Federal District Court Opinions

CRODDY v. FEDERAL BUREAU OF INVESTIGATION, (D.C. 9-29-2006) ERIC CRODDY et al., Plaintiffs, v. FEDERAL BUREAU OF INVESTIGATION et al., Defendants. Civil Action No. 00-651 (EGS). United States District Court, D. Columbia. September 29, 2006


EMMET SULLIVAN, District Judge

Plaintiffs bring this action raising numerous claims in
connection with their non-selection for employment by
Defendants, the Federal Bureau of Investigation (“FBI”) and
the United States Secret Service (“Secret Service”).
Specifically, Plaintiffs allege that they applied for
employment with Defendants, that as part of the application
process they were required to take a polygraph examination,
and that as a result of that examination they were not
offered employment. They contend that the polygraph testing
is unreliable, that their “false positives” improperly
served as the basis to deny them employment with these
agencies, and these results affect their potential
employment with other law enforcement agencies. Plaintiffs
claim that the use of polygraph examinations in the
application process violates the Administrative Procedure
Act, 5 U.S.C. § 701 et seq., the Page 2 Fifth
Amendment, and the Constitutional right to privacy.

Pending before the Court are Plaintiffs’ motion for
summary judgment, and Defendants’ motion to dismiss in part
and for summary judgment. Upon consideration of the
parties’ motions, the responses and replies thereto, and
the entire record, the Court determines that Plaintiffs’
constitutional claims fail on the merits, and that their
administrative claims are either barred for lack of
jurisdiction, or fail on the merits. Therefore, for the
reasons stated herein, Plaintiffs’ motion is DENIED, and
Defendants’ motion is GRANTED.


The FBI conducts polygraph examinations of applicants for
employment to the FBI.[fn2] DMF at 1. Plaintiff Brian
Weiler (“Weiler”) applied for the position of Special Agent
with the FBI in 1997, and underwent a polygraph examination
in December 1999. DMF at 3. Weiler did not pass the
polygraph examination and his request for a second
examination was denied. DMF at 3. Plaintiff Susan Wright
(“Wright”) applied for the position of Page 3 physical
scientist forensic examiner with the FBI, and underwent a
polygraph examination in November 1999. DMF at 3-4. Wright
did not pass the polygraph examination and her request for
a second examination was denied. DMF at 4-5. The FBI
rejected Weiler and Wright’s applications for employment
because they failed the polygraph examinations. DMF at 4;
D’s response at 4 n. 3.

The Secret Service conducts polygraph examinations of
applicants for employment for the position of Special Agent.
DMF at 5. Applicants cannot proceed in the application
process unless they pass the polygraph examination. DMF at
6. Plaintiff William Roche (“Roche”) applied for the
position of Special Agent with the Secret Service in 1999.
DMF at 7. Roche did not pass two polygraph examinations and
was not selected for employment as a Secret Agent. DMF at
7-8. Roche never applied for another law enforcement
position after failing the Secret Service polygraph
examination. DMF at 8.

Plaintiff Darryn Mitchell Moore (“Moore”) applied for the
position of Special Agent with the Secret Service in 1988.
DMF at 9. Moore did not pass two polygraph examinations and
was not selected for employment as a Special Agent. DMF at
9. Moore voluntarily left a law enforcement job with the
Atlanta Police Department to pursue journalism, his
educational major. DMF at 10. Page 4

Plaintiff Thomas Miller (“Miller”) applied for the position
of Special Agent with the Secret Service in 1994. DMF at
10. Miller did not pass two polygraph examinations and was
not selected for employment as a Special Agent. DMF at
10-11. As of December 2003, Miller was working as a Special
Agent with the Immigration and Customs Enforcement Agency,
a law enforcement position within the Department of
Homeland Security (“DHS”). DMF at 11.

Plaintiff Eileen Moynahan (“Moynahan”) applied for a
position of Special Agent with the Secret Service in 1993.
DMF at 11. Moynahan did not pass three polygraph
examinations and was not selected for employment as a
Special Agent. DMF at 11-12. As of September 2003, Moynahan
was working for the Drug Enforcement Agency (“DEA”) as an
intelligence research specialist, which is a law
enforcement position. DMF at 12. Moynahan was hired in this
position after disclosing to the DEA that she had failed
the Secret Service’s polygraph examination. DMF at 12-13.


