AFGE Local 1533 v. Cheney, AFL-CIO

• Decision Date: 10 September 1991
• Docket Number: AFL-CIO,I,No. 90-15834,AFL-CIO and CL,P,AFL-CI,90-15834
• Citation: 944 F.2d 503
• Parties: 6 IER Cases 1324 AFGE LOCAL 1533, Pearl G. Ruchman, Charles Coates, Elaine Posey, AFGE,; National Federation of Federal Employees (NFFE), and the National Federation of Federal Employees Local 795; Metal Trades Department,, Plaintiffs, and International Federation of Professional and Technical Engineers (IFPTE), and CLC, Intervenor-Appellant, v. Richard B. CHENEY, Secretary of Department of Defense, et al.; H. Lawrence Garrett, III, Secretary of the Navy, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 503

944 F.2d 503 6 IER Cases 1324 AFGE LOCAL 1533, Pearl G. Ruchman, Charles Coates, Elaine
Posey, AFGE, AFL-CIO; National Federation of Federal
Employees (NFFE), and the National Federation of Federal
Employees Local 795; Metal Trades Department, AFL-CIO, Plaintiffs,
and
International Federation of Professional and Technical
Engineers (IFPTE), AFL-CIO and CLC, Intervenor-Appellant,
v.
Richard B. CHENEY, Secretary of Department of Defense, et
al.; H. Lawrence Garrett, III, Secretary of the
Navy, et al., Defendants-Appellees. No. 90-15834. United States Court of Appeals,
Ninth Circuit. Argued and Submitted June 13, 1991.
Decided Sept. 10, 1991.

Page 504

Julia L. Akins, IFPTE, AFL-CIO, Silver Spring, Md., for intervenor-appellant.

Lowell V. Sturgill, Civ. Div., Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before BRUNETTI, KOZINSKI and RYMER, Circuit Judges.

KOZINSKI, Circuit Judge.

Once again we consider the constitutionality of a government-sponsored drug testing program, this time the Department of the Navy's random drug testing of civilian employees who hold Top Secret with Access (TSA) security clearances.

Facts

There is relatively little dispute over the facts. On June 30, 1989, the Navy issued Civilian Personnel Instruction 792-3 outlining a drug testing plan for its civilian employees. Under the plan, the testing is conducted in accordance with the "Mandatory Guidelines for Federal Workplace Drug Testing Programs," 53 Fed.Reg. 11,970 (Apr. 11, 1988), and is administered by qualified medical personnel. The results of the tests are strictly confidential. See Office of Civilian Personnel Management (OCPM) Instruction 12792.3, § 18(a) & (b), at 35-36 (June 30, 1989).

The plan requires that all Navy civilian employees holding TSA security clearances submit to random drug testing. Civilian employees are required to hold TSA clearances if they have "access" ¹ to top secret information of the United States. Top secret information is defined as information "the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security." Exec. Order 12356, § 1.1(a)(1), 47 Fed.Reg. 14874, 14874 (1982).

Page 505

To receive a TSA clearance, an employee must undergo an extensive background investigation which includes, at a minimum, a check of the Defense Center Index of Investigations and Federal Bureau of Investigation files, a subject interview and a field investigation. OPNAVINST 5510.1H, ch. 21, at 21-2 to 21-3 (Aug. 24, 1990). Typical elements of the field investigation are employment and credit history checks, employment and character reference interviews, and inquiries to local agencies in areas where the subject lived, worked or went to school. Id. Moreover, to maintain a TSA clearance, an employee is subjected every five years to a security review that covers many of the same areas as the initial background investigation. Id. at 21-3 to 21-4.

Appellant in this case, the International Federation of Professional and Technical Engineers (IFPTE), represents a large number of engineers employed by the Navy. The engineers are required to hold TSA clearances and are therefore subject to the Navy's random drug testing program. IFPTE intervened in a suit brought by five other federal civilian employee unions seeking to enjoin the Navy's drug testing program. Shortly after IFPTE intervened, and before it could conduct any discovery, the district court ruled on a motion for summary judgment submitted by the Navy. 754 F.Supp. 1409. The court granted the motion as to the Navy's random drug testing of civilian employees holding TSA clearances, relying heavily on the reasoning in Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied sub nom. Bell v. Thornburgh, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990). ² From that judgment, only IFPTE appeals. ³

Discussion

We review the constitutionality of the Navy's drug testing program de novo. See International Brotherhood of Teamsters v. Department of Transp., 932 F.2d 1292, 1298 (9th Cir.1991). Because this is a facial challenge to the Navy's program, we assume for the purpose of review that the Navy will implement its program with due regard for the constitutional rights of its employees. Thus, "we decide only the narrow question of whether these drug tests 'can ever be conducted' without offending the fourth amendment." Id. at 1298 (quoting Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 632-33 n. 10, 109 S.Ct. 1402, 1421 n. 10, 103 L.Ed.2d 639 (1989)). ⁴

I

IFPTE's principal argument is that the Navy failed to provide adequate justification for subjecting IFPTE members who hold TSA clearances to random drug tests because those members are never actually allowed to see or handle top secret information. To support its argument, IFPTE presents a series of declarations from its members alleging that "[t]hey were required

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