny access to anybody for not help me with figuring out the support so it was a total amount that the jury awarded the jury awa approximately four million dollars in both economic and non economic damages and the i'm sorry and you think and you think that what the court this is deduct five hundred thousand and required metropolitans pay the manger yes deduct that portion of the five hundred thousand that went to the plaintiffs which was about twenty five thousand each for the nine plaintiffs and  they did a credit for that on the on the judgment of the jury as to the total damages notwithstanding the jury's portion of responsibility that that is correct judge wardlaw that was the position that we took finally may i just say one thing this case really has to do with access to the da wire room and in a case that we also cite before the court which is called a toy versus holder a fifth circuit case the that court specifically held that on issues of access eagan does not apply all right  legal and equitable powers to decide how to award damages in its section two thousand five c one and it says the court may awarded prevailing players such legal or equitable relief as may be appropriate i think the gist of that cited in our principal briefs yeah yeah i happen if i can if i can turn to the egan issue and saying ali which appears to be concerning the court in view of the court's letter last week i don't think saying ali applies but to understand that let me first talk about what he stands for that the basic principles behind eagan even holes that are granted a security clearance to a particular employee is a sensitive and inherently discretionary judgement call as a result of that this isn't as committed by law to the appropriate agency of the of the executive branch as the first principle which is the idea of providing great deference to what the executive branch the da in this case does with respect to security clearances you can also hold that the executive branch has broad discretion in making c clip security clearance decisions and the reason for this is in making a security clearance decision the agency has to make a predictive judgment about the future behavior of the applicant is the applicant somebody who is trustworthy who's honest and cetera so that's  only address a very unique search situation a narrow situation in an employment discrimination case and what it held was that if if if there's a challenge to the security clearance being  bonafide employment qualification requirement that's the focus in other words if it is that a bonafide requirement to have somebody go through security clearance now that's a rather narrow holding nobody in this case disputes that the requirement of a security clearance for the monitors for the linguists in this case did not require legitimately require a security clearance because these people were working in w rooms or translating communications from drug cartels in along the border so that is the issue is this a genuine bonafide requirement for the employment it is now the second aspect  improperly denied his application for a security clearance rather zenawi contends that raytheon security clearance requirement was not a bonafide job requirement and that raytheon used the government security clearance decision as a zenawi we don't have a potential issue because the end one hundred employees will were required to go through polygraph examinations seventy of them kept their jobs so it was in use of the pretext so zenawi really doesn't apply in this context because you're not challenge no one even really talks about precluding review the substance of the decision to deny security clearance and analysis is that particular employer wasn't really involved in the denial of security clearances so the substance of those decisions really never come into play given the allegations of why isn't that true here because as i understand it from the record metropolitan really didn't play any role in b denial that this security clearance either that was taken care of solely by at the  of the merits of a security clearance decision as long as they remain vigilant not to question the motivation behind the decision to deny security clearance in this case there is a question of the merits and there is a question of the  motivation the challenge to the merits is the whole concept here the planes are saying that the polygraphs are not reliable you can trust them and they also argue that that notwithstanding the polygraph that many of the employees were falsely accused of being says metropolitan just charge disciplined and discriminated against a plane is based on the results of the lie detector test or their refusal to submit to a test so the fact that they allege that the results of the tests are an issue that goes to the merits of the security clearance determination i'm i ask you a hypothetical let's assume that metro was going to apply for a new contract with an agency that's not covered under one of the exceptions let's say da put out a post to hey look we have a new task force we're taking bids from companies to provide interpreters and metro told employees look we really want this contract and we're going to be in a much better place to get it if all of our interpreters have taken polygraphs and passed them so i think we're going to be in a much better shape to get the contract so metro then instruct its employees look take these policies we'll get it done will submit it to the a we're going to the number one bid and we're going to get it if those are the facts of this case where they have a claim against natural i think that's totally different the reason is the newest bomb that's the national national industrial security program operating manual which specifically authorizes government agencies in security clearance situations to polygraph the employees as needed as necessary what it says how about this hypothetical i gave you and your hypothetical in advance i don't think that the employer could require that there's no contract rather than what they tell him we're hoping to get to so i guess i'm trying to how is that ultimately different from this case where metro's tell his employees look we want to keep this contract so we better do what the government tell most to do and that situation you don't have a city some polygraph is failing and others not whether in deciding whether epa applies you're stepping on the toes of the executive branch to make decisions on security clearances but if they never raise that in this case i guess i'm just trying to see how are their toes being stepped on here because i as i understand the relief they're seeking is not to have the security clearance reinstated is that you may go through a poly graph in the e p a says you can't the government settled we don't know why they thought more of the object it would just take the complaint as it as it's alleged  don't think they're seeking to have their security clearance reinstated are they know they want to damage right now they have an opportunity to do that and seek what i guess but because because they're not seeking reinstatement of the security clearance they're basically saying we're not arguing to get it back they're