Plaintiffs have brought three claims in this suit,
alleging that: (1) Defendants’ dissemination of the
information that Plaintiffs failed polygraph examinations
deprives them of their occupational and reputation-based
liberty interests without due Page 5 process; (2)
Defendants violated their constitutional right to privacy
because they asked questions regarding their medical,
psychological, sexual, criminal, and drug use histories
during the examinations; and (3) Defendants’ use of the
polygraph examination in the employment process violates
the APA. Both parties seek summary judgment on all the
claims. In addition, Defendants ask the Court to dismiss
the non-constitutional claims for lack of jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1).

I. Standard of Review

A motion under Rule 12(b)(1) presents a threshold challenge
to the Court’s jurisdiction. Haase v. Sessions, 835 F.2d
902, 906 (D.C. Cir. 1987). The Court may resolve a Rule
12(b)(1) motion based solely on the complaint, or if
necessary, may look beyond the allegations of the complaint
to affidavits and other extrinsic information to determine
the existence of jurisdiction. See id. at 908; Herbert v.
Nat’l Acad. of Sci., 974 F.2d 192, 197 (D.C. Cir. 1992).
The Court must accept as true all the factual allegations
contained in the complaint, but the plaintiff bears the
burden of proving jurisdiction by a preponderance of the
evidence. Bennett v. Ridge, 321 F. Supp. 2d 49, 51-52
(D.D.C. 2004).

Summary judgment should be granted only if the moving party
has shown that there are no genuine issues of material fact
and Page 6 that the moving party is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Waterhouse v. District
of Columbia, 298 F.3d 989, 991 (D.C. Cir. 2002). In
determining whether a genuine issue of material fact
exists, the Court must view all facts in the light most
favorable to the non-moving party. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The non-moving party’s opposition, however, must consist of
more than mere unsupported allegations or denials and must
be supported by affidavits or other competent evidence
setting forth specific facts showing that there is a
genuine issue for trial. Fed.R.Civ.P. 56(e); see Celotex
Corp., 477 U.S. at 324.

II. Due Process Claims

Plaintiffs claim that Defendants have damaged their
reputations and occupational prospects without due process
of law by disseminating the defamatory results of their
polygraph examinations. In particular, they claim that
Defendants have published their findings that Plaintiffs
failed polygraph examinations, and thus injured Plaintiffs’
job prospects with other federal law enforcement agencies.

In order to establish a violation of procedural due
process, Plaintiffs must show that they were deprived of a
constitutionally protected interest. See Graham v. DOJ,
2002 WL 32511002, at *4 (D.D.C. 2002). A claim for
deprivation of a Page 7 liberty interest based on the
defamatory statements of government officials in
combination with an adverse employment action may proceed
on one of two theories. See Holman v. Williams, 436 F.
Supp. 2d 68, 78 (D.D.C. 2006). The two theories are referred
to as “reputation-plus” and “stigma or disability.” See id.
at 78-79.

Under the “reputation-plus” theory, an employee’s liberty
interest is infringed when there is “official defamation”
accompanied by either a “discharge from government
employment or at least a demotion in rank or pay.”
O’Donnell v. Barry, 148 F.3d 1126, 1140 (D.C. Cir. 1998).
Plaintiffs’ claims do not satisfy either prong of the
“reputation-plus” standard. Government-disseminated
information must be false in order to be considered
defamatory. See Graham, 2002 WL 32511002, at *4 n. 2
(holding that a letter was not defamatory because its
contents were not false); see also Codd v. Velger, 429 U.S.
624, 628 (1977) (holding that no hearing was required
because plaintiff did not allege that government’s report
was false). Though reports that Plaintiffs failed polygraph
examinations may imply that they lied or had used drugs,
the reports are technically accurate — there is no
dispute that Plaintiffs did in fact fail the Defendants’
examinations. Therefore, information about Plaintiffs’
polygraph results do not constitute defamation. See Graham,
2002 WL 32511002, at *4 n. 2. Page 8

In addition, Plaintiffs fail the second prong of the
“reputation-plus” standard because they were neither
discharged nor demoted — they were merely not
offered a position. See O’Donnell, 148 F.3d at 1140.[fn3]
The D.C. Circuit has explained that a discharge or demotion
is required to ensure that the damage to the employee’s
reputation is sufficiently severe, and to limit the scope
of permissible due process claims. See id. Even accepting
Plaintiffs’ characterization of Defendants’ actions as
revoking conditional offers of employment, those actions
constitute neither a discharge nor demotion from an
employment position. Therefore, Plaintiffs have not
demonstrated the loss of a liberty interest under the
“reputation-plus” theory.

