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NATIONAL FEDN. OF FED. EMPLES. v. CHENEY

July 17, 1990

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, AFL-CIO, et al., Plaintiffs,
v.
RICHARD B. CHENEY, et al., Defendants. GRAPHIC COMMUNICATIONS INTERNATIONAL UNION, AFL-CIO, CLC, et al., Plaintiffs, v. RICHARD B. CHENEY, 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

 Before the Court is plaintiffs' motion for summary judgment in a challenge to the constitutionality of so-called "reasonable suspicion" drug testing of employees of the Defense Mapping Agency (DMA). Under the agency's Drug-Free Workforce Plan, any employee may be required to undergo urinalysis testing upon a "reasonable suspicion" that he had used illegal drugs. *fn1" For the reasons stated below, plaintiffs' motion for summary judgment will be granted.

 I

 On April 27, 1989, the Defense Mapping Agency adopted a Drug-Free Workforce Plan, an agency-wide program of testing for drug usage through urinalysis, drug abuse counseling, and education. Under the plan, employees holding secret or top-secret clearances are required to submit to random drug tests. *fn2" The plan also provides for testing of any DMA employee as long as there is a "reasonable suspicion" that he had used drugs. *fn3"

 Under the plan, reasonable suspicion may be based, "among other things," upon: (1) observation of drug use or of physical symptoms of drug usage; (2) a pattern of abnormal conduct or erratic behavior; (3) the identification of an employee as the focus of a criminal investigation into drug possession, use or trafficking, or the arrest or conviction of an employee for a drug-related offense; (4) information provided by reliable and credible sources, or independently corroborated that an employee is using drugs; and (5) newly discovered evidence that the employees has tampered with a previous drug test. DMA Drug Testing Plan at 25. Plaintiffs have abandoned their challenge to the fifth category, and it will therefore be neither discussed herein nor enjoined.

 II

 Defendants argue that it is of no legal significance that the testing program may be unconstitutional because the affected employee can initiate an action after-the-fact under 42 U.S.C. ┬ž 1983 for violations of his constitutional rights. Def. Mem. at 4-5. The argument is frivolous; no court has ever held that a government agency may engage in the wholesale violation of constitutional rights as long as there is the possibility of a subsequent damages action.

 III

 The DMA plan violates the Fourth Amendment because it authorizes testing based on a suspicion of off-duty use in the absence of any indication of on-duty impairment. *fn4" See also, AFGE v. Sullivan, 744 F. Supp. 294, slip op. at 24-25 (D.D.C. 1990) (requiring a reasonable suspicion of on-duty drug use or impairment); Hartness v. Bush, 712 F. Supp. 986, slip op. at 16 (D.D.C. 1989) (same); NTEU v. Lyng, 706 F. Supp. 934, 948-50 (D.D.C. 1988) (same).

 The Supreme Court has made it clear that mandatory drug testing of government employees requires a balancing of the employee's expectation of privacy against the government's interests at stake. See Skinner v. RR Labor Executives Assoc., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989); National Treasury Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The government, as the employer, must prove special needs beyond the normal needs of law enforcement to justify testing its employees without a warrant or reasonable suspicion. Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1414. In Skinner, the Court upheld post-accident testing of train crews, on the basis of the existence of a compelling interest because a momentary lapse of attention by a member of a train crew could have disastrous consequences. Similarly, in Von Raab, the Customs agents being tested were directly involved in interdiction of illegal drugs, carried firearms on the job, or both. *fn5"

 No such interests are at stake here, and defendants do not claim otherwise. DMA's suspicion plan applies to all agency employees regardless of the lack of sensitivity of their positions, their lack of access to classified materials, and their lack of involvement with transportation facilities. That being so, the agency has no greater interest in these employees' off-duty drug use which does not result in on-duty drug impairment than it does in illegal drug usage by any other member of society.

 The DMA's basic defense of the testing notwithstanding that the origin of the suspicion may be off-duty use is that "while [the Plan's criteria] do not prove on-duty impairment, they certainly show that an employee is more likely to use drugs at work than an employee who does not meet those . . . criteria." Memorandum at 7. However, in the absence of some compelling interest (other than merely the interest in keeping all government employees drug free), that standard is patently insufficient.

 Moreover, it is implicit in the agency's use of standards which are not based on on-the-job impairment or on-the-job drug use that the individuals so identified do not exhibit on-the-job impairment or use. (Were it otherwise, these individuals would be identified without the need to resort to these standards.) The benefit that may be derived from uncovering individuals who show no on-the-job effects of drug use is far outweighed by the extraordinary ...


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