If you’re searching for a CBP polygraph lawsuit, the short answer is that federal courts have given failed applicants very little room to sue. The leading case, Solis v. Department of Homeland Security, held that when U.S. Customs and Border Protection pulls a tentative job offer after a failed polygraph, it can classify the decision as an “objection to an eligible” candidate rather than a suitability action, which keeps the Merit Systems Protection Board from reviewing it. There is no standalone polygraph appeal. In most cases the practical remedies are a one-year wait to retake the exam, a statutory waiver if you qualify, or a legislative fix that Congress has repeatedly discussed but not passed.
Why the Polygraph Is Hard To Challenge
The exam is not a policy choice CBP can drop on its own. The Anti-Border Corruption Act of 2010 (Pub. L. 111-376) requires the Secretary of Homeland Security to ensure every CBP law enforcement applicant takes a polygraph before hiring, a requirement codified at 6 U.S.C. § 221.1Office of the Law Revision Counsel. 6 U.S.C. § 221 – Requirements With Respect to Administering Polygraph Examinations
The Employee Polygraph Protection Act, which sharply limits polygraph use by private employers, does not help. Under 29 C.F.R. § 801.10(a), the federal government and its agencies are explicitly excluded from EPPA coverage, so the protections a private-sector applicant would have simply do not apply when you’re applying to CBP.2eCFR. 29 CFR Part 801 – Employee Polygraph Protection Act
That combination — a congressional mandate to test, and no EPPA cause of action against the tester — is the reason lawsuits over a failed CBP polygraph are rare and usually unsuccessful.
Solis v. Department of Homeland Security
The most instructive federal case is Solis v. Department of Homeland Security, decided by the U.S. Court of Appeals for the Federal Circuit on July 12, 2017. Fernando Solis, a former Border Patrol agent who had been terminated in 2010 after a DWI arrest, received tentative offers for a CBP officer position and a Border Patrol agent position in 2011 and 2012. CBP rescinded both offers after he failed a mandatory polygraph in August 2012 over answers regarding past drug use.3Findlaw. Solis v. Department of Homeland Security
Solis argued that CBP’s action was a “suitability action” under federal regulations, which would have given the Merit Systems Protection Board jurisdiction to review it. CBP argued it had processed an “objection to an eligible” candidate instead — a procedural classification that is not appealable to the Board.4MSPB. Solis v. DHS Final Order
The MSPB conceded that CBP’s paperwork was “internally inconsistent” and used “inartful references to suitability,” but it dismissed the case for lack of jurisdiction in January 2016. The Federal Circuit affirmed, finding substantial evidence that CBP had processed the non-selections as objections rather than suitability actions, and holding that agencies may rely on suitability criteria in making such an objection without triggering MSPB review. The court also found Solis had waived any argument about a “constructive” suitability action by failing to raise it properly.3Findlaw. Solis v. Department of Homeland Security
The practical takeaway for any applicant considering a lawsuit: by classifying a rescinded offer as an objection to an eligible candidate, CBP largely insulates the decision from independent review.
What Review Is Available After a Failed Polygraph
There is no dedicated polygraph appeal. The exam functions as one investigative input feeding CBP’s broader adjudication process. According to CBP’s applicant resources, failed polygraph results remain valid for one year, after which you may retake the examination.5CBP Careers. Polygraph Examination
If your polygraph results contribute to a security clearance denial rather than a simple non-selection, a separate administrative track applies. It runs through a post-test interview, an examiner report, possible expanded investigation, and adjudicative review against federal guidelines. If concerns remain, you receive a Statement of Reasons that opens a formal response process. These matters are resolved administratively, and the focus is on your long-term reliability and credibility, not on attacking the polygraph instrument itself.5CBP Careers. Polygraph Examination
You can file a complaint about how your exam was conducted, but the record on that route is discouraging. A July 2018 DHS Office of Inspector General audit reviewed 157 applicant complaints from fiscal years 2013 through 2017 and found that 96 percent were “unfounded or ambiguous.” Only six were substantiated through audio evidence, and the OIG found that CBP failed to adequately address five of those six because it lacked a formal complaint review process.6DHS OIG. Most Complaints About CBP’s Polygraph Program Are Ambiguous or Unfounded
The Statutory Waiver: When You Can Skip the Polygraph
The one clear path around the exam comes from Congress, not the courts. The Anti-Border Corruption Reauthorization Act of 2016 (Pub. L. 114-279) gives the CBP Commissioner discretionary authority to waive the polygraph for an applicant who meets all of the following:
- is deemed suitable for employment;
- holds a current Top Secret/Sensitive Compartmented Information clearance with a current Single Scope Background Investigation;
- was not granted any waivers to obtain that clearance; and
- is a veteran as defined by federal law.7Office of the Law Revision Counsel. 6 U.S.C. § 221(b) – Waiver Authority
CBP has also reported additional waiver practices for applicants who already hold a top-secret clearance or have previously passed a separate polygraph.8Federal News Network. $6.2B CBP Hiring Plan Features Considerable Uncertainty If you qualify for a waiver, that is a far more productive route than litigation.