Under the second liberty interest theory, deemed “stigma
or disability,” a plaintiff’s liberty interest is infringed
when there is an “adverse employment action and a stigma or
other disability” that forecloses the plaintiff’s freedom
to take advantage of other employment opportunities. Id.;
Holman, 436 F. Page 9 Supp. 2d at 79.[fn4] The government
action and stigma must “seriously affect[], if not
destroy[]” the plaintiff’s ability to pursue her chosen
profession. O’Donnell, 148 F.3d at 1141 (quoting Kartseva
v. State Dep’t, 37 F.3d 1524, 1529 (D.C. Cir. 1995)). A
plaintiff’s job prospects are sufficiently damaged if the
official action either automatically bars the plaintiff
from a range of government positions, or generally blocks
her from pursuing employment in her chosen field of
interest. Holman, 436 F. Supp. 2d at 79.

In this case, Plaintiffs concede that they have no
evidence that Defendants disseminated their polygraph
results, or that they were denied any job, other than with
the Defendants, because of their polygraph examinations.
See Pls.’ Reply to Opp’n to Pls.’ Mot. for Summ. J. at 4-5.
In fact, Miller and Moynahan attained law enforcement
positions with the DHS and DEA respectively,
notwithstanding their failed polygraph examinations.
Plaintiffs invite the Court to speculate that publication
of their polygraph results will necessarily lead to the
elimination of otherwise available job opportunities. The
Page 10 Court, however, has no basis for doing so.[fn5]
Just as the FBI and Secret Service do not conclusively rely
on the polygraph results of other agencies,[fn6] other
agencies may not rely on Defendants’ results. Absent any
evidence that Defendants’ actions have foreclosed
Plaintiffs’ other job opportunities, Plaintiffs have not
demonstrated the loss of a liberty interest under the
“stigma or disability” theory. See Graham, 2002 WL
32511002, at *5.

Because Plaintiffs have not shown that Defendants deprived
them of a protected liberty interest, their procedural due
process claims fail as a matter of law.

III. Constitutional Right to Privacy

Plaintiffs claim that Defendants violated their
constitutional right to privacy because they asked
Plaintiffs questions regarding their medical,
psychological, sexual, criminal, and drug use histories
during their polygraph examinations. In particular,
Plaintiffs challenge the Secret Page 11 Service’s practice
of asking applicants whether they had committed adultery
and other sexual crimes.[fn7]

The D.C. Circuit has expressed grave doubts as to whether
there is a Constitutional right protecting the disclosure
of confidential information. See Am. Fed’n of Gov’t
Employees v. HUD, 118 F.3d 786, 791 (D.C. Cir. 1997). The
court, however, has not directly resolved the question. See
id. at 793. Instead, in that case, the court held that even
assuming the right exists, it was not violated by the
employee questionnaires utilized by the Department of
Housing and Development (“HUD”) and the Department of
Defense (“DOD”). See id. at 793-95. The court held that HUD
could legitimately inquire into their potential employees’
drug use and financial troubles because they would be in
positions of public trust. Id. at 794 (“When presented with
a reasonable determination we are reluctant to second-guess
the agencies’ conclusions.”). The court was even more
reluctant to reject the DOD procedures because they
concerned national defense and security, and approved
questions regarding the employees’ mental health and
expunged criminal history. See id. Page 12

In this case, Plaintiffs were applying for positions of
public trust concerning the security of the nation and of
our elected officials. Therefore, even assuming there
exists a constitutional right to non-disclosure of private
information, Defendants can legitimately inquire into the
applicants’ financial, drug use, health, and criminal
history. See id. at 793-94.[fn8] With regard to the Secret
Service’s specific questions, the agency has made a
reasonable determination that there is a danger if its
employees in sensitive positions could be blackmailed for
some reason. The Court will not second-guess that
conclusion, and therefore the agency can legitimately ask
whether applicants committed adultery or serious crimes.
See id. at 793. Accordingly, the Court rejects Plaintiffs’
constitutional privacy claims as a matter of law.

