American Federation of Government Employees, AFL-CIO v. Skinner

• Decision Date: 08 September 1989
• Docket Number: AFL-CIO,No. 87-5417,87-5417
• Parties: , 4 Indiv.Empl.Rts.Cas. 1153, 1989 O.S.H.D. (CCH) P 28,659 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al., Appellants, v. Samuel K. SKINNER, Secretary Department of Transportation, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 884

885 F.2d 884

280 U.S.App.D.C. 262, 4 Indiv.Empl.Rts.Cas. 1153,

1989 O.S.H.D. (CCH) P 28,659

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et

al., Appellants, v. Samuel K. SKINNER, Secretary Department of Transportation, et al.

No. 87-5417.

United States Court of Appeals, District of Columbia Circuit.

Argued Oct. 18, 1988.

Decided Sept. 8, 1989.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 87-01815).

Joe Goldberg, with whom Mark D. Roth and Charles A. Hobbie, Washington, D.C., were on the brief, for appellants.

John R. Bolton, Asst. Atty. Gen., Dept. of Justice, with whom Jay B. Stephens, U.S. Atty., Leonard Schaitman and Robert V. Zener, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellees.

William W. Osborne, Jr. and John R. Mooney, Washington, D.C., were on the brief, for amicus curiae urging reversal.

Before WALD, Chief Judge; MIKVA and SENTELLE, Circuit Judges.

Opinion for the Court filed by Circuit Judge SENTELLE.

SENTELLE, Circuit Judge:

On June 29, 1987, the Secretary of Transportation announced a plan for testing certain employees of the Department of Transportation ("Department") for unlawful drug use. Order 3910.1, "Drug-Free Departmental Workplace," U.S. Dep't of Transportation, June 29, 1987 ("Order 3910.1"), Joint Appendix ("J.A.") at 17. Depending on the safety and security "criticalness" of the duties or prospective duties, employees and applicants may be subjected to urinalysis in one or more of seven circumstances. ¹ Those employed in "Category I" positions--jobs determined by the Department to have a direct impact on public health, safety, or national security--may be required to submit to random testing.

Appellants, the American Federation of Government Employees and certain Category I employees, brought suit to enjoin the suspicionless testing, alleging, inter alia, violations of the Fourth and Fifth Amendments, the Rehabilitation Act of 1973, 29 U.S.C. Secs. 701-795i (1982 & Supp. V 1988), and the Administrative Procedure Act ("APA"), 5 U.S.C. Secs. 551, et seq. (1982). The District Court's Fourth Amendment analysis focused on our opinion in NFFE v. Weinberger, 818 F.2d 935 (D.C.Cir.1987), which the trial court interpreted to require the balancing of factors bearing on reasonableness. AFGE v. Dole, 670 F.Supp. 445, 447 (D.D.C.1987). After weighing a variety of factors, ² the Court determined that, on balance, "[t]he random urine drug testing plan is reasonable on its face and must be sustained at this stage." Id. The Court disposed of appellants' statutory challenges in short order, concluding in a footnote that they were "not significant." Id. at 447 n. 6. Accordingly, the Court granted the Department's motion for summary judgment.

In this appeal appellants renew their contentions of Fourth Amendment and statutory violations. We affirm.

I.

According to Executive Order 12,564, signed by President Ronald Reagan on September 15, 1986, on- or off-duty illegal drug use by federal employees "evidences less than the complete reliability, stability, and good judgment that is consistent with access to sensitive information and creates the possibility of coercion, influence, and irresponsible action under pressure." Exec. Order No. 12,564, 3 C.F.R. 224 (1987), reprinted in 5 U.S.C. Sec. 7301 note at 175-77 (Supp. IV 1986). The Order accordingly directed executive-branch agencies to establish mandatory programs to test employees in "sensitive positions" for the use of illegal drugs. The Department became the first executive agency to implement a drug-testing program pursuant to the President's Order. Departmental Order 3910.1 establishes two categories of employees subject to testing, so designated because of their "safety and security criticalness." Order 3910.1, Ch. III, Sec. 2, J.A. at 28. Employees whose positions bear "a direct and immediate impact on public health and safety, the protection of life and property, law enforcement, or national security," i.e., Category I employees, are made subject to five types of testing: (1) random; (2) periodic "if they are required to take periodic physical examinations"; (3) reasonable suspicion; (4) accident or unsafe practice; and (5) follow-up. Order 3901.1, Ch. III, Sec. 3(A), J.A. at 28-29. All applicants for Category I positions must submit to pre-appointment testing. Id., J.A. at 29. All other employees in sensitive positions, classified as "Category II" employees, are subject to reasonable suspicion, accident or unsafe practice, and follow-up testing. Id. Sec. 3(B), J.A. at 29. As of June, 1987, the Department had classified nearly 30,000 of its approximately 62,000 employees in Category I. J.A. at 769.

