AMERICAN FED. OF GOV. EMP., COUNCIL 33 v. Meese

• Decision Date: 16 June 1988
• Docket Number: No. C-88-1419 SAW.,C-88-1419 SAW.
• Citation: 688 F. Supp. 547
• Court: U.S. District Court — Northern District of California
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL 33; American Federation of Government Employees, AFL-CIO, L-3584; and Benita Mays, Plaintiffs, v. Edwin MEESE, III, Attorney General of the United States; J. Michael Quinlan, Director, Bureau of Prisons; and Rob Roberts, Warden, Pleasanton Federal Correctional Institution, Defendants.

688 F. Supp. 547

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

No. C-88-1419 SAW.

United States District Court, N.D. California.

June 16, 1988.

Cliff Palefsky, McGuinn, Hillsman & Palefsky, San Francisco, Cal., Mark D. Roth, Gen. Counsel, Joe Goldberg, Staff Counsel, American Federation of Government Employees, Washington, D.C., for plaintiffs.

Joseph P. Russoniello, U.S. Atty., Judith A. Whetstine, Chief, Civil Div., George Christopher Stoll, San Francisco, Cal., John R. Bolton, Asst. Atty. Gen., Mary E. Goetten, Richard G. Lepley, Attorneys, Dept. of Justice, Civil Div., Washington, D.C., for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER GRANTING PRELIMINARY INJUNCTION

WEIGEL, District Judge.

I. Summary of Decision

On January 25, 1988, the Federal Bureau of Prisons of the United States Department of Justice (the Bureau) adopted its "Federal Bureau of Prisons Drug-Free Workplace Program" (the Program). The Program would force law abiding employees of the Bureau, on two hours telephone notice, to submit to urinalysis testing even though not suspected of any drug use nor of any wrongdoing, negligence or dereliction of duty. Plaintiffs challenge the constitutionality of such testing, asserting that it violates Bureau employees' Fourth Amendment right to be free from unreasonable search.

The Bureau's proffered justifications for implementation of mass urinalysis testing are not supported by objective evidence. Therefore, the compulsory testing violates plaintiffs' constitutional rights under the Fourth Amendment, to be "secure in their persons ... against unreasonable searches." While the Court recognizes the serious problem of drug abuse facing our nation, the means of combatting it must be lawful.

There are cases in which compulsory drug testing may be justified in the interest of public safety or security or the like. This is not one. Rights guaranteed by the Constitution of the United States must not bend to public clamor. Unless and until the Bureau of Prisons may be able to present solid evidence that mandatory drug testing of innocent employees is required to insure the effective performance of duty by all or any class of its employees, the compulsory testing provisions of the Program must yield to the constitutional rights of law abiding employees.

The preliminary injunction granted by this Court is carefully limited to protect those rights.

II. Prefatory Note

This memorandum constitutes the Court's findings of fact and conclusions of law. The findings are based on the record; the conclusions upon the relevant law.

III. The Facts

On September 15, 1986, President Reagan issued Executive Order 12564, 51 Fed. Reg. 32,889-32,893 (Sept. 17, 1986), mandating that all executive agencies of the federal government establish programs "to test for the use of illegal drugs by employees in sensitive positions." Id. at § 3(a). The details of such programs were left largely to the discretion of agency heads. On September 25, 1987, pursuant to the Executive Order, the Department of Justice (DoJ) promulgated its "Drug-Free Workplace Plan". On January 25, 1988, as authorized by that Plan, the Bureau undertook to put into effect the Program involved in this case.

The Program calls for mandatory random testing of all employees, including administrators, secretaries and other office workers.¹ Probationary employees (those in their first year of Bureau employment) and management employees (those ranked at or above grade GM-13) would be subject to extra testing. In addition to remaining subject to the general random testing, each probationary employee would be tested once during the probationary period, and each management employee would be tested annually.²

The employees required to be tested would be chosen at random by computer. Those so selected would be required, on telephone notice as little as two hours, to report to a designated location for collection of a urine specimen. There, an escort of the same sex as the tested employee would be present to insure against alteration of the specimen. If there were reason to believe that a particular individual might alter the specimen, the escort would visually observe the urination.

Refusing to provide a specimen would result in disciplinary action up to and including discharge.

