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NATIONAL FEDN. OF FED. EMPLES. v. CHENEY

January 19, 1990

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs
v.
RICHARD B. CHENEY, Secretary of Defense, et al., Defendants; GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, et al., Plaintiffs v. RICHARD B. CHENEY, Secretary of Defense, et al., Defendants


Harold H. Greene, United States District Judge.


The opinion of the court was delivered by: GREENE

HAROLD H. GREENE, UNITED STATES DISTRICT JUDGE

 Nearly 8,800 DMA employees have secret or top secret clearances, including accounting clerks, custodial workers, pest controllers, boiler plant operators, air conditioning mechanics, carpenters, warehouse workers and gardeners as well as those who use classified information as part of their jobs. Under the plan, employees who hold these clearances will be selected randomly and are required to appear on short notice to produce a urine specimen. If a verified positive test results, an employee must be disciplined -- and may be fired -- if he is unable to show that test result is due to something other than illegal drug use.

 All DMA employees regardless of whether they have access to sensitive information are subject to "reasonable suspicion" testing. Such suspicion testing may be based upon (1) observable phenomena, such as direct observation of drug use or possession or the physical symptoms of drug usage; (2) a pattern of abnormal conduct or erratic behavior; (3) arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use or trafficking; (4) information provided by reliable and credible sources or independently corroborated, or (5) newly discovered evidence that the employee has tampered with a previous drug test.

 (a) Random Testing. The Court of Appeals for this Circuit has recently held that the government's interest in protecting "truly sensitive information" is sufficient to justify random drug testing of federal employees with access to Top Secret information. Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 491-92 (D.C. Cir. 1989). In that case, the court upheld random testing of Justice Department lawyers with top secret clearances regardless of whether they had regular access to top secret information. Id. at 492. The court declined the plaintiff's invitation to order the Department to draw lines between employees who actually handle classified documents and those who do not:

 
It would not be desirable to ask the Department to draw distinctions, within the class of attorneys holding top secret clearances, between attorneys who do and those who do not deal with such materials on a regular basis. The whole point of granting top secret security clearances in advance is to provide flexibility, to ensure that employees can be given access to top secret materials as soon as the need arises.

 Id. The Court concluded that "if submission to drug testing can legitimately be made a requirement for access to top secret materials -- and Von Raab, indicates as much -- then the government may properly make testing a requirement for holding a top secret security clearance." Id. at 492. The Court of Appeals subsequently extended the holding in Harmon to cover not only employees with top secret security clearances but also those with secret security clearances. AFGE v. Skinner 280 U.S. App. D.C. 382, 885 F.2d 884 (D.C. Cir. 1989). On the basis of Harmon, defendant's motion for summary judgment must be granted with respect to the DMA plan for random drug testing of employees with valid secret and top secret security clearances. *fn3"

 (b) Reasonable Suspicion Testing. The DMA plan provides for the testing of any employee, regardless of the sensitivity of his position, so long as there is "reasonable suspicion" that he uses drugs. It does not, however, distinguish between on-duty and off-duty drug use or impairment.

 In Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989) this Court held that, as a general rule, reasonable suspicion testing was constitutional as long as there was individualized suspicion of on duty drug use or drug related job impairment. Id. at 650. See also, Hartness v. Bush, 712 F. Supp. 986, slip. op. at 16 (D.D.C. 1989)(requiring individualized suspicion of on-duty drug use or impairment); NTEU v. Lyng, 706 F. Supp. 934, 948-50 (D.D.C. 1988)(same).

 Defendant asserts that the requirement in Bangert of a reasonable suspicion of on-duty drug usage or impairment is untenable in light of Jones v. Jenkins, 279 U.S. App. D.C. 19, 878 F.2d 1476 (D.C. Cir. 1989) and NFFE v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C. Cir. 1989). Jones, however, does not address the issue, and Cheney stands for a somewhat different proposition.

 In Cheney, the Court of Appeals rejected the argument that drug testing was unconstitutional because it could not distinguish between on-duty and off-duty impairment. Id. at 609-10 & n. 8. In other words, the Court refused to reject the only available scientific test for determining on-duty impairment because it also detected off-duty impairment.

 This limited holding does not support defendant's far broader claim that it does not matter whether the impairment is on-duty or off-duty since the government has an interest in deterring both. The Court of Appeals may have implicitly rejected this type of argument in Jones. That decision explained that drug testing of District of Columbia school bus drivers was constitutional because it "ensures that employees . . . not be under the influence of drugs while on duty." Jones, 878 F.2d at 1477 (emphasis added). Were it of no consequence whether the impairment is on-duty or off-duty, as defendant claims, the last portion of the quoted sentence would be gratuitous.

 The government's argument also appears to fly in the face of the Supreme Court's careful balancing of the government's safety-related concerns and employee privacy interests. At issue in Skinner was post-crash testing of train crews. The government had a "compelling" safety interest because "even a momentary lapse of attention can have disastrous consequences". Skinner, 109 S. Ct. at 1418-19. For similar reasons, the crew members had a diminished expectation of privacy. Id. at 1418. In Von Raab, the Customs agents at issue were either directly involved in interdiction of illegal drugs, carried firearms, or both. Applying the same balancing test as in Skinner, the Court concluded that the ...


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