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NATIONAL FEDN. OF FED. EMPLES. v. CARLUCCI

March 1, 1988

National Federation of Federal Employees, et al., Plaintiffs
v.
Frank C. Carlucci, Secretary of Defense, et al., Defendants; American Federation of Government Employees, et al., Plaintiffs v. Frank C. Carlucci, Secretary of Defense, et al., Defendants; American Federation of Government Employees, et al., Plaintiffs v. Frank C. Carlucci, Secretary of Defense, et al., Defendants



The opinion of the court was delivered by: HOGAN

 Thomas F. Hogan, United States District Judge

 Two unions seek to enjoin compulsory random urinalysis drug testing of certain civilian employees of the Department of the Army. These consolidated actions are before the Court on plaintiffs' application for an expanded preliminary injunction and defendants' motion for summary judgment. As an employer, the government has a compelling safety interest, in some instances, in maintaining a drug-free work place ; it has not demonstrated, however, that urinalysis drug testing is capable of showing whether an individual is impaired by drugs or under the influence of drugs. Under Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335, 340-41 (D.C. Cir. 1987), urinalysis drug testing lacks the necessary nexus to the employer's safety concern to satisfy the Fourth Amendment. The government's nonsafety interests in maintaining a drug-free civilian work force are not sufficiently compelling to justify the substantial intrusion of mandatory, random urinalysis. Thus, the defendants have failed to show that the Army's civilian testing program is consistent with the Fourth Amendment. Accordingly, the Court shall deny defendants' motion for summary judgment and grant plaintiffs' application for an expanded preliminary injunction.

 The Court is aware that its decision cannot be squared with Mullholland v. Department of the Army, 660 F. Supp. 1565 (E.D. Va. 1987) (upholding random urinalysis drug testing of civilian employees at Army air base), appeal docketed, No. 87-2145 (4th Cir. Aug. 13, 1987), and American Federation of Government Employees v. Dole, 670 F. Supp. 445 (D.D.C. 1987) (upholding random urinalysis drug testing of employees of Department of Transportation), appeal docketed, No. 87-5417 (D.C. Cir. Dec. 11, 1987). On the other hand, it is in conformity with Thomson v. Weinberger, No. R-87-393 (D. Md. Feb. 27, 1987) (granting preliminary injunction to two civilian employees of Department of Army), and Railway Labor Executives' Association v. Burnley, 839 F.2d 575, 1988 U.S. App. LEXIS 1695 (9th Cir. 1988) (holding unconstitutional federal regulations mandating drug tests of railroad employees after certain train accidents). To date, courts have confronted the difficult issues posed by random drug testing without benefit of direct guidance from the Supreme Court, though the Court recently granted certiorari in National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987), cert. granted, 485 U.S. 903, 108 S. Ct. 1072, 99 L. Ed. 2d 232, 56 U.S.L.W. 3590 (1988) (No. 86-1879). The Court invites defendants to appeal this decision pursuant to 28 U.S.C. § 1292(a)(1) (1982); additionally, the Court respectfully suggests that the Court of Appeals consolidate the appeal in this action with that in American Federation of Government Employees v. Dole and consider scheduling the cases for en banc hearing as presenting a question of exceptional importance. See Fed. R. App. P. 35(a)(2).

 I. Procedural Background

 The Army's program of random urinalysis drug testing of civilian employees has been the subject of no less than six court challenges since it was devised in 1986. Three of those suits have been consolidated into the present action. *fn1"

 The first of these consolidated cases was filed in this district under the name National Federation of Federal Employees v. Weinberger, Civil Action No. 86-0681. Plaintiffs are the National Federation of Federal Employees (NFFE), a labor organization whose membership includes civilian employees of the Department of the Army; NFFE Local 2058, which represents a bargaining unit of 190 civilian guards employed by the Army at the Aberdeen Proving Ground in Maryland; and Charles W. Jackson, a civilian Aberdeen guard and president of Local 2058. Defendants are the Secretary of Defense, the Secretary of the Army, and the commanding officer of Aberdeen Proving Ground.

