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National Federation of Federal Employees-Iam v. Thomas J. Vilsack

April 6, 2011

NATIONAL FEDERATION OF FEDERAL EMPLOYEES-IAM, PLAINTIFF,
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS SECRETARY OF AGRICULTURE, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Beryl A. Howell

MEMORANDUM OPINION

In this case, a union representing federal employees challenges the constitutionality under the Fourth Amendment of a U.S. Department of Agriculture ("USDA") policy expanding random drug testing to incumbent employees who work with at-risk youth in residential Job Corps Civilian Conservation Centers ("JCCCC"). These centers are located in remote or rural areas within the National Forest System, and are operated by the U.S. Forest Service ("USFS"), an agency of the USDA. The plaintiff National Federation of Federal Employees, Federal District 1-IAM ("NFFE"), which represents certain USFS employees covered by the new policy, alleges that the random drug testing policy violates the Fourth Amendment because it is overbroad and designates employees for random drug testing who have no critical connection to safety or other compelling governmental interests. Compl. ¶ 14.

Presently before the Court is the plaintiff's Motion for a Preliminary Injunction to enjoin random drug testing of USFS employees at JCCCCs; and defendants USDA and USFS's Motion to Dismiss, or, in the alternative, for Summary Judgment. After review of the memoranda filed in support and opposition to the parties' motions, the accompanying declarations and applicable law, for the reasons set forth below, the Court hereby DENIES defendants' motion to dismiss the Complaint, GRANTS defendants' motion for summary judgment, and DENIES plaintiff's motion for a preliminary injunction.

I.BACKGROUND

Plaintiff is a labor union that represents approximately 15,000 U.S. Forest Service employees, including those who work at approximately nineteen Jobs Corps Centers operated by the USFS. Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 1, Larry King Decl. (hereinafter "Pl.'s King Decl."), ¶¶ 2, 5; Compl. ¶ 1 (Factual Background). Jobs Corps Centers are vocational training programs administered by the Department of Labor for economically disadvantaged youth aged 16 to 24. Defs' Mot. Summ. J., Ex. 1, Larry Dawson Decl. (hereinafter "Defs' Dawson Decl."),¶ 3. Jobs Corps Centers serve more than 60,000 students at 124 centers across the country,and are intended to offer an environment in which students "obtain the education and vocational skills necessary to become productive and employable." Id. at ¶¶ 3-4. The case currently before the Court does not pertain to all Job Corps Centers, but only those operated and staffed by USFS employees.

A.Job Corps Students Generally

By statute, students admitted into Jobs Corps programs must be economically disadvantaged, and "(1) basic skills deficient; (2) a school dropout; (3) homeless, a runaway, or a foster child; (4) a parent; [or] (5) an individual who requires additional education, vocational training, or intensive counseling and related assistance, in order to participate successfully in regular schoolwork or to secure and hold employment." 29 U.S.C. § 2884. The defendants relay that many students are "from inner cities and were previously members of street gangs," that the program is their "last chance," providing "many students with an opportunity to significantly change their lives." Defs' Dawson Decl.,¶ 4.

Jobs Corps Centers are primarily directed toward disadvantaged, at-risk, or troubled youth and enforce a strict "zero tolerance" drug policy. Id. at ¶ 8. Students submit to drug testing upon entering the program, and must enroll in an anti-drug program if they test positive. Id. Despite knowing that they will be tested, approximately 26 percent of enrolling students nonetheless test positive for drug use. Id. at ¶ 7. To advance the Jobs Corps' drug-free policy, Jobs Corps staff members are required to monitor students for possible drug use and conduct periodic inspections of students' personal belongings. Id. Such inspections have included the use of canine units (drug dogs), and involve searches of personal lockers and living spaces. See Defs' Mot. Summ. J., Ex. 2, Linda J. Guzik Decl. (hereinafter "Defs' Guzik Decl."), ¶¶ 8-10; Defs' Mot. Summ. J., Ex. 3, Raymond J. Ryan Decl. (hereinafter "Defs' Ryan Decl."), ¶¶ 6-7; Defs' Mot. Summ. J., Ex. 4, Cynthia S. Kopack Decl. (hereinafter "Defs' Kopack Decl."), ¶¶ 7-9. Any Jobs Corps staff member, who suspects a violation of the drug policy, can order a student to submit to further testing. Defs' Dawson Decl., ¶¶ 8-9. After two positive tests for drug use, students are dismissed from the program. Id.

