AMERICAN FEDERATION OF GOVERN. EMP. v. Dole, Civ. A. No. 87-1815.

• Decision Date: 30 September 1987
• Docket Number: Civ. A. No. 87-1815.
• Citation: 670 F. Supp. 445
• Parties: AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Elizabeth H. DOLE, Secretary, Department of Transportation, Defendant.
• Court: U.S. District Court — District of Columbia

670 F. Supp. 445

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Elizabeth H. DOLE, Secretary, Department of Transportation, Defendant.

Civ. A. No. 87-1815.

United States District Court, District of Columbia.

September 30, 1987.

Mark D. Roth, Joe Goldberg, Washington, D.C., for plaintiffs.

William W. Osborne, Jr., John R. Mooney, Washington, D.C., for amicus curiae, Nat. Air Traffic Controllers.

Robert Cynkar, Richard Greenberg, Dept. of Justice, Richard K. Willard, Wayne Vance, Robert Chesnut, Dept. of Transp., Washington, D.C., for defendant.

MEMORANDUM

GESELL, District Judge.

This is a suit to enjoin the Department of Transportation ("DOT") from continuing to carry out its random drug testing plan¹ developed under authority of Executive Order 12,564 captioned "Drug-Free Federal Workplace." Exec.Order No. 12,564, 3 C.F.R. 224 (1987). Plaintiff ("AFGE") is a labor union representing certain employees subject to the DOT plan which was announced June 29, 1987, and went into effect September 8, 1987.

DOT has moved for summary judgment and in opposing, AFGE has moved for a preliminary injunction, which in turn is opposed by DOT. Extensive papers have been filed and all issues were fully argued.²

The DOT plan under attack here supplements other DOT drug programs for testing certain employees at time of employment and at intervals scheduled well in advance by providing for random urinalysis testing of certain employees in sensitive positions.³ Only employees having critical jobs and falling in Category I are subject to this random testing. These employees are in jobs concerned with public health, safety, national security, and law enforcement; jobs which involve duties calling for the highest degree of trust and confidence. Each critical position subject to random testing is supported by a written justification statement describing why the job is critical and what would happen if an incumbent used illegal drugs. These justifications are subject to review and are monitored by an Assistant Secretary. Jobs from GS-4 to GS-14 and equivalents are covered, thus including both union and nonunion supervisory employees.

Ninety-four percent of the employees covered hold aviation-related positions such as air traffic controllers, electronic technicians, aviation safety inspectors and aircraft mechanics. In addition, fire fighters, nurses, railroad safety inspectors, armed law enforcement officers and "top secret" security clearance personnel are among those subject to random testing. Testing is under considerate procedures reflecting regard for personal privacy.⁴ No criminal use will be made of the results and no discipline other than an offer of rehabilitation service will occur if a first-time random urinalysis test is positive.⁵ All disciplinary actions that may occur upon further testing are subject to the Civil Service Reform Act of 1978. 5 U.S.C. § 1201 et seq. (1982 & Supp. III 1985).

To support its sweeping facial challenge to DOT's random drug testing plan, AFGE relies primarily on the Fourth Amendment to the Constitution,⁶ asserting that under the facts and circumstances shown by the affidavits and materials filed, random testing constitutes an unreasonable search.⁷ Elaborating, the Union points, among other things, to the admitted lack of probable cause, the lack of indisputable evidence that drug use always impairs employee performance, the lack of results procured in other non-random testing and the excessive intrusion upon privacy which arbitrarily results.

The Court clearly has jurisdiction to consider this constitutional challenge. There is no question that mandatory random urine testing is a search within the meaning of the Fourth Amendment under the controlling law of this Circuit, as the guiding precedent, Nat'l Fed'n of Fed'l Employees v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987), makes clear. However, the Amendment only prohibits "unreasonable" searches, and accordingly the focus of the drug testing case, like other Fourth Amendment testing cases, is factual, requiring the Court to balance factors bearing on reasonableness.⁸

National Federation of Federal Employees v. Weinberger, 818 F.2d 935 (D.C. Cir.1987), deals with a urinalysis drug testing program involving civilian employees of the Department of Defense. The Court emphasized that the balancing function concerns the "employees' reasonable expectations of privacy" considered against the "`government's interest in the efficient and proper operations of the work place.'" Id. at 942 (citations omitted).

As to the employees' privacy expectations, relevant factors include the nature and quality of the intrusion or search and whether employees have had reasonable advance notice and, of course, familiarity with testing safeguards and procedures of the plan after its effective date. In this situation 60 days' advance notice was given. Moreover, most employees subject to the random testing have had their urine tested for drug use at various times during their employment at scheduled intervals. The random testing is obviously somewhat more intrusive than the scheduled testing since it occurs in the midst of a day's work, and necessarily focuses special attention on a particular employee whose name crops up through chance computer selection.⁹ Testing itself is discreet and private.

On the other side of the balance the Court must consider issues raised in the litigation which go to the government's justification for its random testing plan. These involve: considering whether the search was justified at its inception, whether there are reasonable grounds to suspect work related drug use will be uncovered, whether those subjected to the test, generally speaking, are only those who in fact occupy critical positions affecting safety and security and whether use of illegal drugs is likely to impair a critical employee's work efficiency.

AFGE contends:

(1) that the true purpose of the testing is law enforcement, not safety and security;

(2) that based on past experience the testing will not prove productive;

(3) that many subjected to random testing are not, in fact, in critical jobs; and

(4) that recent drug use, medically speaking, cannot necessarily be shown to affect employment efficiency.

These positions are not supported in the factual record before the Court insofar as they may have legal relevance to the challenged testing personnel policy announced. They are considered seriatim below:

(i) No ulterior motive was established. DOT simply realized that illegal drug use has not been eliminated by criminal law enforcement and felt an obligation to protect public safety and to gain confidence for its programs. Tests are not used for criminal law enforcement purposes.

(ii) The fact that testing after substantial advance notice has not resulted in many positive urine samples bears little or no relationship to what may occur from random testing. The prospect of a random test may well itself be prophylactic and scheduled testing gives no measure of the random programs effectiveness.

(iii) AFGE presented no proof in support of its claim that noncritical jobs are involved. The three examples used by plaintiff in its brief proved fully justified within the program.¹⁰

(iv) DOT presented proof that drug use, at the level sought by testing generally impairs the normal functioning of employees.

Thus, on balance, the preponderance of the proof supports the reasonableness of the random plan. DOT's duty to assure the integrity of its sensitive aviation and other critical jobs and to protect the public safety is undisputed. The plan reflects a high degree of concern for employee privacy interests and is carefully tailored to assure a minimum of intrusion. The plan must be sustained against this generalized facial attack.

There is no proof of any results from a single random test under the plan or indeed that one has occurred. The written justification for each job in the critical category was not produced by either side. Thus the broad facial challenge to the entire plan has come to the Court in an incomplete and untested context. Given the sparse record and perhaps premature nature of the attack, the Court's conclusion leaves open the way for a later, more specific challenge clearly directed to a job category or to the beneficial or ineffective nature of the random program after its effectiveness can be measured by ample experience.

In view of the limited form in which this matter has been presented and to guarantee more informed review should a more specific, discrete claim be later advanced to some aspect of the plan as it develops, the Secretary shall maintain full records of each random test and subsequent...