IV. APA Claims

Plaintiffs claim that Defendants’ use of polygraph
examinations violates the APA. In particular, they argue
first that Defendants violated their own regulations in
denying Page 13 employment solely on the basis of failed
polygraph examinations. Second, they argue that Defendants’
practice of denying employment solely on the basis of
failed polygraph examinations is arbitrary and capricious.

The APA provides for judicial review of a “final agency
action for which there is no other adequate remedy in a
court,” 5 U.S.C. § 704, and allows for judicial
review “except to the extent that . . . (1) statutes
preclude judicial review; or (2) agency action is committed
to agency discretion by law,” 5 U.S.C. § 701(a).
Mistick PBT v. Chao, 440 F.3d 503, 509 (D.C. Cir. 2006).
Defendants argue that relief under the APA is unavailable
for several reasons: (1) the Civil Service Reform Act of
1978 (“CSRA”) and Privacy Act preclude APA review; (2) the
actions at issue are committed to agency discretion by law;
and (3) the APA claims fail on the merits.

A. Preclusion of APA Claims by Other Statutes

The CSRA is a comprehensive statute that prescribes
protections and remedies for federal civil servants. See
Graham v. DOJ, 2002 WL 32511002, at *2 (D.D.C. 2002). It is
well-settled that the CSRA precludes all other claims
challenging federal personnel actions, included APA claims.
Id. Even if the CSRA does not provide a remedy for a
particular federal employee, the CSRA still precludes
personnel-based APA claims because that means the contested
action is committed to agency discretion by Page 14 law.
See id. at *2-3. Therefore, the fact that the FBI is
generally exempted from the CSRA’s scheme does not diminish
the scope of the CSRA’s preclusive effect. See id. at *2;
5 U.S.C. § 2302(a)(2)(C)(ii); Graham v. Ashcroft, 358
F.3d 931, 934-35 (D.C. Cir. 2004) (holding that employees’
personnel claims are still precluded even if the CSRA does
not provide a remedy for a particular type of personnel
action). This preclusion remains in effect even for claims
that an agency has violated its own regulations. See
Graham, 358 F.3d at 935.

Therefore, the determinative question is whether
Plaintiffs’ APA claims fall within the purview of the
CSRA.[fn9] Applicants for federal employment are also
covered by the CSRA. See Spagnola v. Mathis, 859 F.2d. 223,
225 n. 3 (D.C. Cir. 1988) (per curiam). The “prohibited
personnel practices” Congress included in the CSRA remedial
scheme are set forth at 5 U.S.C. § 2302. Id. at 225.
The definition sweeps broadly to address the “tak[ing] or
Page 15 fail[ure] to take any . . . personnel action if the
taking or failure to take such action violates any law,
rule, or regulation implementing, or directly concerning,
the merit system principles contained in section 2301 of
this title.” Id.; 5 U.S.C. § 2302(b)(11). One such
merit principle provides: “All employees and applicants for
employment should receive fair and equitable treatment in
all aspects of personnel management.” § 2301(b)(2).
Plaintiffs’ claim that Defendants’ reliance on polygraph
results is arbitrary, or that the polygraph process is
somehow unfair, directly implicates this principle, and
therefore would be considered a prohibited personnel
practice. See Spagnola, 859 F.2d. at 225 n. 3. Plaintiffs’
APA claims thus fall within the ambit of the CSRA, and are
therefore precluded.[fn10]

B. Whether Actions are Committed to Agency Discretion

Were Plaintiffs’ APA claims not precluded by the CSRA, they
are still barred in part because they challenge actions
committed to agency discretion. See 5 U.S.C. §
701(a)(2). FBI hiring Page 16 decisions, in particular,
have been held unreviewable under the APA because they are
an exercise of agency discretion, and there is no
meaningful statutory standard against which to judge the
FBI’s exercise of discretion. See Padula v. Webster, 822
F.2d 97, 100 (D.C. Cir. 1987); 5 U.S.C. §
2302(a)(2)(C)(ii) (exempting FBI from CSRA). Secret Service
hiring decisions are similarly an exercise of agency
discretion, and Plaintiffs have provided no statutory
standard by which this Court can evaluate those decisions.
Therefore, Plaintiffs’ claims that Defendants’ use of
polygraph examinations is arbitrary and capricious cannot
be brought under the APA. See Heckler v. Chaney, 470 U.S.
821, 830 (1985) (holding that if Congress has not provided
standards to judge an agency’s discretion, it is
unreviewable under 5 U.S.C. § 701(a)(2)).

