decision to the MSPB. Id. Employees may also seek review of non-adverse actions (e.g., transfers and reassignments) by "petitioning the Special Counsel of the MSPB to investigate allegations of prohibited personnel practices. The Special Counsel may investigate these allegations and ask the MSPB to consider and order corrective action in the matter. Id. n.5. See 5 U.S.C. § 1206(a)-(c). In addition, the defendants argue, the Special Counsel may seek a stay of the challenged personnel action through a union grievance proceeding. Id. n.6.
Therefore, the defendants conclude, the MSPB alone may hear the type of personnel challenges the plaintiffs have presented to this Court in regard to the testing program -- i.e., the lack of a nexus between an employee's off-duty drug use and on-duty job performance. Id. at 10. Under 5 U.S.C. § 1205, the Army maintains, "the MSPB will conduct a fact-specific inquiry (with hearings, witnesses, and document production) into both the conduct that precipitated the adverse action and its effect upon the agency's mission to determine whether the nexus to justify the adverse action exists." Id. See 5 U.S.C. § 2302(b)(10) (agency may not discriminate against employee on basis of off-duty conduct "which does not adversely affect" employee's job performance); 5 U.S.C. § 7513 (agency may take action against employee only for "such cause as will promote the efficiency of the service.") More importantly, as expressed by the defendants, MSPB remedies are exclusive, even where an employee alleges the violation of a fundamental constitutional right. Defendants' Reply, at 17. Finally, the Army points out that an aggrieved Federal employee may appeal an adverse MSPB decision to the Court of Appeals for the Federal Circuit, so that his constitutional and statutory claims will eventually receive judicial review. See 5 U.S.C. § 7703.
Reluctantly, after careful analysis of the pertinent case law, the Court has untied this subject matter Gordian knot in favor of the Army. It appears that the plaintiffs must pursue their constitutional and statutory challenges to the drug abuse testing program within the administrative framework of the CSRA and not in this forum.
As enunciated by the United States Supreme Court in Bush v. Lucas, 462 U.S. 367, 385, 76 L. Ed. 2d 648, 103 S. Ct. 2404 (1983), "federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures -- administrative and judicial -- by which improper action may be redressed." Within this scheme, constitutional challenges to agency action, "are fully cognizable . . . . " Id. at 386 (emphasis added). Thus, where "the ultimate question on the merits . . . [of a] case may be appropriately characterized as one of 'federal personnel policy,'" id. at 380, and the CSRA's "elaborate remedial system" will protect the constitutional and statutory interests at issue, a plaintiff must pursue challenges to agency action within that system. See id. at 388.
The crux of the case before the Court is the Army's drug abuse testing program. As demonstrated by Local 2058's initial response to AR 600-85, Interim Change, No. Ill, supra, the ultimate question on the merits concerns a labor-management dispute -- i.e., an issue of federal personnel policy. Accordingly, unless the CSRA's remedial framework will not provide adequate review of the plaintiffs' constitutional and statutory concerns about the program, this Court lacks jurisdiction to rule on the merits of the union's case. Although not without concern over the serious issues presented, the Court concludes, on the basis of the record before it, that the FLRA and MSPB will eventually afford plaintiffs sufficient judicial review of their substantial challenges to the testing program, so that the complaint must be dismissed.
To begin with, there is a potential "Catch-22" in the defendants' FLRA argument. The Army has represented to the Court, both in their briefs and during oral argument, that the testing program is a non-negotiable condition of employment, because it involves the Army's internal security practices within the meaning of 5 U.S.C. § 7106(a)(1).
Defendants' Reply, at 6. See infra Part IIB (defendants contend successfully that District Court may not conduct APA review of plaintiffs' action because "internal security practices" under 5 U.S.C. § 7106(a)(1) are "committed to agency discretion by law.") Moreover, AR 600-85, Interim Change No. Ill, Page 5-14g states expressly that the drug testing program is "not negotiable with recognized labor organizations because it involves the Army's internal security practices within the meaning of 5 U.S.C. § 7106(a)(1)." See supra Part IB. Obviously, if the plaintiffs seek FLRA evaluation of the testing program, the Army will continue to take the position that the program is not negotiable.