 This Court on June 23, 1986, denied an application for a preliminary injunction and dismissed the case, holding that it lacked subject matter jurisdiction when the union had not yet pursued its challenge before an appropriate administrative tribunal. National Federation of Federal Employees v. Weinberger, 640 F. Supp. 642 (D.D.C. 1986). The Court of Appeals for the District of Columbia Circuit reversed that decision on May 15, 1987. National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935 (D.C. Cir. 1987) (Edwards, J.). The Court of Appeals declined to decide the Fourth Amendment issues, remanding the case for findings of fact with respect to the nature and scope of the drug testing program. Id. at 942. The Court of Appeals did provide guidance on the constitutional issues, however, in the form of "general principles." Among them is the holding that compulsory urinalysis of public sector employees is a "search and seizure" within the meaning of the Fourth Amendment. Id. at 942-43. The Court of Appeals also provided a framework for determining the reasonableness of compulsory urinalysis, id., which of course will be utilized here.

 The second case was filed as American Federation of Government Employees v. Weinberger in the Southern District of Georgia. Plaintiffs are the American Federation of Government Employees (AFGE), a labor organization representing civilian employees of the Department of the Army; AFGE Local 1922, which represents 2,200 civilian employees at Fort Stewart, Georgia; and William Cox, Thomas R. Daniels, Joseph Lane, and James Johnson, civilian police officers employed by the Army at Fort Stewart. Defendants are the Secretary of Defense, Secretary of the Army, and the commander of operations at Fort Stewart. On December 2, 1986, Judge Edenfield issued a preliminary injunction against urinalysis drug testing of any civilian police officer at the Fort Stewart/ Hunter Army Airfield military installation absent reasonable suspicion that the employee has engaged in drug use. American Federation of Government Employees v. Weinberger, 651 F. Supp. 726 (S.D. Ga. 1986). The court held that urinalysis drug testing without individualized suspicion is unreasonable under the Fourth Amendment. Id. at 733. Plaintiffs had requested a nationwide injunction, but Judge Edenfield saw fit to limit his order geographically so as not to conflict with this Court's earlier decision in National Federation of Federal Employees v. Weinberger, 640 F. Supp. 642 (D.D.C. 1986). On June 29, 1987, after the Court of Appeals for the District of Columbia Circuit ruled in National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935 (D.C. Cir. 1987), the Georgia District Court, sua sponte, ordered American Federation of Government Employees v. Weinberger transferred to this Court. The case was assigned Civil Action No. 87-1797.

 The third case was filed as American Federation of Government Employees v. Weinberger in the Eastern District of California. Plaintiffs are the American Federation of Government Employees (AFGE); AFGE Local 1546, which represents 355 civilian employees at Sharpe Army Depot in Lathrop, California; and Rosemarie Alyce Duff, Dewey Lee, Monseis M. Ramos, Ronald George Spooner, and Daniel I. Straight, civilian guards and police officers at Sharpe Army Depot. Defendants are the Secretary of Defense, the Secretary of the Army, and the commander of Sharpe Army Depot. Plaintiffs sought a nationwide injunction against testing of civilian employees. The court declined to address the application for a preliminary injunction, instead granting on August 4, 1987, defendants' motion to transfer the case to this Court, where it was assigned Civil Action No. 87-2350.

 The three cases were consolidated in the present action and the Court received extensive briefing, reviewed voluminous exhibits, and heard oral argument on plaintiffs' motion for an expanded preliminary injunction and defendants' motion for summary judgment on September 16, 1987.

 II. Facts

 A. Directive 1010.9

 On April 8, 1985, the Department of Defense issued Directive 1010.9 authorizing each military department to establish a Civilian Employees Drug Abuse Testing Program. Under the Directive, civilian employees in "critical jobs" and applicants for those jobs may be required to participate (and to sign a form agreeing to participate) in urinalysis drug testing in the following four circumstances: 1) before appointment or selection; 2) periodically thereafter "on basis of neutral criteria"; 3) when there is probable cause to believe that the employee is "under the influence of a controlled substance *fn2" while on duty"; and 4) in the course of investigating an accident "for the purpose of accident analysis and the development of countermeasures."