Nearly two-thirds of the employees subject to random and periodic urinalysis testing are air traffic controllers, id., a group of employees not party to these proceedings, see Brief for Appellants at 23 n. 17. ³ Nearly twenty-two percent are employed as "electronic technicians." J.A. at 769. The remaining twelve percent are, among others, aviation safety inspectors (3%), motor carrier and highway safety specialists (1%), railroad safety inspectors (1.1%), civil aviation security specialists (.9%), aircraft mechanics (.7%), and motor vehicle operators (.2%). Id. at 769-70. ⁴

The testing procedures employed by the Department are substantially identical to those used by the Army to test its civilians, which we outlined in NFFE v. Cheney, 884 F.2d 603 (D.C.Cir.1989). Order 3910.1 explicitly provides that the guidelines for drug testing published by the Department of Health and Human Services are to govern. Order 3910.1, Ch. III, Sec. 1, J.A. at 28. See "Mandatory Guidelines for Federal Workplace Drug Testing, Programs," 53 Fed.Reg. 11,970 (Apr. 11, 1988) ("HHS Regulations" or "HHS Reg."). Order 3910.1 supplements the HHS Regulations with additional safeguards to be followed in both the sample-collection process and in the chain of specimen-custody. Order 3910.1 Ch. III, Secs. 8-10, J.A. at 32-39. Like the Army, the Department considers a test result positive for proscribed drugs only if it is positive on each of two separate tests, an initial test using immunoassay methods and a confirmatory test using gas chromatography/mass spectrometry (GC/MS) techniques. See HHS Reg. Sec. 2(4)(e)-(f). "All specimens negative on [the] initial test or negative on the confirmatory test shall be reported as negative." Order 3910.1, Ch. III, Sec. 9(B), J.A. at 38 (emphasis in original). The Department, like the Army, tests urine for the presence of five drugs (or their metabolites): marijuana, cocaine, PCP, opiates, and amphetamines. Id. 11(A)(1)-(5), J.A. at 39-40.

Unlike the Army program, the Department's plan permits an employee who has tested positive to insist that the sample be tested again, either at the site of the original tests or, at his own expense, "at another qualified laboratory identified by the employee." Id. Sec. 9(E), J.A. at 39. Although a Category I employee who tests positive "will be assigned non-safety or non-security duties," id. Ch. IV, Sec. 6, J.A. at 42, he may not be discharged solely because of a single positive test result, id. Ch. VI, Sec. 1(B), J.A. at 45. Absent additional circumstances, an employee will be removed from federal service only if he tests positive a second time. ⁵

II.

As in Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), and Cheney, supra, our analysis in the instant case is guided by the Supreme Court's recent opinions in National Treasury Employees Union v. Von Raab, --- U.S. ----, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives' Association, --- U.S. ----, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In Von Raab, the Court sustained urinalysis testing of United States Customs Service employees slated for promotions into positions that involved either interdicting illicit drugs or carrying a firearm. 109 S.Ct. at 1397. The Court withheld judgment on the reasonableness of testing employees solely because they would handle classified material, instead remanding the case to the Court of Appeals so that it could "clarify the scope of this category of employees." Id. In Skinner, the Court upheld the Federal Railroad Administration ("FRA") regulations authorizing railroads to toxicologically test certain employees involved in train accidents or incidents of violations of safety rules. 109 S.Ct. at 1420-21. In both cases the Court concluded that suspicionless testing, while a search, was reasonable and thus conformed with the dictates of the Fourth Amendment.

In their supplemental brief, filed at our direction after the Supreme Court issued its opinions, appellants argue that Skinner and Von Raab "should have little or no impact upon the decision in the instant case." Supplemental Brief for Appellants at 2. On a general level, appellants contend that "the results of NTEU and RLEA have no bearing on the employees in the instant case," who are neither engaged in drug interdiction nor employed as "operational members of train crews." Id. at 1. Appellants also argue that random testing, the exclusive focus of our attention, ⁶ is "vastly more intrusive than the limited drug testing" approved by the Supreme Court. Id.

We first must determine whether the Department's plan "serves special governmental needs, beyond the normal need of law enforcement." Von Raab, 109 S.Ct. at 1390. If it does, Skinner and Von Raab make clear that the plan need not necessarily be supported by probable cause or any level of particularized suspicion in order to be constitutional. Id.; Skinner, 109 S.Ct. at 1414, 1417. Appellants point out that the Department tests only for the presence of illegal drugs--rather than for any performance-impairing agent--thus making "clear that the agency's concern is law enforcement rather than direct public safety." Brief for Appellants at 27. Moreover, the failure to test for legal...