Furthermore, under 5 U.S.C. § 7123(c), judicial review of a final FLRA order, such as a finding of non-negotiability, by the appropriate United States Court of Appeals "shall be on the record." Therefore, "no objection that has not been urged before the [FLRA] . . . shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances." (Emphasis added.) See EEOC v. FLRA, 476 U.S. 19, 106 S. Ct. 1678, 90 L. Ed. 2d 19, 54 U.S.L.W. 4408, 4409 (1986) (Court of Appeals without jurisdiction to consider issue not "urged" before FLRA). The plaintiffs asserted vehemently during oral argument that if they were routed to the FLRA and that body affirmed the Army's non-negotiability characterization, the constitutional and statutory challenges to the Army's program may never receive adequate judicial review, because the Court of Appeals would have no "record" to evaluate.
With respect to the MSPB avenue of relief, the plaintiffs' concern, expressed during oral argument, that possible constitutional and statutory violations would only be addressed on a case-by-case, ex post facto basis, is shared by the Court. The union asserts correctly that Article III courts are generally better equipped to evaluate the constitutionality and/or legality of government action than are administrative agencies.
Nonetheless, the plaintiffs have failed to identify sufficient precedent to justify resolution of the application for a preliminary injunction or non-dismissal of the complaint by this Court in light of the sweeping policy concerns of Bush, supra. In Keeffe v. Library of Congress, 588 F. Supp. 778, 786 (D.D.C. 1984), aff'd, 250 U.S. App. D.C. 117, 777 F.2d 1573 (D.C. Cir. 1985), a federal employee of the legislative branch was permitted to pursue her "First Amendment claim directly in . . . [District] Court, since the claim . . . [was] a constitutional one susceptible of immediate disposition on summary judgment, and require[d] an analysis wholly outside the expertise of the CSRA's decisionmakers." However, Keefe made clear that because the plaintiff was not an employee of the executive branch of the federal government, she did not have available to her "the CSRA's statutory appeals procedure culminating in the MSPB." 588 F. Supp. at 786. Therefore, she could not have processed her constitutional claim through the CSRA and obtained subsequent judicial review by the Federal Circuit. Id. at 787. In the present case, the plaintiffs are executive agency employees; thus, they do have available the administrative procedures of the CSRA.
Therefore, Keefe does not help them.
In Borrell v. United States International Communications Agency, a panel of this Circuit permitted a federal executive employee to bring her constitutional claim in district court, despite the fact that she was an executive agency employee. 221 U.S. App. D.C. 32, 682 F.2d 981, 990 (D.C. Cir. 1982). However, the Borrell panel made clear that because the plaintiff was only a "probationary employee," she would have had "no appeal to the MSPB or to a judicial forum at all from an adverse personnel action . . . ." Id. Therefore, the Court concluded that the plaintiff, who alleged she had been discharged in retaliation for "whistleblowing," was permitted to bring her First Amendment claim directly before an Article III court. Again, the plaintiffs in the present case have full CSRA protections and procedures available to them -- none of the Aberdeen employees is a probationary employee, and NFFE's Local 15 is already taking action before the FLRA. See supra note 6. See also Williams v. IRS, 240 U.S. App. D.C. 326, 745 F.2d 702, 705 (D.C. Cir. 1984) (per curiam) (plaintiff entitled to bring First Amendment claim directly in district court if he has "no CSRA-conferred guarantee of an administrative adjudication . . . or of direct court review").
The plaintiffs come closest to establishing the jurisdiction of this Court over their constitutional and statutory violations claims in Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475 (D.C. Cir. 1984). In Andrade, Judge Wright of this Circuit held that the plaintiffs were not required to bring their "non-constitutional claims through grievance channels before bringing their constitutional claim in federal court." (Emphasis in original.) Id. at 1491. He wrote also that "judicial proceedings on the constitutional claim would not forfeit the benefit of agency expertise." Id. Nonetheless, Judge Wright made clear that the plaintiffs could not have brought their constitutional claim in the hybrid contractual/statutory grievance procedure agreed to by the plaintiff employees and their federal employer, the Office of Juvenile Justice and Delinquency Prevention. Id. Moreover, "neither party argue[d] that the grievance procedure . . . [was] an adequate forum to resolve the constitutional claim." Id. Furthermore, in Andrade, the personnel action challenged by the plaintiffs was a reduction in force ("RIF"), whereas the constitutional claim pressed by them was a completely unrelated charge, under the Appointments Clause of the Constitution, Art. II, § 2, cl. 2, that the officials who planned and executed the RIF had not been appointed by the President nor confirmed by the Senate. Id. at 1480.
These cases stand for the proposition that, if a federal employee is subject to the CSRA, and has available to him the remedial procedures provided for therein, he must pursue his constitutional and statutory challenges to agency action before the appropriate administrative tribunal -- i.e., the FLRA or MSPB -- before he is entitled to judicial review of these claims. Although an employee has alleged constitutional claims in district court, he is precluded from having them heard there "for so long as effective remediation conceivably could have been achieved through the administrative process." Daly v. Costle, 213 U.S. App. D.C. 47, 661 F.2d 959, 963 (D.C. Cir. 1981).
