AMERICAN FED. OF GOV. EMPLOYEES v. Barr

• Decision Date: 12 May 1992
• Docket Number: No. C-88-1419 SAW.,C-88-1419 SAW.
• Citation: 794 F. Supp. 1466
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 33; American Federation of Government Employees, AFL-CIO, L-3584; Benita Mays, Plaintiffs, v. William P. BARR, Attorney General of the United States; J. Michael Quinlan, Director of the Federal Bureau of Prisons; Rob Roberts, Warden of the Pleasanton Federal Correctional Institution, Defendants.
• Court: U.S. District Court — Northern District of California

794 F. Supp. 1466

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 33; American Federation of Government Employees, AFL-CIO, L-3584; Benita Mays, Plaintiffs, v. William P. BARR, Attorney General of the United States; J. Michael Quinlan, Director of the Federal Bureau of Prisons; Rob Roberts, Warden of the Pleasanton Federal Correctional Institution, Defendants.

No. C-88-1419 SAW.

United States District Court, N.D. California.

May 12, 1992.

COPYRIGHT MATERIAL OMITTED

Cliff Palefsky, McGuinn, Hillsman & Palefsky, San Francisco, Cal., Mark Roth, Gen. Counsel, AFGE, Joe Goldberg, AFGE, Washington, D.C., for plaintiffs.

U.S. Attorney's Office, George C. Stoll, San Francisco, Cal., Richard Lepley, Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

JUDGMENT

WEIGEL, District Judge.

Plaintiffs sued to enjoin an allegedly unconstitutional drug testing program. The program was instituted by the United States Department of Justice for employees of the Federal Bureau of Prisons (the "Bureau"). Plaintiffs are a union that represents Bureau employees. In June 1988, this Court granted plaintiffs' motion for a preliminary injunction and enjoined the testing of any Bureau employee absent reasonable suspicion that drug use by that employee impaired his or her ability to perform official duty. American Federation of Government Employees, Council 33 v. Meese, 688 F.Supp. 547, 556 (N.D.Cal.1988). In September 1989, upon reconsideration of the case in light of decisions by the United States Supreme Court in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) ("Skinner"), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) ("Von Raab"), this Court reaffirmed the preliminary injunction without modification. American Federation of Government Employees, Council 33 v. Thornburgh, 720 F.Supp. 154 (N.D.Cal.1989). Before that reaffirmation, the Court had denied defendants' motion for summary judgment on plaintiffs' claims under the Fourth Amendment and the Civil Service Reform Act of 1974, 5 U.S.C. § 2302(b)(10).

Defendants now renew their motion for summary judgment on these claims. Supporting this renewed motion are a number of decisions by the Ninth Circuit and other jurisdictions upholding drug-testing programs with many of the same components as the program proposed by defendants. Defendants have also modified their original proposal in an attempt to bring it within constitutional bounds under prevailing case law. Plaintiffs agree that summary adjudication is appropriate but they raise objections to various aspects of defendants' modified proposal.

I. BACKGROUND

The drug-testing program proposed by the Bureau in 1988 called for the random testing of all Bureau employees. AFGE v. Meese, 688 F.Supp. at 549. The program also provided for the regular testing of job applicants, probationary employees, and management employees; testing in connection with on-the-job accidents or unsafe activities; and testing upon reasonable suspicion that an employee was under the influence of or using drugs. Id. at 549 and n. 2. This Court enjoined all proposed testing save that based on reasonable suspicion that drug use by an employee impaired his or her ability to perform official duty. Id. at 556. Several findings underlay this Court's decision. First, the Court found that the specific testing procedure — urinalysis — was both highly intrusive and minimally conclusive. Id. at 551-52. The Court also found the government interests purportedly served by the testing — safety, prevention of corruption, and preservation of public confidence in the Bureau — less than compelling. Id. at 552-54. The Court specifically noted the inability of urinalysis to demonstrate current impairment and the complete absence of any evidence indicating the existence or imminence of safety problems or employee corruption related to drug use by Bureau employees. Id. at 553-54. The Court concluded that less intrusive measures could deter the introduction of drugs by employees at Bureau institutions. Id. at 554.

Defendants' new program proposes testing in the same general categories initially outlined. The proposed random testing is now narrowed, however, to cover certain "testing-designated positions." Both the "post-accident" and "reasonable suspicion" components have also been somewhat narrowed. Plaintiffs nevertheless maintain their constitutional challenge to these three components.¹

