American Federation of Gov. Employees v. Weinberger

• Decision Date: 02 December 1986
• Docket Number: No. CV486-353.,CV486-353.
• Citation: 651 F. Supp. 726
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Caspar WEINBERGER, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Southern District of Georgia

651 F. Supp. 726

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Caspar WEINBERGER, Secretary of Defense, et al., Defendants.

No. CV486-353.

United States District Court, S.D. Georgia, Savannah Division.

December 2, 1986.

COPYRIGHT MATERIAL OMITTED

Mark Roth, Stuart Kirsch, American Federation of Government Employees, AFL-CIO, College Park, Ga., William Moore, Savannah, Ga., for plaintiffs.

Robert J. Cynkar, Richard Greenberg, Robert C. Chesnut, Jeffrey S. Paulsen, Dept. of Justice, Washington, D.C., Major Vincent E. Reilly, Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., of counsel, for defendants.

ORDER

EDENFIELD, District Judge.

Plaintiffs brought this action seeking injunctive relief and a declaratory judgment with respect to the validity of Directive 1010.9 of the Department of Defense (DoD Directive) and Army Regulation 600-85, Interim Change No. I11. In essence, the plaintiffs challenge the constitutionality of periodic drug testing of civilian employees occupying "critical" positions with the Department of Army. Before the Court is the defendants' motion to dismiss.

I. BACKGROUND

A. Nature and Scope of the Fort Stewart Civilian Drug Testing

In April, 1985, the Department of Defense issued its Directive 1010.9, calling for mandatory periodic drug testing by urinalysis of civilian DoD employees holding "critical" jobs. Army Regulation 600-85, Interim Change Ill was promulgated in February, 1986, and works to implement the DoD Directive, rendering it applicable to civilian employees holding "critical" positions with the Department of the Army.¹ The regulation lists as critical positions:

(1) Law enforcement.

(2) Positions involving national security of the army at a level of responsibility in which drug abuse could cause disruption of operations or the disclosure of classified information that could result in serious impairment of national defense.

(3) Jobs involving the protection of property or persons from harm, or those where drug abuse could lead to threats to the safety of personnel.

The named individual plaintiffs in this case are police officers at Fort Stewart, Georgia. They are among the approximately forty civilian employees (out of some 2,000 bargaining unit workers at the installation) whose positions qualify as "critical" under the regulation.

In June, 1986, the individual plaintiffs were issued DA Form 5019-R. The officers were required to sign this form as a condition of continued employment in their current positions. The form outlines the nature of the testing to which the employees are to be subjected and indicates the consequences attendant upon declining to sign the form or refusing to cooperate in the testing program after having signed. Of significance to this litigation, the form purports to operate as a consent to submit to periodic testing not only where probable cause exists to believe that the employee has been using drugs (or after an accident involving government equipment), but also periodically and irrespective of the existence of probable cause or reasonable suspicion concerning drug use.²

Initial testing is to be conducted using the relatively inexpensive EMIT test marketed by the Syva Company. This test measures the presence of drugs or drug "metabolites" in a person's urine, and is approximately 95-99% accurate. Only temporary action may be taken by the Army against an individual whose urine tests positive by the EMIT test. A positive EMIT test must be verified through the more expensive gas chromatography testing process which, according to testimony given to this Court, is virtually 100% accurate, assuming that proper chain of custody procedures are followed.³ If this latter test does not reveal the presence of drugs or drug metabolites in a urine sample that tested positive by the initial EMIT test, no action may be taken against the employee, and any temporary action already taken must be rescinded. A positive verification by the gas chromatography test, however, will lead to transfer of the employee to a noncritical position of a similar type and at a comparable rate of pay, if such a position is available. If no such position is available, the employee will be terminated. Some provision is made for referral of eligible offenders to drug counseling and treatment facilities; the criteria for determining "eligibility," however, are not defined in the Interim Change.

Testing was to begin at Fort Stewart on October 7, 1986. The instant action was filed by the individual plaintiffs and the labor organization representing them on October 6. The plaintiffs have alleged that implementation of the civilian drug testing program, in its current form, will infringe upon the fourth and fifth amendment rights of the plaintiffs, and that the Army program is violative of the Drug Abuse Office and Treatment Act (DAOTA), the Civil Service Reform Act (CSRA), and the Administrative Procedure Act (APA). The parties initially agreed to a temporary stay of the drug testing and, after a hearing before this Court on November 11, 1986, the stay was voluntarily extended until November 26.