B.Jobs Corps Civilian Conservation Centers

By agreement between the U.S. Department of Labor (hereinafter "DOL") and the USDA, the USFS operates twenty-eight JCCCCs. These centers educate 6,200 students and are located in remote, rural sites within the National Forest System. Id. at ¶¶ 3, 5; see, e.g., Defs'Guzik Decl., ¶ 17 (closest trauma center to Trapper Creek JCCCC is 75 miles away); Defs' Ryan Decl., ¶ 13 (closest trauma center to Anaconda JCCCC is 97 miles away); Defs' Kopack Decl., ¶ 17 (closest trauma center to Cass JCCCC is 137 miles away); 29 U.S.C. § 2887(c)(1); 36 C.F.R. § 200.3(b). All JCCCCs are open 24 hours a day, seven days a week, and provide a residential program where students live and work. Defs' Dawson Decl.,¶ 6. Students at these sites are prohibited from bringing personal vehicles and therefore rely on JCCCC staff for transportation. See id. at ¶ 6.

The JCCCCs are staffed by USFS employees and contracted workers, some but not all of whom also reside at the centers with the students. Defs' Mot. Summ. J., Ex. 5, Larry Dawson Supplemental Decl. ("hereinafter Defs' Dawson Suppl. Decl."), ¶¶ 4, 7.The JCCCC staff are responsible for teaching, mentoring, and monitoring students admitted into the Jobs Corps program, as well as for the administrative operations of the centers. See Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 25, Lance Hamann Supplemental Decl. (hereinafter "Pl.'s Hamann Suppl. Decl."),¶¶ 5-13; Pl.'s Opp.to Defs' Mot. Summ. J., Exs. 9-20, 22, Job Descriptions of JCCCC Employees. JCCCC employees fill many occupational positions, including teachers, guidance counselors, training instructors, laundry machine operators, file clerks, computer assistants, purchasing agents, and cooks. See Pl.'s Opp. to Defs' Mot. Summ. J., Exs. 9-20, 22, Job Descriptions of JCCCC employees. No matter the position, all JCCCC staff members undergo pre-employment background investigations, which are "more rigorous" than the background checks undertaken for most other non-JCCCC USFS employees, and also undergo periodic background reinvestigations. Defs' Dawson Decl., ¶ 12; Defs' Dawson Suppl. Decl., ¶ 5. JCCCC employees are subject to the background check protocol that the USDA designed in 1993 for employees that "supervise young people." Defs' Dawson Decl., ¶ 12(all JCCCC employees are subject to a "Child Care National Agency Check with Inquires: Non Sensitive/Low Risk," and some are subject to "Moderate Risk Background Investigation: Moderate Risk/Public Trust").

Aside from nurses and those who hold commercial driver's licenses, JCCCC employees have not previously been subject to suspicion-less drug testing during employment. Pl.'s King Decl., ¶ 16. The defendants allege that at least eight JCCCC staff members have been disciplined for drug violations in recent years. Defs' Dawson Decl., at ¶ 17.

While the positions and specific duties of each employee differ, the defendants contend that all employees are responsible for the safety of the JCCCC students. Id. at ¶¶ 13-16; Defs' Guzik Decl., ¶ 18; Defs' Ryan Decl., ¶ 14; Defs' Kopack Decl., ¶ 18. All employees are trained in CPR and First Aid within 90 days of employment, and applicable regulations require staff members to hold driver's licenses so that they can be available to transport students to work sites, airports, medical appointments, for personal errands, or to help evacuate the centers in cases of emergency. Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 8, USDA Dep't Regulation No. 4430-792-2, Drug Free Workplace Program, Aug. 25, 2003 (hereinafter "USDA Drug Testing Regulation"), at A-7("Each staff member is required to possess a valid driver's license to transport students in case of emergency, to and from work sites, etc.") (emphasis added);*fn1 Defs' Guzik Decl., ¶ 16; Defs' Ryan Decl., ¶ 12; Defs' Kopack Decl., ¶ 16. Although some JCCCC employees rarely undertake such tasks, given the centers' remote locations and residential setting, all staff may be required to respond in an emergency situation and transport and care for students. Defs' Dawson Decl., ¶¶ 14-16; Defs' Guzik Decl., ¶¶ 17-19; Defs' Ryan Decl., ¶¶ 13-15; Defs' Kopack Decl., ¶¶ 17-19; see also Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 6, Jerry D. Case Decl. (hereinafter "Pl.'s Case Decl."), ¶ 5 ("I may have provided minor First Aid to students or other staff but do not have specific recollections").