Trying To Attack Polygraph Reliability in Court
Applicants sometimes hope to sue on the theory that the polygraph itself is junk science. The Supreme Court’s decision in United States v. Scheffer (1998) is the wall you run into. The Court upheld a military rule categorically excluding polygraph evidence from court-martial proceedings, with Justice Thomas writing that “there is simply no consensus that polygraph evidence is reliable,” citing accuracy estimates ranging from near-chance to 87 percent. The Court identified three legitimate government interests: ensuring the reliability of trial evidence, preserving the fact-finder’s role in assessing credibility, and avoiding “collateral litigation” over examiner qualifications and testing methodology.9Justia. United States v. Scheffer, 523 U.S. 303
Scheffer is about whether polygraph results can come into a criminal trial, not about their use as a hiring screen. But its treatment of the science as contested has helped shape a legal environment in which no court has recognized a right to challenge a federal agency’s use of the polygraph in hiring.
Complaints About How Exams Are Administered
The National Border Patrol Council, the agency’s union, has publicly criticized how exams are administered, particularly in the Tucson sector. Art Del Cueto, then president of the Tucson local, said the same person administers the test and decides the outcome, calling the examiner “the judge, the jury and the executioner.”10KJZZ. Border Patrol Lie Detectors Accused of Bizarre-Sounding Behavior
Union officials and then-Rep. Martha McSally reported applicant accounts they called “horror stories.” One complainant said an examiner told her that her readings resembled those of a “Russian spy,” accused her of drug use and falsifying her application, and claimed to have “criminal database” information about her before she could explain herself. The union also claimed that 80 percent of applicants who failed the Tucson polygraph subsequently found employment with other law enforcement agencies.11Arizona Public Media. Tucson Border Patrol Polygraph Use Challenged CBP declined to be interviewed about the specific allegations and provided a written statement noting that examiners are monitored daily and audio recordings are reviewed.10KJZZ. Border Patrol Lie Detectors Accused of Bizarre-Sounding Behavior
These accounts help explain why applicants keep trying to bring claims. They also help explain why so few of those claims go anywhere. Documented misconduct in a specific exam is one thing; the OIG numbers suggest that most complaints do not reach that bar.
Legislation That Could Change the Rule
If the courts won’t grant a remedy, Congress might. Bills have been introduced repeatedly to narrow or lift the requirement.
In February 2023, Rep. Dan Crenshaw reintroduced the Anti-Border Corruption Improvement Act (H.R. 596), co-sponsored by Reps. Jake Ellzey and Juan Ciscomani, which would remove the polygraph requirement for applicants with prior military security clearances or law enforcement experience.12Rep. Dan Crenshaw. Rep. Dan Crenshaw Introduces Anti-Border Corruption Improvement Act The bill did not advance beyond introduction in the 118th Congress.13Congress.gov. H.R. 596 – Anti-Border Corruption Improvement Act
In June 2025, Sen. Ruben Gallego introduced the Border Patrol Recruitment Enhancement Act (S.2163), which would authorize CBP to waive the polygraph for pre-vetted applicants who currently serve or have previously served in law enforcement or the military. Gallego called the polygraph a “costly and unreliable filter” with “high rates of false positives,” and the bill drew endorsements from the National Treasury Employees Union and AFGE District 12.14Sen. Ruben Gallego. Gallego Introduces Legislation to Cut Red Tape in Border Agent Hiring Process It was referred to the Senate Committee on Homeland Security and Governmental Affairs with no co-sponsors.15Congress.gov. S.2163 – Border Patrol Recruitment Enhancement Act
CBP has also made administrative changes without waiting for Congress. It separated questions about illegal drug use from questions about serious criminal activity, and it reduced the “lookback” period for prior marijuana use from two years to 90 days, a change the agency reported to congressional staff in March 2024. Sen. James Lankford objected to the marijuana change in an April 2024 letter to Acting Commissioner Troy Miller demanding data on how it affected pass rates.16Senator James Lankford. Lankford Calls on CBP to Reverse Policy on Marijuana Use for Recruits The GAO reported in September 2024 that pass rates “generally improved” after these changes, without publishing specific figures.17GAO. GAO-24-107029
For an applicant weighing options after a failed exam, the honest picture looks like this. A lawsuit modeled on Solis is unlikely to reach a merits ruling. A complaint about how the exam was conducted may be documented but rarely produces a remedy. The one-year retake window and the statutory waiver are the two levers that reliably exist, and any broader change will come from Congress rather than a courtroom.