Plaintiffs’ APA claims that Defendants violated their own
regulations, however, may still be considered. “It is well
settled that an agency, even one that enjoys broad
discretion, must adhere to voluntarily adopted, binding
policies that limit its discretion.” Padula, 822 F.2d at
100. Therefore, Plaintiffs’ APA claims based on regulations
are not barred by 5 U.S.C. § 701(a)(2). See id. at

C. Whether Defendants Violated Regulations

Plaintiffs challenge Defendants’ policies of denying
employment solely on the basis of failed polygraph exams.
Page 17 Plaintiffs argue that Defendants’ policies violate
the instructions of DOD’s Polygraph Institute (“DODPI”),
and the FBI’s Manual of Investigative Operations and
Guidelines (“MIOG”). The DODPI instructions do not bar
Defendants’ policies, however, because they apply only to
DOD, and are not binding on any other agencies. See Defs.’
Ex. 23 at 55, 69-71 (deposition of William Norris).
Plaintiffs cite no authority to show that the DODPI
instructions are binding on Defendants. Therefore,
Plaintiffs’ claims based on the DODPI instructions fail as
a matter of law.

Plaintiffs argue that the FBI’s hiring policy contravenes
several provisions of the MIOG.[fn11] The first, §
13-22.2(2) states that “[p]olygraph results are not to be
relied upon to the exclusion of other evidence or knowledge
obtained during the course of a complete investigation.”
The second, § 13-22.5, states that “[u]se of
polygraph will in no way absolve Agents of their
responsibility to conduct all logical investigation
possible by conventional means in order to verify the
truthfulness and accuracy of information furnished.” The
third, § 13-22.12(5) states that a “preemployment
polygraph examination is one element of the overall
applicant screening process [and] is not to be considered
as a substitute for a thorough and complete background
investigation.” Page 18

The first and second provisions cited by Plaintiffs refer
to the use of polygraphs in general criminal
investigations, and not specifically to the hiring process.
See § 13-22.2(2) (“The following general policies
apply to the use of the polygraph by the FBI.”). In
contrast, § 13-22.12 specifically covers polygraph
examinations of FBI applicants. While § 13-22.12(5)
does state that the polygraph examination is only part of
the screening process, the FBI’s policy does not violate
that provision. Had Plaintiffs passed the polygraph
examination, they still would have been subject to a
complete background examination.

In fact, the FBI’s decision to deny employment to Weiler
and Wright on the basis of their polygraph results is
fully consistent with a more specific, relevant MIOG
provision. Section 67-8.2.1(6)(b) states that for non-FBI
personnel seeking FBI employment, applicants who “fail the
initial polygraph examination yet deny practicing deception
or withholding information will be disqualified from
further processing except in those circumstances where an
appeal has been granted.” As Weiler and Wright’s appeals
were denied, they were accordingly disqualified from
further consideration. Therefore, Plaintiffs’ claims based
on the FBI MIOG fail as a matter of law. Page 19


The Court finds that Plaintiffs’ constitutional claims fail
as a matter of law. Plaintiffs’ APA claims are dismissed
for lack of jurisdiction because they are precluded by the
CSRA. In the alternative, Plaintiffs’ APA claims based on
Defendants’ regulations are rejected as a matter of law,
and any other APA claims are barred because they challenge
actions committed to the agencies’ discretion.

Accordingly, Plaintiffs’ motion for summary judgment is
DENIED and Defendants’ motion to dismiss in part and for
summary judgment is GRANTED. An appropriate Order
accompanies this Memorandum Opinion.

[fn1] The parties have admitted that all of the following
facts are not in dispute.