 Jobs could be designated as "critical" only if they fell in a category deemed "sufficiently critical to the DoD mission or protection of public safety that screening to detect the presence of drugs is warranted as a job-related requirement": 1) jobs in law enforcement; 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.

 The program has three stated purposes:

 
1. Assist in determining fitness for appointment or assignment 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 property, threats to the safety of themselves and others, or the potential for unwarranted disclosure of classified information through drug-related blackmail.

 The Department of Defense's initiative is not rooted in the discovery of any particular drug problem among its civilian employees or any group of those employees. Rather, the program is a result of two factors. The first is the success of the Department of Defense in curbing illegal drug use among military personnel through urinalysis drug testing, including random urinalysis. Defendants cite surveys and studies showing a marked decrease in drug use after the uniformed services began widescale urinalysis testing. *fn3" In 1980, 27 percent of military personnel reported nonmedical drug use within the past 30 days; in 1982 the figure declined to 19 percent and in 1985 the percentage dropped to 9 percent.

 The second factor leading to the Department of Defense civilian drug testing program was the general national concern with the problem of illegal drug use. It is beyond dispute that the nation suffers immensely from illegal drug use and that workers impaired by drugs on the job are less safe, reliable, and productive. The defendants do not contend that this problem is particularly prevalent among federal workers *fn4" or civilian employees of the Department of Defense. For example, a 1983 report based on a survey of 7,000 randomly selected civilian employees of the Department of Defense showed only 4 percent of those employees used drugs for nonmedical purposes within the past 30 days. Even the anecdotal evidence of on-duty drug abuse by civilian employees is sparse and unconvincing. *fn5" Additionally, the results of compulsory random urinalysis fail to demonstrate a serious drug abuse problem among civilian employees of the Army. In the six-month period ending March 31, 1987, the Army tested the urine of 5,397 employees covered by the Civilian Employees Drug Abuse Testing Program. A total of 37 positive results were obtained, or.68 percent. *fn6" Thirty employees tested positive for marijuana metabolites; four tested positive for cocaine metabolites; and three tested positive for both marijuana and cocaine metabolites.

 B. Executive Order No. 12,564

 The Department of Defense authorized its Civilian Employees Drug Abuse Testing Program, and the Army implemented it, at a time when the nation was focusing increased attention on the problems caused by illegal drugs. On March 3, 1986, the President's Commission on Organized Crime, citing the failure of law enforcement efforts to reduce the supply of drugs, recommended "suitable drug testing" for all federal employees and employees of federal contractors as part of a renewed effort to reduce the demand for illegal drugs. President's Commission on Organized Crime, America's Habit: Drug Abuse, Drug Trafficking, and Organized Crime 450, 483 (1986). On September 14, 1986, the President and First Lady addressed the nation on television, launching a "national crusade" against drug abuse. President's Address to the Nation: National Campaign Against Drug Abuse, 22 Weekly Comp. Pres. Doc. 1183, 1185 (Sept. 14, 1986).

 The next day, September 15, 1986, President Reagan signed Executive Order No. 12,564, "Drug-Free Federal Workplace," 3 C.F.R. 224 (1987), directing all agency heads to develop programs to test "for the use of illegal drugs by employees in sensitive positions," id. at 226, and condemning the use of illegal drugs "on or off duty." Id. at 225. The President stated that drug testing "shall not be conducted pursuant to this Order for the purpose of gathering evidence for use in criminal proceedings." Id. at 228. He added: "Agencies are not required to report to the Attorney General for investigation or prosecution any information, allegation, or evidence relating to violations of Title 21 of the United States Code received as a result of the operation of drug testing programs established pursuant to this Order." Id. (emphasis added.) *fn7"