B. Prior Litigation Concerning the Army's Civilian Drug Testing

On June 23, 1986, the United States District Court for the District of Columbia dismissed a suit challenging the very regulations under consideration in the instant action. Nat'l Fed. of Fed'l Employees v. Weinberger, 640 F.Supp. 642 (D.D.C.1986) ("NFFE"). That court found that the comprehensive administrative structure of the Civil Service Reform Act (CSRA) deprived the plaintiffs, a union local of the National Federation of Federal Employees and several of its members, of any right to bring an action in a federal district court challenging the validity of the regulations at issue. The basis for the D.C. district court's determination was its belief that adequate judicial review of the merits of any constitutional claim the plaintiffs might have would eventually, "albeit ex post facto," id. at 655, be available through any one of three channels. First, an employee against whom "adverse" action is taken on the basis of a positive urinalysis test can appeal the decision to the Merit Systems Protection Board (MSPB), 5 U.S.C. § 7512, and can then appeal the MSPB decision to the Court of Appeals for the Federal Circuit. Second, notwithstanding that the Army has taken the position that its civilian drug testing program is a nonnegotiable condition of employment because it relates to internal security practices, see 5 U.S.C. § 7106(a), the D.C. district court found jurisdiction to determine the regulation's negotiability to lie with the Federal Labor Relations Authority (FLRA), the decisions of which are appealable to an appropriate Court of Appeals. Third, with respect to claims of constitutional violations brought by those against whom no adverse action is taken on the basis of a positive test (and who thus would have no access to the MSPB machinery) or by those who tested negatively (but who nevertheless question the constitutionality of the testing procedure), the D.C. district court determined that nothing would preclude the bringing of a Bivens-type action (see Bivens v. Six Unknown Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971)) in a federal district court. Citing Bush v. Lucas, 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983), the D.C. district court held that "where `the ultimate question on the merits ... of a case may be appropriately categorized as one of "federal personnel policy,"' ... and the CSRA's `elaborate remedial system' will protect the constitutional and statutory interests at issue, a plaintiff must pursue challenges to agency action within that system." 640 F.Supp. 650 (citations omitted).

The NFFE plaintiffs sought an emergency injunction pending appeal from the Court of Appeals for the District of Columbia Circuit. Finding that "appellants had not demonstrated the requisite irreparable injury and likelihood of success on the merits necessary to justify issuance of an injunction," a panel of that Court of Appeals denied the requested relief. (Defendant's Exhibit F). Appeal from the dismissal of the district court action is currently pending.

Prior to the D.C. district court's decision, on May 21, 1986, the American Federation of Federal Employees (which is a party to the instant action), a local unit of that organization, and several individual local members had filed suit in the District Court for the Western District of Washington at Tacoma. In that action, as in the suit before the Court (and in contrast to the NFFE suit), plaintiffs sought a nationwide injunction against implementation of the Army's civilian drug testing program. The Washington district court, rendering its decision on August 5, 1986, found that the issues and parties to the action before it were substantially identical to those on appeal to the D.C. Circuit Court of Appeals. Thus, in the exercise of its discretion, the court dismissed the action without prejudice. Am. Fed'n of Gov't Employees v. Weinberger, No. C86-242T, slip op. (W.D. Wash. Aug. 5, 1986).

II. LAW AND ANALYSIS

The defendants here seek dismissal on both procedural and substantive grounds. Strongest among the government's arguments is its contention that this Court should dismiss in the interests of comity, giving due respect to the ruling of the Washington District Court, and refraining from interference with the conduct of the litigation in the District of Columbia.

It is well established in federal jurisprudence that generally "considerations of comity and orderly administration of justice dictate that two courts of equal authority should not hear the same case simultaneously." Washington Metropolitan Transit Authority v. Ragonese, 617 F.2d 828, 830 (D.C.Cir.1980). Were this a suit on a contract, it might well be that the dismissal prayed for by the government...