[fn2] Though Plaintiffs have introduced significant evidence
on the question of whether polygraph examinations are
reliable, the Court need not answer that question to
resolve Plaintiffs’ claims. Therefore, the Court will not
delve into the details of the polygraph examination

[fn3] Plaintiffs cite to several cases, White v. OPM, 787
F.2d 660 (D.C. Cir. 1986), Waltentas v. Lipper, 636 F. Supp.
331 (S.D.N.Y. 1986), and Doe v. United States Civil
Service Commission, 483 F. Supp. 539 (S.D.N.Y. 1980), to
argue that job applicants have the same due process rights
as employees. These cases are inapposite, however, because
they discuss “stigma or disability”-type due process
claims. See White, 787 F.2d at 665; Waltentas, 636 F. Supp.
at 337; Doe, 483 F. Supp. at 569-70.

[fn4] It is unclear whether a published statement must be
false in order to constitute a “stigma or disability.” The
Court, however, will assume that dissemination of
Plaintiffs’ polygraph results does constitute a “stigma or
disability” because the results call into question
Plaintiffs’ fitness for law enforcement positions.

[fn5] Plaintiffs attempt to establish that merely having
damaging information in personnel files is sufficient to
show that access to a profession has been foreclosed.
Precedent from this Circuit, however, demonstrates what is
lacking in this case. In Old Dominion Dairy v. Secretary of
Defense, 631 F.2d 953 (D.C. Cir. 1980), the court
recognized a valid due process claim because there was
direct evidence that damaging information led to specific
denials of government contracts for a private contractor.
Id. at 955-59. Plaintiffs have presented no such evidence
in this case.

[fn6] See Defs.’ Ex. 1 at 49-50 (deposition of Gregory
Gilmartin); Defs.’ Ex. 13 at 152-53 (deposition of Scott

[fn7] Plaintiffs make much of the fact that the Secret
Service asks applicants whether they have had sex with
animals. The record shows, however, that the agency’s
question to applicants is whether they have ever committed
a “serious crime,” and the polygraph examiner explains what
is meant by a “serious crime” by showing the applicant a
list of crimes the agency considers to be serious. Sex with
animals happens to be on that list, along with 28 other
crimes. Defs.’ Ex. 26 at 73-75 (deposition of Scott Myers);
Defs.’Ex. 27 (list of crimes).

[fn8] For support, Plaintiffs rely on one case from the
Ninth Circuit, Thorne v. El Segundo, 726 F.2d 459 (9th Cir.
1983) (holding that inquiry into sexual history of a police
officer applicant violated her constitutional right to
privacy because the questioning was not narrowly tailored).
Thorne, however, rested principally on the facts that there
were absolutely no standards or guidelines for the detailed
questioning of the applicant’s sexual history, and that her
admission of an affair with a police officer was one of the
reasons she was denied employment. See id. at 469-71.
Plaintiffs have made no such allegations in this case.

[fn9] Plaintiffs contend that Defendants are estopped from
arguing that the CSRA precludes their APA claims. They state
that Defendants’ rejection letters to the Plaintiffs did
not discuss remedies available under the CSRA, and
Plaintiffs were unaware of such remedies. Estoppel against
the government, even if such claims are allowed, requires a
showing of affirmative government misconduct. See Int’l
Union v. Clark, 2006 WL 2598046, at *12 (D.D.C. 2006). In
addition, the Supreme Court has found that the provision of
erroneous information, without more, cannot give rise to an
equitable estoppel claim against the Government. See Office
of Personnel Management v. Richmond, 496 U.S. 414, 428-29
(1990). As Plaintiffs have made no showing of misconduct,
and their argument concerns only the provision of
information, Plaintiffs’ estoppel argument is rejected.

[fn10] The Defendants’ argument that the APA claims are
also precluded by the Privacy Act, however, is unavailing.
The Privacy Act, 5 U.S.C. § 552a, gives federal
agencies detailed instructions for managing their records
and provides for various sorts of civil relief to
individuals aggrieved by failures on the government’s part
to comply with the requirements. Maydak v. United States,
363 F.3d 512, 515 (D.C. Cir. 2004). While the Privacy Act
may address Plaintiffs’ due process claims concerning the
dissemination of their polygraph results, the Act does not
address their APA claims, which attack Defendants’ hiring
decisions and processes. Therefore, the Privacy Act does
not preclude APA review in this case. See 5 U.S.C. §

[fn11] Excerpts of the MIOG were submitted as “Exhibit 32”
to Plaintiffs’ Motion for Summary Judgment. Page 1