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NATIONAL FEDN. OF FED. EMPLES. v. CARLUCCI

July 6, 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


Hogan, District Judge.


The opinion of the court was delivered by: HOGAN

Hogan, District Judge.

 On March 1, 1988, this Court entered a preliminary injunction against random urinalysis drug testing of civilian employees of the United States Department of the Army. National Federation of Federal Employees v. Carlucci, 680 F. Supp. 416 (D.D.C. 1988), appeal docketed, No. 88-5080 (D.C. Cir. March 16, 1988). After a hearing on March 11, 1988, the Court entered orders clarifying the preliminary injunction and denying defendants' motion for a stay pending appeal. On March 30, 1988, the Court of Appeals granted defendants' motion for a stay pending appeal. No. 88-5080 (D.C. Cir. Mar. 30, 1988) (order granting stay pending appeal).

 At the hearing on March 11, 1988, defendants' counsel moved for entry of final judgment, announcing themselves satisfied with the state of the record. Plaintiffs' counsel opposed the motion on the ground that additional discovery was required. The Court denied the motion for entry of final judgment. The discovery sought by plaintiffs has now been completed, and defendants have renewed their motion for entry of final judgment.

 The Court addressed the substantial and difficult issues presented by random urinalysis drug testing at length in its Memorandum Opinion of March 1, 1988. There is no need to replow that ground. Instead, the Court will review relevant developments, factual and legal, of the past four months and, incorporating its earlier Memorandum Opinion, enter a permanent injunction pursuant to Fed. R. Civ. P. 65(a)(2). The Court concludes, with the assent of counsel for both parties, that in light of the Court's analysis there remain no genuine issues of material fact for trial and judgment is appropriate under Fed. R. Civ. P. 56. This Memorandum Opinion and the Memorandum Opinion of March 1, 1988, constitute the Court's findings of fact and conclusions of law.

 Factual Developments

 The parties have entered into a number of stipulations of fact that are relevant to the issues presented. The stipulations, which were made a part of the record by filing with the Clerk on June 27, 1988, can be summarized as follows:

 -- In implementing the Army civilian drug testing program, *fn1" defendants did not rely upon any statistical information concerning the incidence of accident or safety violations by employees subject to testing, or the incidence of accident or safety violations caused by the use of tested-for drugs among covered employees.

 -- In implementing the Army civilian drug testing program, defendants did not rely upon any statistical information concerning the incidence of security violations by covered employees, or the incidence of security violations caused by use of tested-for drugs among covered employees.

 -- In implementing the Army civilian drug testing program, defendants did not rely upon any statistical information concerning the incidence of blackmail of covered employees, or the incidence of blackmail caused by use of tested-for drugs among covered employees.

 -- In designing the Army civilian drug testing program, defendants relied on no statistical information other than the Highlights from the 1983 Worldwide Survey on Nonmedical Drug and Alcohol Use.2 Particularly, defendants had no information, other than anecdotal information, regarding: the number of covered employees who used tested-for drugs; the number of covered employees who used tested-for drugs while off duty; the number of covered employees who used tested-for drugs on duty or immediately before reporting for work; the number of covered employees rated less than satisfactory or disciplined because of abuse of tested-for drugs; the number of employees rated less than satisfactory or disciplined because of alcohol abuse.

 -- The 1983 Worldwide Survey of Nonmedical Drug and Alcohol Use did not tabulate the number of covered employees who used tested-for drugs.

 -- A confirmed positive urinalysis test result for marijuana cannot show that the person regularly has been using marijuana or in the future will regularly use marijuana.

 -- A confirmed positive urinalysis test result cannot determine the date a tested-for drug entered the body.

 -- A confirmed positive urinalysis test result cannot distinguish between a casual user of a drug and a chronic user of a drug.

 -- In implementing the Army civilian drug testing program, defendants did not have and did not rely on department-wide information concerning instances of discharge of weapons by civilian guards ...


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