This presumes, of course, that the constitutional or statutory violation claim at issue is not completely divergent from the agency personnel action complained of. See supra note 9 and accompanying text.
In the action before the Court, the union has not adequately demonstrated that resort to the FLRA and MSPB procedures for resolution of their constitutional and statutory claims would be "futile," nor have they demonstrated hurdles so high as to make the available CSRA scheme extremely burdensome or likely to delay judicial resolution for an "extremely long time." Andrade, 729 F.2d at 1493. Further, the union has shown, by virtue of the "conditions of employment" approach it took initially in response to AR 600-85, Interim Change No. Ill, see supra p. 18, that the constitutional and statutory claims in question arise out of the employee-employer relationship its members share with the Department of the Army: in short, they arise out of a labor dispute. See Wells v. FAA, 755 F.2d 804, 810 (11th Cir. 1985) (where "relationship between the Federal government agency supervisors and other Civil Service employees is a 'special factor,' " and plaintiff has available "various administrative forums" in which to assert claims, district court may not entertain Fifth Amendment claim).
As made clear by the Eighth Circuit in Carter v. Kurzejeski, any constitutional aspects of the plaintiffs' claims " will not escape judicial scrutiny. . . under the procedures mandated by Civil Service Reform Act." 706 F.2d 835, 841 (8th Cir. 1983). The FLRA provides for "indirect review in the courts of appeals of decisions of the panel if they form the basis of a final order by the FLRA in unfair labor practice proceedings." Council of Prison Locals v. Howlett, 562 F. Supp. 849, 851 (D.D.C. 1983) (footnote omitted). "In the absence of one of the few recognized statutory or judicial exceptions, that scheme is exclusive." Id. As demonstrated by the actions taken by NFFE's Local 15, see supra note 6, there is no "exception" available to excuse the national union and Local 2058 here from initiating proceedings before the FLRA. And, given the representations made by the defendants (both in their briefs and during oral argument) that the appropriate Court of Appeals will fully evaluate the plaintiffs' constitutional and statutory claims in the event the FLRA affirms the Army's "non-negotiable" characterization of the drug testing plan, it appears that effective judicial review is available, albeit later, to the plaintiffs. See Defendants' Reply, at 9 ("If the FLRA rules that the union proposal is a non-negotiable internal security matter, plaintiffs may appeal that decision to the Circuit Court of Appeals, and raise all its legal challenges to the urinalysis program there ") (emphasis added).
With respect to the MSPB procedures at issue, if an individual Aberdeen employee either refuses to be tested or tests positively for drug use in both field and confirmation tests, and the Army takes "adverse action" against him as that term is used in the CSRA, he may raise constitutional and statutory challenges to the testing program in MSPB proceedings. See 5 U.S.C. § 7703(b)(1).
In the context of the key statutory challenges raised by the plaintiffs, the MSPB would be better equipped to protect an employee's greatest concern -- his job security -- than this Court would be. In particular, the administrative tribunal would have the fact-finding capability and agency expertise to determine whether the Department of the Army had acted in accordance with 5 U.S.C. §§ 2302(b)(10) & 7513(a) in taking adverse action -- i.e., the Army would be required to demonstrate a nexus between either an employee's refusal to be tested or his positively tested off-duty drug use and his on-duty job performance.
If agency action is taken against a civilian employee that cannot be characterized within the framework of the CSRA as "adverse," so that the employee does not have an available avenue of relief to the MSPB, it appears that nothing would prevent the employee from bringing a Bivens-type action against the individuals who ordered or supervised his drug testing: in short, "effective remediation" for alleged constitutional deprivations could not "conceivably" be achieved through the administrative process. Daly, 661 F.2d at 963. See also Keeffe, 588 F. Supp. at 786 (district court must entertain constitutional claim of federal employee where statutory scheme protecting federal employees provides no remedy); Borrell, 682 F.2d at 990 (district court must entertain constitutional claim where federal statutory scheme protecting federal employees provides no MSPB or judicial review of agency action); Andrade, 729 F.2d at 1491 (district court must entertain constitutional claim where claim cannot be brought in grievance procedure agreed to by federal employer and employees under CSRA).