saying do you put us through a process that you want to loud to put us through why is that not a correct reading of the complaint i think it's a correct reading of the complaint but but then if it's a correction to the point then how do we even get to the even concerns that you've laid out the question of security clearances  and subject matter jurisdiction to the core of you that i guess i'm i'm i'm i'm not trying to argue they're just trying to understand how does this case if they're if they're not asking for their security clearance to be reinstated or reevaluated they're just saying you put us through a test that congress says you can't put us through we don't care what the result was you just cruise through this really really awful test if you care what the result was because the government's defense had been forced to do it had there been subject matter jurisdiction there hasn't been tight would have argued that the results of the polygraph were reliable right that's the whole point but that might go to how much the damages are again i guess i want i'm trying to understand here is that how is their case as they've alleged it how does it call into question the government's security clearance again it's paragraph one hundred seven where they say that that their security clearance was improperly economic but are they asking for to be reinstated no they're not asking it to be reinstated but it's the basis for their claim of damages so you really have to go to the core of subject matter jurisdiction which this court would have to look at to decide the case and you have to look at whether polygraphs are reliable or not epis as no they're not reliable and that's congress's determination the federal government and the agencies in the news problem say no they are reliable for national security purposes so when congress enacted this law they enact it in about a year after a game was decided and there's clearly going to be overlap between polygraphs and security clearances so how do you explain the new spawn was decided long before either of those or the new spawn has been in effect for years national security industrial protection program in this is designed to address a situation where contractors like metropolitan are exposed to sensitive information so it's really a clash between epa and the federal government's regulations under executive order which is where the new spawn comes through that's the core issue in this case what prevails and i suggest that in a case that involves national security issues the epistatic has to give way to to the governor's prerogative to conduct these examination do you have any cases where a private employer has been able to assert the government's privilege is a clash between the executive branch and congress as to who controls the right to conduct examinations that require polygraphs who who will not all of these people had security clearances to access  allows this kind of reexamination of a security clearance so once you grant a security security clearance you're subject to being revaluated almost on an as needed basis so they haven't they have the right to do that or the da chose to do it through polygraphs now the question in this case is can they do that legally or are they overstepping their bounds because of that but and our point is that because a separation of powers that the discretion under eagan of the executive violating epa because they believed that there was the four right in authority under the law of the federal government to conduct polygraphs of their employees that's how they saw legally there was a big question about that but what it comes down to in our view is egan whether even applies to this case you have to keep in mind the two aspects here one you have to prepare for the applicant has to file submit a security clearance application s f eighty six that in and of itself tells you that that judges should not intrude in those kinds of determinations by the government as to who who is viewed as a threat to threat to national security who is not viewed as a threat to national security even says courts can't get into that examination now the extension here is that now the government decided to to use polygraphs we contend that that also is encompassed by the ferocity of the federal government to decide how they're going to conduct national security examinations without having the courts intrude on that prerogative which we really believe is a violation of even the focuses on egan not so much as a knowledge and baby versus boy well you know i think there are two extremes right the one extreme is the the eagan situation where you do have to music late at the review by the courts coast squarely to the decision to grant or deny security clearances the other end of the extreme is judge owens example which i didn't really hear a definitive answer to but i suspect the employer could be sued for that even he can wouldn't apply because the employer the executive branch made no decisions and played no role in requesting the polygraph so now he's the in between security clearance reevaluation examination so it's not a situation where the employer jones is acting on his own or it's to polygraph employees this is in the facts of this case all internally driven by the  remains that it was a security clearance determination by the d a by fellow you're not your facts are tougher because metropolitan played no role as far as i can tell in granting or denying the security nightmare is this not according to plan  if they're taking the pill your role is to facilitate scheduling telling employees that they needed to do it saying that they're going to be laid off if they don't and there's lots of combat that's alleged by metropolitan that where the evidence there is and that at trial but but it doesn't go as far as the facts of the other case because ultimately metropolitan played no role in my decision i suggest that's a distinction without a difference that the fact that there is an examination for security clearance by the da and not by the contractor is even stronger facts for our position because you have a direct involvement of a government agency and one step removed is where you have a contractor making a couple of things let me if i could read what metropolitan said this is on page one of the excerpt of record the conduct of da and metropolitan can be separated as evidence by the jury's apportionment of plaintiff's injuries based on the damage each party cost that's the position they took in the court below and that can be found it yar one seventy nine one eighty with respect to the other things i just need to say that's what metropolitan has done in its brief they never raised this issue in the court below so it could have been addressed they have conflated the specialized security clearance language that egan uses with general palming parlance of what a security clearance is when even spoke of security clearance and talk about access to classified information specifically top secret secret a confidential the information here is another kind of law enforcement sensitive and what they're trying to do is to take egan from the national defense con text and put it into law enforcement there's