National Treasury Employees Union v. Yeutter

• Decision Date: 16 November 1990
• Docket Number: No. 90-5023,90-5023
• Citation: 918 F.2d 968,287 U.S.App.D.C. 28
• Parties: , 59 USLW 2368, 5 Indiv.Empl.Rts.Cas. 1605, 1990 O.S.H.D. (CCH) P 29,143 NATIONAL TREASURY EMPLOYEES UNION, Appellant, v. Clayton YEUTTER, Secretary, United States Department of Agriculture, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 968

918 F.2d 968

287 U.S.App.D.C. 28, 59 USLW 2368,

5 Indiv.Empl.Rts.Cas. 1605,

1990 O.S.H.D. (CCH) P 29,143

NATIONAL TREASURY EMPLOYEES UNION, Appellant, v. Clayton YEUTTER, Secretary, United States Department of Agriculture, et al.

No. 90-5023.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 13, 1990.

Decided Nov. 16, 1990.

Elaine Kaplan, with whom Gregory O'Duden, Washington, D.C., was on the brief, for appellant.

Jeffrey Clair, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Leonard Schaitman and Robert V. Zener, Attys., Dept. of Justice, were on the brief, for appellees. Mark W. Pennak, Atty., Dept. of Justice, Washington, D.C., also entered an appearance for appellees.

Before MIKVA, EDWARDS and SILBERMAN, Circuit Judges.

Opinion for the Court filed by Circuit Judge MIKVA.

MIKVA, Circuit Judge:

This challenge to a federal employee drug testing program raises Fourth Amendment issues both familiar and new to this court. Appellant, the National Treasury Employees Union (NTEU), appeals an order of the district court allowing the United States Department of Agriculture (USDA) to proceed with random urinalysis drug testing of certain USDA motor vehicle operators and "reasonable suspicion" drug testing of other Department workers. See National Treasury Employees Union v. Yeutter, 733 F.Supp. 403 (D.D.C.1990). We find USDA's plan to test the motor vehicle operators at issue here materially indistinguishable from testing previously upheld by this court, and accordingly affirm on that issue. We are unable, however, to approve the Department's reasonable suspicion testing program in its current form. Because USDA regulations authorize urinalysis testing of ordinary employees who are not suspected of on-duty drug use or impairment, and because those regulations mandate needlessly intrusive testing procedures, we find them unconstitutional. We therefore reverse the decision of the district court in part and remand.

I. BACKGROUND

Executive Order 12,564, issued September 15, 1986, barred drug use by federal employees on- and off-duty, and directed each executive agency to develop a plan for achieving a "drug-free workplace." Exec. Order No. 12,564, 3 C.F.R. 224 (1987) reprinted in 5 U.S.C. Sec. 7301 note at 909-11 (1988). The Order specified that these plans should provide for voluntary drug testing, testing when "there is a reasonable suspicion that any employee uses illegal drugs," post-accident and unsafe practice testing, testing in connection with drug counseling and rehabilitation, and testing of job applicants. Id. at 910. Responding to this Order, USDA issued its Drug-Free Workplace Program (the "Program") in August 1988. U.S. Dep't of Agric., Drug-Free Workplace Program (Department Personnel Manual Supp. 792-3, issued August 8, 1988).

NTEU challenged several aspects of the Program in its capacity as the collective bargaining representative of more than 800 employees of USDA's Food and Nutrition Service ^S, and the district court consolidated that suit with a related action brought by the National Association of Agricultural Employees, representing employees of USDA's Animal and Plant Health Inspection Service (APHIS). Together, the unions sought injunctions against random testing, reasonable suspicion testing, applicant testing, and post-accident testing.

On cross-motions for summary judgment, the trial court permanently enjoined random urinalysis testing of APHIS inspectors and FNS computer specialists, finding that the government lacks a constitutionally sufficient interest in testing these workers. NTEU v. Yeutter, 733 F.Supp. at 409-13. The court refused, however, to enjoin reasonable suspicion testing, post-accident testing, or random testing of FNS motor vehicle operators, concluding in each case that the government has an interest in testing strong enough to override legitimate employee privacy concerns. Id. at 413-17. Finally, the district court rejected the unions' constitutional challenge to applicant testing on standing grounds and dismissed statutory claims under the Civil Service Reform Act of 1978 and the Rehabilitation Act of 1973 as premature. Id. at 418.