The same analysis would apply to an employee who tests negatively after submitting a urine sample under protest. As the plaintiffs correctly point out, "the urinalysis itself is not an adverse action . . . ." Plaintiffs' Response to Defendants' Reply to Opposition to Motion to Dismiss (" Plaintiffs' Response "), at 4. The union's concern about unredressed recurrence of possible Fourth Amendment violations is shared by the Court. See id. Again, however, because an employee who tested negatively would not be able to claim to the MSPB that he had been deprived of his constitutional rights (and would therefore have no eventual judicial review of such a claim available), nothing would preclude the bringing of a Bivens-type action against those personnel who ordered or administered the urinalysis in question. See Reuber v. United States, 242 U.S. App. D.C. 370, 750 F.2d 1039, 1056 (D.C. Cir. 1984) ("in assessing a Bivens action, the Court must permit such an action unless Congress has already provided an equally effective remedy to redress the constitutional wrongs or unless special factors exist which taken together make the Bivens action inappropriate") (footnote omitted). Nonetheless, none of Local 2058's members have been ordered to submit to testing to date, so that a Bivens-type approach to the drug testing program is not ripe. But cf. Bush, 462 U.S. at 388-89 (district court may not entertain Bivens action for damages against federal management personnel for imposing discipline on employees where "elaborate remedial system" of CSRA provides avenue of relief).
The Court must therefore dismiss this action although the drug testing program, on its face, raises substantial Fourth Amendment concerns. Furthermore, the fact that the field testing stage of the program requires observed urinalysis makes the Court question the reasonableness of the intrusion into possible privacy expectations. However, the Court cannot at this time consider these issues despite the alleged harm to the plaintiffs. Cf. Hastings v. Judicial Conference of United States, 248 U.S. App. D.C. 180, 770 F.2d 1093, 1102 (D.C. Cir. 1985) (agencies entitled to measure of comity "sufficient to preclude disruptive injunctive relief by federal courts absent a showing that serious and irremediable injury will otherwise result") (emphasis added).
B. Challenge Under the Administrative Procedure Act
Plaintiffs' charge that Directive 1010.9 and AR 600-85, Interim Change No. Ill, are violative of the APA, 5 U.S.C. § 706(2)(A)-(C), and seek district court review of these issuances by characterizing them as the products of "informal rule making" under 5 U.S.C. § 553. The defendants, however, seek dismissal of the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, because 5 U.S.C. § 701(a)(2) expressly exempts from district court review those agency actions that are "committed to agency discretion by law," and, under 5 U.S.C. § 7106(a)(1), internal security practices are so committed.
Motion to Dismiss, at 18-19. More importantly, the defendants point out that 5 U.S.C. § 553(a)(2) formally exempts from any "rule making" characterization "a matter relating to agency management or personnel." Defendants' Reply, at 12. Realizing the patent force of the Army's latter argument, the union argues, nonetheless, that the Directive and Interim Change constitute "final agency action" by the DOD and the Department of the Army, respectively, under 5 U.S.C. § 704, so that APA review is available in this Court. Plaintiffs' Response, at 1-2.
The plaintiffs' Section 704 argument is appealing but flawed in two critical respects. As Section 704 makes clear, "Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review." (Emphasis added.) First, as the Army correctly points out, the union points to "no other statute that both waives the government's sovereign immunity and gives district courts jurisdiction to grant relief in cases arising in . . . [this type of] federal labor-management context." Motion to Dismiss, at 18. In other words, the plaintiffs have failed to identify any statutory provision that permits this Court to review DOD directives or interim changes to army regulations such as these, which are applicable only to a limited group of federal employees -- i.e., those designated as "critical."
They have failed to identify any precedent which permits such review as well.
Second, as made clear in Part IIA of this opinion, supra, because FLRA and MSPB decisions are appealable to the Circuit Court and Federal Circuit, respectively, an "adequate remedy in a court," under § 704, appears to be available (albeit ex post facto) to the plaintiffs. In fact, "review of . . . [an FLRA] order shall be on the record in accordance with section 706 . . . ." 5 U.S.C. § 7123(c). Therefore, if the union initiates FLRA proceedings to challenge the testing program, and the FLRA affirms the Army's non-negotiability characterizations, the union may then attack the program at the Circuit Court level under the same APA standards it presses this Court to apply to the program at present: "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; "contrary to constitutional right, power, privilege, or immunity"; and, "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." See Complaint, Count V. Accordingly, the defendants' motion to dismiss shall be granted.
In accordance with the terms of this opinion, it is by the Court, this 23rd day of June, 1986, hereby
ORDERED that the defendants' motion to dismiss is GRANTED; and it is
FURTHER ORDERED that the plaintiffs' application for a preliminary injunction is DENIED; and it is
FURTHER ORDERED that this action is DISMISSED.