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JOHN E. REID & ASSOCS. v. ILLINOIS HUMAN RIGHTS CO

May 18, 1990

JOHN E. REID AND ASSOCIATES, INC., an Illinois corporation, Plaintiff,
v.
THE ILLINOIS HUMAN RIGHTS COMMISSION, MANUEL BARBOSA, MERVIN N. BACHMAN, WALLACE L. HEIL, MATHILDA JAKUBOWSKI, GRACE KAMINKOWITZ, SAUL J. MORSE, JANE HAYES RADER, RANDALL RAYNOLDS AND ALFRED C. WHITLEY, AS COMMISSIONERS OF SAID HUMAN RIGHTS COMMISSION, AND REBECCA R. PALLMEYER, AS AN ADMINISTRATIVE LAW JUDGE OF SAID HUMAN RIGHTS COMMISSION, Defendants, and BETTYE MOORE, Intervenor


George M. Marovich, United States District Judge.


The opinion of the court was delivered by: MAROVICH

GEORGE M. MAROVICH, UNITED STATES DISTRICT JUDGE

 Plaintiff John E. Reid and Associates, Inc. ("Reid") brought this declaratory judgment action against the Illinois Human Rights Commission ("Commission"), its individual commissioners, and one of the Commission's Administrative Law Judges ("ALJ"). Reid is a polygraph examiner and is currently a defendant in a race discrimination proceeding before the Commission based on a complaint brought by Bettye Moore, and has been ordered to turn over certain polygraph records beyond those relating to his examinations of Moore. Reid seeks declaratory relief and an injunction preventing the Commission from enforcing its order. Moore has been granted leave to intervene in this suit. Before the court are Reid's and Moore's cross-motions for summary judgment. For the following reasons, Reid's complaint is dismissed for lack of subject matter jurisdiction.

 I. BACKGROUND

 Shortly after the February, 1982 examination, Canteen discharged Moore and she filed a charge of race discrimination with the Commission against Canteen. This charge was eventually settled. Moore also filed a discrimination charge against Reid, alleging that Reid aided and abetted Canteen in discriminating against her by intimidating and harassing her during the examinations and by inaccurately reporting to Canteen that she had been deceptive or untruthful during those examinations. On August 26, 1988, Moore served a discovery request on Reid in which she asked for all polygraph examination records for Canteen employees tested by Reid between January 1, 1979 and December 31, 1983, for the purpose of comparing Reid's treatment of Moore with its treatment of other employees.

 Reid refused to turn over the requested records, and following a motion to compel and a lengthy briefing, the Commission's ALJ ordered Reid to produce the records on February 7, 1989. Exhibit B to Intervenor Moore's Motion for Summary Judgment at 2. In ordering the records, the ALJ also entered a protective order providing that the polygraph records were not to be disclosed to or reviewed by anyone other than Moore's attorneys and their assistants. Id. at 13. The order also provided that Moore's attorneys were allowed to ask questions of the employees whose records were obtained, or of anyone else who would have relevant information on their examinations. Id.

 Reid requested that the ALJ certify for interlocutory review the portion of the February 7th discovery order which required it to produce the examination records of present and former Canteen employees. On May 2, 1989, the ALJ entered an order certifying the question to the Commission. Exhibit A to Plaintiff's Motion for Summary Judgment. On August 4, 1989, the Commission entered an order affirming the ALJ's decision compelling the production of all polygraph examination records of Canteen employees tested by Reid between January 1, 1979 and December 31, 1983. Exhibit B to Plaintiff's Motion for Summary Judgment.

 On September 29, 1989, Reid filed this complaint seeking declaratory and injunctive relief against the Commission, the individual commissioners, and the ALJ who issued the discovery order. Reid contends that the production of the polygraph records of non-parties to the proceeding before the Commission would violate the Employee Polygraph Protection Act ("EPPA"), 29 U.S.C. §§ 2001-09. The EPPA places significant limitations on disclosure of polygraph records, though it allows an examiner to disclose records when ordered to do so by a "court of competent jurisdiction." 29 U.S.C. § 2008(b)(3). The effective date of the Act was December 27, 1988. Reid seeks a declaration that the Act applies to records in the possession of an examiner on the effective date of the Act where the examinations were conducted before the effective date of the Act. It also seeks a declaration that neither the ALJ nor the Commission is a "court of competent jurisdiction" within the meaning of the EPPA. Finally, Reid seeks an injunction prohibiting defendants from compelling it to turn over the records in question.

 II. DISCUSSION

 A. Federal Question Jurisdiction

 This court does not have subject matter jurisdiction over this case unless it is one "arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Federal question jurisdiction under § 1331 is complicated by the existence of the Declaratory Judgment Act, which authorizes district courts to issue declaratory judgments in "case[s] of actual controversy within [their] jurisdiction . . . ." 28 U.S.C. § 2201. The United States Supreme Court considered the question of jurisdiction over declaratory judgment actions in Public Service Comm'n v. Wycoff Co., 344 U.S. 237, 97 L. Ed. 291, 73 S. Ct. 236 (1952). In Wycoff a transporter of films and newsreels sought a declaration that its activities constituted interstate commerce. Id. at 239. The Court found that the complaint should be dismissed because no "actual controversy" existed, id. at 245-46, but also stated in dicta that: "where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is federal question jurisdiction in the District Court." Id. at 248. This statement seems to indisputably support Moore's position that no federal question jurisdiction exists in this case, but a recent Seventh Circuit has shed more light on this quote, and further analysis is needed.

 In Illinois v. General Electric Co., 683 F.2d 206 (7th Cir. 1982), the Seventh Circuit found that federal question jurisdiction existed over a declaratory judgment action brought by a waste facility operator and one of its customers, both of whom claimed that an Illinois statute was preempted by federal law. Id. at 208, 210-11. The operator of the facility and its customer, an out-of-state utility, had a contract providing for the utility's shipment of spent nuclear fuel to the operator's facility in Illinois. Id. at 208. The parties' arrangement was threatened by an Illinois law which prohibited spent nuclear fuel used in an out-of-state plant from being shipped into Illinois. Id. After finding that an actual controversy existed, the court found that the case arose under federal law because ...


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