Furthermore, some employees teach students vocational skills, such as welding and electrical work, which require use of plasma cutters and welding arcs, activities that pose inherent risks to the safety of students and require a drug-free environment for both teachers and students. Defs' Guzik Decl., ¶¶ 20-22; Defs' Ryan Decl., ¶ 16; Defs' Kopack Decl., ¶ 20.

In addition to ensuring student safety, the defendants contend that all JCCCC staff members are responsible for "(1) modeling appropriate behavior for students; (2) mentoring students toward responsible behavior; and (3) monitoring student behavior, including the possibility of drug use by a student." Defs' Guzik Decl., ¶ 11; Defs' Ryan Decl., ¶ 8; Defs' Kopack Decl., ¶ 11. The defendants supply the Court with three declarations from JCCCC employees who state that at their JCCCC sites, "every federal employee . . . interacts with students on a regular basis" and engage in formal and informal mentorships with students. Defs' Guzik Decl., ¶ 12; Defs' Ryan Decl., ¶ 9; Defs' Kopack Decl., ¶ 12. Indeed, the plaintiff concedes that "all JCCCC employees are likely to interact with students from time to time based on proximity." Pl.'s Mem. Opp. to Defs' Mot. Summ. J., ECF No. 14 (hereinafter "Pl.'s Opp. Mem."), at 2-3.

Plaintiff and the defendants disagree on the extent to which each JCCCC employee is required to enforce the Jobs Corps zero tolerance drug policy. The defendants assert that every JCCCC employee is responsible for monitoring and enforcing the zero-tolerance policy, and "can report suspicious behavior and recommend a student for suspicion-based drug testing." Defs' Statement of Material Facts as to Which There is No Genuine Issue, ECF No. 11, at ¶ 10 (citing Defs' Dawson Decl. ¶¶ 7, 9; Defs' Guzik Decl., ¶ 6; Defs' Ryan Decl., ¶ 6; Defs' Kopack Decl., ¶ 6); Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 5, Michelle L. Marnhout (hereinafter "Pl.'s Marnhout Decl."), ¶ 7 (in teacher's position, "I have a general responsibility to administer the zero tolerance policy that applies to students for drugs and alcohol. When I witness a violation of the policy, I am required to fill out a referral form and an incident report."); Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 3, Shawn L. Patterson Decl. (hereinafter "Pl.'s Patterson Decl."), ¶ 5 (in cook position, "I have a general responsibility to administer the zero tolerance policy that applies to students for drugs and alcohol."). The plaintiff supplied the Court with two declarations, however, from JCCCC purchasing agents, who state that they have "no responsibility for administering the zero tolerance policy." Pl.'s Case Decl., ¶¶ 1, 7 (stating that he has "no responsibility for administering the zero tolerance policy."); Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 4, Lance Hamann Decl. ("hereinafter Pl.'s Hamann Decl."), ¶¶ 1, 5, 8 (stating that he has "very limited contact with students," and has "no responsibility for administering the zero tolerance policy for students."). Nevertheless, the plaintiff appears to agree with the defendants that specific duties may vary for the same designated position depending upon the staffing, circumstances and needs of a particular center. Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 26, Michelle L. Marnhout Supplemental Decl. (hereinafter "Pl.'s Marnhout Suppl. Decl."), ¶ 6 ("For example, an employee at one JCCCC may occasionally volunteer to transport students while an employee in the same position at a different Center may never transport students.").