II. DISCUSSION

A. Standards.

It is undisputed that mandatory urinalysis is a "search" under the Fourth Amendment. Skinner, 489 U.S. at 617, 109 S.Ct. at 1413. Whether it is an unreasonable search depends upon its nature and all the circumstances surrounding it. Id. at 619, 109 S.Ct. at 1414 (citation omitted). Neither a warrant nor probable cause is required where "special needs, beyond the normal need for law enforcement make such a prerequisite impracticable." Id. (citations omitted). The government's interest in operating a government office can present such "special needs" to justify a departure from the usual Fourth Amendment requirements. Id. at 620, 109 S.Ct. at 1414-15. When faced with such special needs, this Court must "balance the governmental and privacy interests" to determine whether a search is reasonable and thus constitutional. Id. at 619, 109 S.Ct. at 1414; Von Raab, 489 U.S. at 665, 679, 109 S.Ct. at 1390, 1397-98. The Ninth Circuit has followed this balancing approach in four recent decisions upholding drug-testing programs that allow the testing of employees absent reasonable suspicion of on-the-job impairment. Railway Labor Executives' Ass'n v. Skinner, 934 F.2d 1096 (9th Cir.1991) ("RLEA II"); Int'l Brotherhood of Teamsters v. Dept. of Transportation, 932 F.2d 1292 (9th Cir.1991) ("Teamsters") Int'l Brotherhood of Electrical Workers, Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir.1990) ("IBEW"); Bluestein v. Skinner, 908 F.2d 451 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 954, 112 L.Ed.2d 1042 (1991) ("Bluestein").

"Special needs" exist here under the meaning of the recent cases. The Bureau plan is not designed to enforce drug laws but to ensure the safe and effective discharge of duties by Bureau personnel, particularly in the context of Bureau prisons. See Federal Bureau of Prisons Drug-Free Workplace Program Statement ("Program Statement") at 1, 3-4. Test results may not be used in a criminal prosecution without the employee's consent. Pub.L. 100-71, 5 U.S.C. § 7301 note, at § 3(e); cf. Von Raab, 489 U.S. at 666, 109 S.Ct. at 1390-91. The balancing test is therefore appropriate here. See Teamsters, 932 F.2d at 1299; Von Raab, 489 U.S. at 666, 109 S.Ct. at 1390-91.

B. Random Testing.

1. Privacy interests.

This Court found urinalysis — the Bureau's proposed testing method — to be highly intrusive. AFGE v. Meese, 688 F.Supp. at 551.² Since that finding, the Supreme Court has rejected the notion that urinalysis is always a substantial privacy invasion. Von Raab, 489 U.S. at 671, 109 S.Ct. at 1393. That Court has also identified a number of factors that may reduce privacy expectations and thus the intrusiveness of the testing. These factors include prior notice, see id. at 672-73 n. 2, 109 S.Ct. at 1394 n. 2; limited discretion in choosing the tested employees, see Skinner, 489 U.S. at 634, 109 S.Ct. at 1422; and the particular employment context, see id. at 627-28, 109 S.Ct. at 1418-19; Von Raab, 489 U.S. at 677, 109 S.Ct. at 1396-97. These same factors minimize the privacy expectations of at least certain Bureau employees under the testing program proposed here. The Bureau will issue a specific notice to all employees and a copy of the revised program long before the testing begins. Fourth Quinlan Decl. at ¶ 2.³ The random selection of employees to be tested would leave no room for supervisory discretion. IBEW, 913 F.2d at 1460; First Quinlan Decl. at ¶ 8(b) and Exh. E. Bureau employees undergo urinalysis testing and background and integrity checks when hired, and whenever they report to work at a Bureau institution they are subject to routine searches of their person and property and, upon reasonable suspicion of drug use or criminal activity, a visual search, pat search, urine surveillance test, breathalyzer test, or "other comparable test" whenever they report to work at an institution. First Quinlan Decl. at ¶ 5 and Exhs. B & C. It therefore appears that employees who work at Bureau institutions have, while on the job, privacy expectations "markedly less than those of the public in general." Teamsters, 932 F.2d at 1300. See also Von Raab, 489 U.S. at 677-78, 109 S.Ct. at 1396-97; Skinner, 489 U.S. at 627-28, 109 S.Ct. at 1418-19; Connelly v. Newman, 753 F.Supp. 293, 296 (N.D.Cal.1990) (privacy expectations of investigators in Office of Personnel Management are comparable to those of railroad employees considered in Skinner since both work "in an industry subject to heavy government regulation"); NFFE v. Cheney, 884 F.2d 603, 612-613 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990) (pre-employment screenings and medical tests lower reasonable privacy expectations of Army civilian guards); AFGE v. Cavazos, 721 F.Supp. 1361, 1374-75 (D.D.C.1989), aff'd in part and vacated in part, 926 F.2d 1215 (1991) (Department of Education positions designated critical and sensitive and for which employees must complete application form inquiring about personal lives and prior drug use have reduced privacy expectations).

The Bureau's urinalysis procedures follow the mandatory guidelines promulgated by the Department of Health and Human Services (HHS). 53 Fed.Reg. 11970, 11979 ff. (1988); Program Statement at 5. The Supreme Court reviewed and approved these procedures in Von Raab. 489 U.S. at 661-62 n. 1 and 672-73 n. 2, 109 S.Ct. at 1388-89 n. 1 and 1394 n. 2. That the Bureau's program includes a random...