 C. Interim Change I11 to Army Regulation 600-85

 On February 10, 1986, the Department of the Army promulgated regulations implementing Department of Defense Directive 1010.9. Army Regulation 600-85, Interim Change No. I11 (Feb. 10, 1986). Interim Change No. I11 amends the existing Army Regulation 600-85 to include drug testing of civilians. It requires employees in critical jobs, as well as applicants for those jobs, to sign DA Form 5019-R, titled "Condition of Employment for Certain Civilian Positions Identified as Critical Under the Drug Abuse Testing Program." Form 5019-R states:

 
SECTION A - REQUIREMENTS
 
As a prospective or current employee in a position designated by the Department of the Army and approved by the Office of the Secretary of Defense as critical to national or internal security or to the protection of persons or property, you are required to read and sign this statement as a condition of employment. If you are an applicant for a critical job and fail to sign this agreement, you will not be selected for the position. If you are currently in a critical job and refuse to sign the condition of employment, you will be voluntarily or involuntarily reassigned or demoted to a noncritical job or separated from Federal employment. If you sign the condition and later refuse to submit to urinalysis testing, you will be non-selected, reassigned, demoted, or separated according to applicable regulations. To verify that you are not currently using drugs, you will be required, as a condition of your continued employment, to submit a urine sample for testing purposes; (1) periodically, on an unannounced basis, (2) when there is probable cause to believe that you are under the influence of drugs, and/or (3) when there is a mishap or safety investigation being conducted in relation to an accident involving government-owned vehicles, aircraft, or equipment. To assure the validity of these tests, a staff member of the same sex will observe you while you are providing the sample. Detection of drug usage through confirmed positive urinalysis test results may be cause for a determination that you have failed to meet the conditions necessary for your continued employment in the position. Medically prescribed drugs authorized by a physician and confirmed by appropriate evidence are excluded from such determinations. The results of urinalysis will be used only for clinical and necessary administrative purposes. You are entitled to any additional and reasonable information or clarification you desire prior to signing the agreement. A copy of the signed agreement will be given to you and your supervisor. The original will be placed in your Official Personnel Folder.
 
SECTION B - AGREEMENT
 
This is to certify that I understand the contents of the policy described above and the reasons therefor, and that I agree to adhere to the terms of this policy as a continuing condition of my employment in positions to which this agreement applies.

 Interim Change No. I11 states that at least 90 days before the initial urinalysis test, each employee holding a critical job must be informed of the reasons for the test and the consequences of failing the test or refusing to take it, including "adverse action." Additionally, employees must be told that they may submit supplemental medical documentation concerning the legitimate use of drugs, and that drug abuse counseling and referral services are available.

 The regulation permitted "field testing" of urine samples but specified that positive results from field test of current employees would be considered preliminary until confirmed by subsequent laboratory testing or an admission of the employee. Only "temporary" personnel action may be taken on the basis of a positive result from a field test. The action must be rescinded if the test result is not confirmed by laboratory testing or an admission of the employee.

 The regulation gives broad discretion to unit commanders to decide whom to test:

 
The decision to require an individual covered by the biochemical testing program to undergo such testing to detect drug abuse is the commander's prerogative. The management of available quotas, both for field and laboratory tests, is the commander's responsibility. He or she must decide which segments of the total population, civilian and military, are most at risk and allocate quotas accordingly. Beyond the pre-accession test for civilian employees in critical positions, subsequent testing is left to the commander's discretion.
 
Interim Change No. I11 listed five categories of jobs designated as "critical" and subject to urinalysis testing:
 
1) Aviation positions: air traffic controller, pilot, aircraft engine mechanic, aircraft overhaul specialist, prop and motor mechanic, aircraft mechanic, and aircraft servicer.
 
2) Guard and police positions: guard, police officer, criminal investigator, and correctional officer.
 
3) Personnel Reliability Program personnel: chemical and nuclear surety positions.
 
4) Alcohol and Drug Abuse Prevention and Control Program direct service staff.
 
5) All employees at Army forensic drug testing laboratories.
 
Defendants estimate a total of 9,400 of the Army's nearly 450,000 civilian employees are subject to random drug testing, as follows: 2,800 in aviation positions; 3,700 in guard and police positions; 2,250 in the Personnel Reliability ...

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