C. JCCCC Random Drug Testing Policy

Pursuant to Executive Order No. 12,564, 51 Fed. Reg. 32,889 (Sept. 15, 1986), reprinted in 5 U.S.C. § 7301 note, in 1988 the USDA issued the agency's "Plan for a Drug Free Workplace," which designated some employees, but not JCCCC employees, for random drug testing. In 1995, a U.S. Senate investigation revealed drug problems at Jobs Corps Centers, and the DOL instituted a "zero tolerance" drug program directed at ensuring that Jobs Corps Center students and staff remain drug-free. Defs' Mot. Summ. J., Ex. 6, Gerald A. Nagel Decl. (hereinafter "Defs' Nagel Decl."), ¶¶ 17-18. The policy provided: "All staff will be held accountable for actively supporting and implementing the Jobs Corps Zero Tolerance policy. All staff must be held to the same standards of conduct described in this policy for students. Possession, distribution, and use of drugs will not be tolerated." Id. at ¶ 18. Subsequently, in July 1996 the Secretary of Agriculture designated all JCCCC staff for random drug testing and these positions were added to the USDA's drug-testing regulations. Id. Nonetheless, due to opposition from the NFFE, the USDA decided against implementing drug testing for JCCCC staff at that time. Id. at ¶ 19.

In 2003, the USDA issued revised drug testing regulations and again included "Jobs Corps Center Staff" among those positions for which random drug testing was required. USDA Drug Testing Regulation, at app. A, sec. 14. The USDA Drug Testing Regulation states: "Each Center staff member sees students every day, and each staff member is responsible for the safety of every student, including administering CPR and/or first aid whenever needed. Also, each staff member is required to possess a valid driver's license to transport students in cases of emergency, to and from work sites, etc." Id. The regulation further states: "Drug usage by Center staff members could result in the loss of students' lives or injury to the students. Also, all Center staff personnel are responsible for administering the Zero Tolerance for Drug Policy. Improper or illegal drug use is inconsistent with assisting others in becoming and remaining drug-free." Id. The USDA again decided against implementing random drug testing for JCCCC employees at that time, however, due to the plaintiff's opposition. Pl's King Decl., ¶¶ 7-8; Defs' Nagel Decl., ¶ 19.

In 2007, the Office of National Drug Control Policy instructed federal agencies to review their drug testing procedures. Defs' NagelDecl., ¶ 19. As part of that effort, the USDA sought to revise and update its policy concerning drug testing at JCCCC centers. In May 2010, provisions mandating random drug testing of all JCCCC employees were included in the new USFS-NFFE collective bargaining agreement. Id. On August 30, 2010, the USDA notified JCCCC employees that the USDA was moving into compliance with the previously issued Drug Testing Regulation that designated JCCCC employees for random drug testing. Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 23, Letter from Larry Dawson to Center Directors (Aug. 30, 2010). The notification stated that although JCCCC nurses and those holding commercial driver's licenses had previously been the only JCCCC employees tested, the random testing policy now applied to all employees. Id.; see also Pl.'s King Decl., ¶ 16.*fn2 The notification also informed employees that each employee's position description would be amended to reflect the new requirement. Pl.'s Opp. to Defs' Mot. Summ. J., Ex. 23, Letter from Larry Dawson to Center Directors (Aug. 30, 2010). While the USDA's new drug testing policy applies to all JCCCC employees, it does not however, apply to non-federal contract workers on JCCCC sites -- many of whom undertake the same functions as JCCCC staff.Pl.'s King Decl., ¶¶ 13-14; Defs' Dawson Suppl. Decl., ¶¶ 9-10.

On October 13, 2010, the NFFE filed a Complaint against the USFS and the USDA, arguing that the new random drug testing regulation violates the Fourth Amendment because it is overbroad by "designating positions for random drug testing that have no direct nexus to safety or other compelling interests of the United States."*fn3 Compl. ¶ 20. On October 18, 2010, the plaintiff filed a motion for a preliminary injunction to enjoin implementation of the Drug Testing Regulation. ECF No. 2. The defendants agreed to stay testing for a short period pending adjudication of the plaintiff's challenge, see Joint Stipulation and Request for Order Regarding Schedule, ECF No. 4, but on January 1, 2011, JCCCC employees became subject to random drug testing. Pl.'s Status Report, ECF No. 8, Jan. 7, 2011. On January 28, 2011, the defendants filed a Motion to Dismiss, or, in the alternative, for Summary Judgment. ECF No. 11.*fn4

For the reasons set forth below, the Court denies defendants' motion to dismiss, grants the defendants' motion for summary judgment, and denies the plaintiff's motion for a preliminary injunction.

II.DISCUSSION

In order to prevail on its motion to enjoin the USFS's random drug testing program of JCCCC staff, the plaintiff must establish, inter alia, the likelihood that it will prevail on the merits, a proposition strongly contested by the defendants in their motion to dismiss for failure to state a claim or, ...


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