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NATIONAL TREASURY EMPLES. UNION v. LYNG

December 8, 1988

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
RICHARD LYNG, Secretary of Agriculture, et al., Defendants


Thomas A. Flannery, United States District Judge.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE

 Plaintiffs National Treasury Employees Union ("NTEU") and National Association of Agricultural Employees ("NAAE"), the collective bargaining representatives of various employees of the United States Department of Agriculture ("USDA"), have moved for a preliminary injunction against certain portions of the USDA's Drug Free Workplace Program (the "program" or "plan"). Specifically, plaintiffs challenge the provisions of the USDA's program that require random urinalysis testing of employees in so-called "testing designated positions" and "reasonable suspicion" urinalysis testing of all employees not in safety related positions. The plaintiffs argue that the proposed testing is an unconstitutional infringement of their members' Fourth Amendment rights against unreasonable searches and seizures.

 The various defendants *fn1" argue collectively that the USDA's compelling interests in ensuring public safety, guaranteeing the security of confidential government information, and establishing and maintaining integrity of the nation's drug interdiction efforts justify the challenged urinalysis testing programs. They argue that the employees have a diminished expectation of privacy in their jobs and that these diminished privacy interests are not unreasonably infringed by the challenged urinalysis testing provisions.

 The challenged urinalysis testing provisions are not required in conjunction with any regular employment-related medical examinations. Instead, the program requires that those employees designated for testing, under either of the challenged provisions of the plan, report to a collection site usually within two hours of notification, where they will be required to produce a urine sample under the direct or indirect observation of a collection monitor. Direct observation of the production of a urine specimen is mandatory for all "reasonable suspicion" urinalysis testing under the USDA plan.

 Because the defendants have failed to demonstrate, under the applicable case law, that the proposed random urinalysis testing is justified at its inception, the court enjoins the implementation of that portion of the USDA's plan. However, the court finds that the proposed "reasonable suspicion" urinalysis testing of employees in non-safety related positions, if based on reasonable, articulable, and individualized suspicion that a specific employee may be under the influence of drugs, satisfies the appropriate standard of reasonableness under the Fourth Amendment. The court thus denies plaintiffs' motion for a preliminary injunction of the USDA's proposed "reasonable suspicion" testing, as clarified. *fn2" The basis for these rulings is set out below.

 I. FACTUAL BACKGROUND

 2. The Parties

 NTEU is the exclusive bargaining representative of approximately 140,000 federal employees, including 812 employees of the USDA's Food and Nutrition Service ("FNS"). NTEU is the collective bargaining representative of two positions (and a total of five employees) that will be subject to random urinalysis testing under the USDA's program. *fn3" All of the employees represented by NTEU within the FNS will be subject to reasonable suspicion urinalysis testing. The defendants in this case are President Ronald Reagan, USDA Secretary Richard Lyng, and Anna Kondratus, Administrator of the Food and Nutrition Service.

 NAAE is the exclusive collective bargaining representative of non-management employees of the Plant Protection and Quarantine ("PPQ") program within the USDA's Animal and Plant Health Service ("APHIS"). Of the approximately 1,000 nationwide non-management PPQ employees subject to random urinalysis testing, over 600 are members of NAAE. Approximately 750 non-management PPQ employees represented by NAAE will be subject to both random and reasonable suspicion urinalysis testing under the USDA's plan. The defendants are USDA Secretary Richard Lyng and Dr. James Glosser, Administrator of the USDA's Animal and Plant Health Inspection Service.

 2. The USDA's Plan

 On September 15, 1986, President Reagan issued Executive Order 12564, entitled "Drug-Free Federal Workplace." 51 Fed. Reg. 32,889 (1986). The order authorized the head of each executive agency to develop a plan to achieve the objective of a drug free workplace. E.O. 12564 required these agency plans to include policy statements, employee assistance programs, supervisory training, and testing to identify illegal drug users. Id. at 32, 890. The testing provisions included requirements for voluntary and random testing for individuals in "sensitive," testing designated positions and authorization for reasonable suspicion, post-accident or unsafe practice, and applicant testing. *fn4" The designation of employees in sensitive positions and the extent of testing was left to the discretion of the individual agency heads.

