The opinion of the court was delivered by: HOGAN
The plaintiffs, led by the National Federation of Federal Employees ("NFFE"), have applied to this Court for a preliminary injunction, which would forbid the defendants from implementing a drug abuse testing program. The proposed program would require mandatory, random, and periodic urinalyses of federal civilian employees who work for the Department of the Army in "critical" job categories. In addition, NFFE seeks to enjoin the distribution to union members of DA Form 5019-R. The defendants characterize this document as a urinalysis consent form, the signing of which will constitute a condition for continued civilian employment with the Army.
The defendants are Secretary of Defense Caspar W. Weinberger, Secretary of the Army John O. Marsh, Jr., and Colonel Ronald P. Cypher, Commanding Officer of the Army facility known as Installation Support Activity, Aberdeen Proving Ground, Maryland ("Aberdeen"). Cypher will be responsible for administering the proposed drug testing program to the 190-200 members of NFFE's Local 2058 (a named plaintiff in this action) who work currently as security guards at Aberdeen.
Plaintiff Charles W. Jackson is President of Local 2058. Local 2058 members will not be subjected to testing until mid-July 1986. Members of other NFFE Locals may, however, be tested as early as June 24, 1986.
Under WMATC v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977), and Virginia Petroleum Jobbers Association v. FPC, 104 U.S. App. D.C. 106, 259 F.2d 921, 925 (D.C. Cir. 1958), plaintiffs argue that this case satisfies the traditional four-part test for a preliminary injunction. In regard to the likelihood of success on the merits, the plaintiffs claim that the Army's proposed program, which calls for drug testing where there is neither probable cause nor reasonable suspicion of drug use, violates the rights of federal employees to be protected from unreasonable searches and seizures under the Fourth Amendment, to due process under the Fifth Amendment, and to the pnumbral right of privacy under several amendments of the United States Constitution.
In addition, the plaintiffs charge that the program is violative of numerous federal statutory provisions. First, plaintiffs claim that it violates the Administrative Procedure Act ("APA"), 5 U.S.C. § 551, et seq., because it is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law . . .," "contrary to constitutional right . . .," and "in excess of statutory jurisdiction, authority or limitation . . . ." See 5 U.S.C. § 706(2)(A)-(C). Second, the plaintiffs contend that the program is contrary to the mandate of 42 U.S.C. § 290ee-1, which prohibits the federal government from denying or depriving federal civilian employment "solely" on the basis of prior drug use. Third, the plaintiffs argue that the intended program violates 5 U.S.C. § 2301(b)(2), which provides that "all employees for employment should receive fair and equitable treatment . . . with proper regard for their privacy and constitutional rights. . . ." (Emphasis added.) Fourth, plaintiffs assert that the program violates 5 U.S.C. § 2302(b)(10), which forbids the recommendation of agency personnel action (e.g., employee discharge) that "discriminate[s] for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others." (Emphasis added.) Finally, the plaintiffs challenge the program under 5 U.S.C. § 7513(a) (a provision related to § 2302(b)(10)), which permits agency action "against an employee only for such cause as will promote the efficiency of the service." (Emphasis added.)
The plaintiffs cite Elrod v. Burns, 427 U.S. 347, 49 L. Ed. 2d 547, 96 S. Ct. 2673 (1976), for the proposition that "the imminent denial of constitutional rights clearly constitutes irreparable injury." Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunction (" Prelim. Inj. Motion "), at 30. Plaintiffs maintain that they will soon be subjected to random, unconstitutional drug testing, and be required to divulge private information regarding their individual medical conditions and use of prescription drugs. Id.
Plaintiffs argue additionally that the defendants will not be harmed by a delay in the implementation of the testing program, because the Department of Defense "has admitted that there is no significant problem with drug abuse among civilian employees." Id. at 31.
Finally, the plaintiffs declare that injunctive relief would be in the public interest. Id. at 32. "The right of citizens to be protected from unreasonable search and seizure is a capital component of our constitutional system." Id.
The defendants have moved to dismiss the complaint, under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They argue that this Court is precluded from reviewing plaintiffs' claims, because this action involves a "labor-management" dispute, and is therefore governed by the exclusive jurisdictional framework of the Civil Service Reform Act ("the CSRA"). In particular, the defendants contend that plaintiffs' claims belong before either the Federal Labor Relations Authority ("the FLRA") or the Merit Systems Protection Board ("the MSPB"). In addition, the government maintains that the drug program at issue constitutes an agency action that is "committed to agency discretion by law" under the Administrative Procedure Act ("APA"), so that judicial review of the program is not available.
The defendants have also opposed plaintiffs' application for a preliminary injunction, arguing that this case meets none of the criteria for such relief.
The parties have supplied the Court with copious briefs, affidavits, and exhibits with respect to both the motion to dismiss and the preliminary injunction application. On May 22, 1986, the Court heard lengthy oral argument on both matters. After a thorough evaluation, the Court has concluded that the motion to dismiss shall be granted, and that the application for a preliminary injunction shall be denied.
I. The Challenged Drug Testing Program
A. Department of Defense ("DOD") Directive 1010.9
Directive 1010.9 was signed by Deputy Secretary of Defense William H. Taft, IV on April 8, 1985. It authorizes the establishment of "the DOD Civilian Employees Drug Abuse Testing Program." Under the Directive, personnel designated as "critical" are subject to the program. These personnel designations include the following:
(2) Positions involving the national security or the internal security of the Department of Defense in which drug abuse could cause disruption of operations, destruction of property, threats to the safety of personnel, or the potential for unwarranted disclosure of classified information.
(3) Jobs involving protection of property or persons from harm.
Id., P F1c(1)-(3). See supra note 1 (duties and responsibilities of security guards at Aberdeen facility).
Paragraph D of the Directive articulates the purpose of the testing program as follows:
1. Assist in determining fitness for appointment to, or retention in a critical job.
2. Identify drug abusers and notify them of the availability of appropriate counseling, referral, rehabilitation, or other medical treatment.
3. Assist in maintaining the national security and the internal security of the Department of Defense by identifying persons whose drug abuse could cause disruption of operations, destruction of property, threats to the safety of themselves and others, or the potential for unwarranted disclosure of classified information through drug-related blackmail.
Employees in (or "applicants" for) critical jobs "may be" required to participate in urinalysis testing in the following circumstances:
(1) Before appointment or selection.
(2) Periodically after appointment or selection on the basis of neutral criteria.
(3) When there is probable cause to believe that an employee is under the influence of a controlled substance while on duty.
(4) In an examination authorized by the Department of Defense or the DOD Component regarding a mishap or safety investigation undertaken for the purpose of accident ...