On appeal, NTEU challenges those portions of the district court's order allowing USDA to go forward with random urinalysis drug testing of FNS motor vehicle operators and reasonable suspicion testing of all FNS workers. The National Association of Agricultural Employees is not a party to this appeal, and no other provisions of the USDA Program are at issue. Appellant does not challenge the district court's disposition of its statutory claims.

II. ANALYSIS

The judicial slate on Fourth Amendment challenges to government drug testing programs is already well-inscribed, with the Supreme Court's pronouncements in Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), etched most deeply. In Skinner, the Court upheld Federal Railroad Administration regulations that required post-accident drug testing of railroad employees and permitted testing after rules violations or minor accidents, and upon suspicion of on-duty impairment. It stressed the contextual reasonableness of dispensing with warrant and probable cause requirements, 109 S.Ct. at 1415-16, the diminished privacy expectations of railroad workers with respect to inquiries into their health and fitness id., 109 S.Ct. at 1418-19, the risk that drug impaired railroad workers could "cause great human loss before any signs of impairment become noticeable to supervisors or others," id., 109 S.Ct. at 1419, and the difficulty of detecting and deterring on-duty drug use through less intrusive means, id., 109 S.Ct. at 1419-20.

In Von Raab, the Court upheld those parts of a Customs Service testing plan that mandated urinalysis of employees directly involved in drug interdiction and those required to carry firearms. The Court followed the analytic path taken in Skinner, weighing the public interest in drug testing against the reasonable privacy expectations of tested employees. 109 S.Ct. at 1392-96. The record did not allow assessment of the reasonableness of testing Customs Service workers with access to classified material, however, so the Court remanded for further proceedings on this issue. Id., 109 S.Ct. at 1396-97.

Skinner and Von Raab establish that compelled urinalysis is a Fourth Amendment search, but also that individualized suspicion of drug use is not an invariable constitutional necessity. Skinner, 109 S.Ct. at 1412-13, 1417; Von Raab, 109 S.Ct. at 1390. Where urinalysis "serves special government needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in a particular context." Von Raab, 109 S.Ct. at 1390. With this framework in mind, we turn to the challenges appellant brings before us.

A. Motor Vehicle Operators

We do not start from scratch when evaluating NTEU's challenge to random testing of FNS drivers, a fact that greatly simplifies our balancing task. Because this part of USDA's Program parallels provisions of a Department of Transportation (DOT) drug testing program upheld in American Federation of Government Employees (AFGE) v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990), we need only decide whether the few distinctions between these situations require us to reach a different result here.

In AFGE v. Skinner this court noted that:

[S]trong safety interests support the testing of most Department [of Transportation] motor vehicle operators, who are responsible for, inter alia, the transportation of visiting foreign dignitaries and key Department officials and the operation of passenger-laden shuttle buses. Shuttle buses transport as many as 1,200 passengers each day. Thus, obvious safety interests support the testing of the majority of the Department's motor vehicle operators.

885 F.2d at 892 (citations omitted). Safety interests alone were not sufficient to validate random testing of DOT mail van operators, but the court found that strong national security concerns supported testing of these employees. Id. at 892-93.

The procedures for random testing of FNS drivers are identical in relevant respects to those at issue in AFGE v. Skinner, as both USDA and DOT follow drug testing regulations issued by the Department of Health and Human Services. See AFGE v. Skinner, 885 F.2d at 887; U.S. Dep't of Agric., Drug-Free Workplace Program Sec. 13-1(A); see also Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed.Reg. 11,970 (1988). Thus, only the specific duties of FNS and DOT drivers and differences in reasonable privacy expectations between the two groups might justify different outcomes.

NTEU stresses that whereas DOT motor vehicle operators routinely drove shuttle-buses, FNS drivers primarily chauffeur officials and deliver documents, with shuttle responsibilities limited to filling in for a private bus driver during lunch hours and sick days. From this the union concludes that the government's safety interest is so much weaker here than in AFGE v. Skinner that the constitutional balance tips against testing.

But in AFGE v. Skinner the court considered DOT's safety interest in testing its drivers "obvious," 885 F.2d at 892, a characterization that should discourage line-drawing based upon the number of passengers carried in an average day. And in Jones v. McKenzie, 833 F.2d 335 (D.C.Cir.1987), vacated sub nom. Jenkins v. Jones, 490 U.S. 1001, 109 S.Ct. 1633, 104 L.Ed.2d 149, modified, 878 F.2d 1476 (D.C.Cir.1989), this court upheld urinalysis drug testing...