 Pursuant to this authority, the USDA issued the details of its Drug Free Workplace Program on August 8, 1988. Agriculture Dep't Pers'l Manual Supplement 792-3. ("DPM Supp."). Citing its role in establishing policies which affect every aspect of agriculture, the USDA noted that it was crucial that these policies be developed and implemented in a drug-free environment. Id. at 1. Although the department acknowledged that the incidents of illegal drug use impacting upon its mission were low "when compared with the number of employees," id., it nonetheless implemented a program providing for employee counseling and assistance, supervisory training, employee education, and urinalysis testing on both a random basis and in each of the areas authorized by E.O. 12564. *fn5"

 The USDA had already issued a general notice on July 1, 1988, to all employees that the urinalysis testing provisions of its Drug-Free Workplace Program would commence in 60 days or later. The July 1, 1988, announcement identified the major provisions of the program and specified the various employee categories subject to urinalysis testing. USDA Sec'y Mem. 4430-1 at 1-2. In addition, those employees in testing designated positions (TDPs) individually received notice on August 16, 1988, that random urinalysis testing would commence no earlier than 30 days later. USDA Ass't Sec'y for Admin's 30-Day Notice Memo. Due to a series of administrative complications, testing had not begun before the pending motions became ripe for decision by this court. *fn6"

 3. The Collection Procedures

 The testing procedures under the USDA's plan adhere to the technical guidelines for drug testing programs promulgated by the Department of Health and Human Services ("HHS"). *fn7" A basic outline of the applicable procedure follows. An individual in a testing designated position will be selected for testing on some neutral basis like social security numbers. Employees selected on this basis are directed to a collection site usually within two hours of selection.

 Upon arrival at the designated site, an employee will be met by a collection monitor of the same sex. The collection monitor is responsible for ensuring the integrity of the specimen collection procedures. In addition to securing the collection facility itself, *fn8" the collection monitor is required to verify proper photo identification, require the employee to remove any unnecessary outer garments that might conceal items or substances that could be used to adulterate a urine specimen. *fn9" After washing his or her hands, the employee is directed to a stall or other enclosure where the sample is to be produced.

 The collection monitor is directed to note any unusual behavior or appearance in a permanent record book both before and during the production of a sample. Collection monitors are authorized to directly observe the production of a sample in instances where they have reason to believe the individual employee may alter or substitute the specimen provided. *fn10" The USDA program requires direct observation of sample production for all employees subject to testing for reasonable suspicion of drug use or impairment.

 4. The Testing Procedure

 In compliance with HHS guidelines, the USDA program calls for a two level testing process of urine specimens. *fn11" A sample will initially be screened using the radioimmunoassay (RIA) method with initial cutoff levels specified in the HHS regulations. Testing will be conducted in five drug categories: marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). *fn12" All specimens identified as positive on the initial test shall be confirmed using the gas chromatography/mass spectrometry (GS/MS) technique at the same cut-off levels.

 Only confirmed positive test results will be reported to the Medical Review Officer (MRO) at the USDA. Any employee with a positive test result will then be given the opportunity to present evidence to justify the result before the MRO. *fn13" If the MRO determines there is no justification for the positive result, *fn14" the now verified positive test result will be reported to the USDA's Employee Counseling Services Program Manager and to the management official empowered to recommend or take disciplinary action. *fn15"

 Under the USDA program, an employee with a verified positive urinalysis test will be subject to "the full range of disciplinary actions." While the severity of the disciplinary actions will depend on the circumstances of the individual case, a proposal for some disciplinary action is required. The exclusive list of alternatives includes reprimand, enforced leave, suspension without pay, reduction in grade or rate of pay, or removal. *fn16" Removal from service is mandatory for the failure to obtain counseling following a finding that an employee is using illegal drugs, has refused to be tested, or failed to refrain from illegal drug use after an earlier finding of such use. *fn17"

 5. The Testing Designated Positions

 Under the terms of E.O. 12564, the Secretary has apparently determined that all the sensitive positions identified in the Department will be designated for testing (TDPs). The plan calls for 100% testing of all TDPs in the first year with an annual testing rate of 25% thereafter.

 The TDPs at issue here are two FNS computer specialists, five FNS motor vehicle operators, and approximately 761 GS 436 (non-management) PPQ officers. According to the plan, the computer specialists have been designated because of the government's interest in preserving internal security. The plan notes that these specialists are significantly involved in "critical" USDA missions and pose a "relatively high" risk of effecting grave damage or realizing significant personal gain. *fn18" Motor vehicle operators have been selected because of the government's interest in safety due to the risks they pose to passengers, the public, and to property and because "the use of illegal drugs is inconsistent with the responsibility of safe vehicle operation." *fn19" The PPQ officers were selected to preserve the integrity of the government's drug interdiction efforts due to the "not uncommon" instances when they find drugs in the course of performing their responsibilities of ensuring that no prohibited ...


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