Laboratory testing of the urine would be conducted in accordance with technical guidelines promulgated by the Department of Health and Human Services (HHS Guidelines). 53 Fed.Reg. 11970 (April 11, 1988). The possible disciplinary consequences of a positive test result,³ while dependent on the circumstances of each case, would include discharge.

Plaintiff Benita Mays, a secretary with the Bureau at the Federal Correctional Institution in Pleasanton, California, would be subject to random testing under the Program. Plaintiff American Federation of Government Employees (AFGE), AFL-CIO, Council 33, is the bargaining representative for Bureau employees nationwide. Plaintiff AFGE, AFL-CIO, L-3584 is a chartered local of AFGE which represents Bureau employees in Northern California.

Defendant Edwin Meese, III is the Attorney General of the United States. Defendant J. Michael Quinlan is Director of the Bureau. Defendant Rob Roberts is the warden of the Pleasanton Federal Correctional Institution.

Testing under the Program was scheduled to begin May 23, 1988. On May 20, 1988, this Court granted plaintiffs' application for a restraining order, temporarily enjoining implementation of the Program pending decision on plaintiffs' motion for preliminary injunction.⁴ That motion is now before the Court.

IV. Requirements for Preliminary Injunctive Relief

The standards governing decision as to issuance of a preliminary injunction are well settled. This Court must consider plaintiffs' likelihood of success on the merits and the possible harm to the parties from granting or denying the preliminary injunction. "The critical element ... is the relative hardship to the parties. If the balance of harm tips decidedly toward the plaintiff, then the plaintiff need not show as robust a likelihood of success on the merits as when the balance tips less decidedly." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1421 (9th Cir.1984) (citation omitted). As to this balancing: Preliminary injunctive relief is appropriate if the moving party demonstrates probable success on the merits and the possibility of irreparable harm or if the moving party shows that serious questions are raised — i.e., a "fair" chance of success on the merits — and that the balance of hardships tips sharply in favor of the moving party. Id. The balancing of these factors rests in the reasonable discretion of the trial court. Id. On the facts of this case, as will be clear from what follows, the plaintiffs are entitled to a preliminary injunction.

V. Concerning the Fourth Amendment

The Fourth Amendment of the United States Constitution guarantees "the right of the people to be secure in their persons ... against unreasonable searches ..." There are literally scores of cases throughout the United States which attempt to reconcile the Fourth Amendment's constraints upon the government with attempts by the government to impose involuntary urinalysis testing such as that here involved. A relevant sampling includes: Railway Labor Executives Ass'n v. Burnley, 839 F.2d 575 (9th Cir.1988) (prohibiting compulsory blood and urine tests of railroad employees after certain train accidents, fatal incidents, and rule violations, absent reasonable individualized suspicion of current impairment); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir.1987) (upholding urinalysis testing of Customs Service employees voluntarily seeking transfer to sensitive positions, when specimen collection is scheduled in advance and there is no visual observation of urination process); McDonnell v. Hunter, 809 F.2d 1302 (8th Cir.1987) (random urinalysis testing of correctional institution employees constitutional if limited to those having day-to-day contact with prisoners in medium or maximum security prisons, since those employees have diminished expectation of privacy, and government has legitimate interest in insuring security of prisons); Penny v. Kennedy, 846 F.2d 1563, (6th Cir.1988) (mass urinalysis testing of police officers unconstitutional since potential harm from impaired officer is neither catastrophic nor irretrievable, and there was no evidence of any significant drug problem among officers); Shoemaker v. Handel, 795 F.2d 1136 (3rd Cir. 1986) (random urinalysis testing of race horse jockeys constitutional since pervasive regulation of horse racing industry, including licensing of jockeys and other employees, reduces jockeys' expectations of privacy and state has legitimate interest in maintaining public integrity of horse racing); National Federation of Federal Employees v. Carlucci, 680 F.Supp. 416 (D.D. C.1988) (mass urinalysis testing of civilian Army employees unconstitutional since excessively intrusive and not reasonably related to government's safety, security, or integrity concerns); Capua v. City of Plainfield, 643 F.Supp. 1507 (D.N.J.1986) (mass urinalysis testing of city fire fighters unconstitutional since highly intrusive and city had neither general job-related basis for instituting testing nor any individualized suspicion that any employee was impaired by drugs).

In each of these cases, the determination as to constitutionality is based almost entirely upon consideration of the particular facts to answer this question: Does a proper governmental interest justify the intrusiveness of the...