American Federation of Government Employees, AFL-CIO v. Roberts
| Decision Date | 30 November 1993 |
| Docket Number | No. 92-16298,AFL-CIO,92-16298 |
| Parties | 9 IER Cases 285 AMERICAN FEDERATION of GOVERNMENT EMPLOYEES,; Benita Mays; American Federation of Government Employees, (AFGE), Plaintiffs-Appellees, v. Rob ROBERTS, Warden; Michael Quinlan; Janet Reno, * Attorney General of the United States, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lowell Sturgill, Asst. Atty. Gen., U.S. Dept. of Justice, Washington, DC, for defendants-appellants.
Joe Goldberg, American Federation of Government Employees, Washington, DC, for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before: CHOY, CANBY, and NOONAN, Circuit Judges.
The Attorney General and the Federal Bureau of Prisons (collectively the Bureau) appeal a permanent injunction of the district court against the Bureau's drug testing program. We reverse in part and remand.
By executive order of September 15, 1986, the President of the United States directed each agency in the Executive Branch to establish a program to test employees in sensitive positions for the use of illegal drugs. Exec. Order No. 12564, 51 Fed.Reg. 32,889 (1986). The Bureau accordingly drew up a program including the regular annual testing of management (positions rated G-13 or above), the testing on reasonable suspicion of all employees, and the random testing of 5-10 percent per year of all the Bureau's 21,000 employees.
In June 1988, the American Federation of Government Employees and certain individual employees (collectively the Union), sought to enjoin the program. On May 12, 1992, the district court issued the following permanent injunction:
1. Random Testing. The Bureau of Prisons may conduct random urinalysis testing only of:
(1) those employees in primary law enforcement positions who, in the regular (2) those licensed physicians and dentists in primary law enforcement positions who, in the regular course of their duties, diagnose, treat, or directly supervise the diagnosis or treatment of patients on a daily or weekly basis;
course of their duties, are issued or given access to firearms for use on a daily or weekly basis;
(3) those employees in primary law enforcement positions who (a) have direct contact with inmates (b) on a daily or weekly basis (c) for periods of one hour or more each day of contact.
2. Post-Accident Testing. The Bureau may conduct urinalysis testing of those employees in primary law enforcement positions who apparently cause accidents or engage in unsafe practices (1) involving personal injury that requires immediate medical treatment, or (2) resulting in more than $2,000 damage.
3. Reasonable Suspicion Testing. The Bureau may test those employees of whom the Court has approved random drug testing, upon reasonable suspicion of on-duty or off-duty drug use or impairment by these employees. All other Bureau employees may be tested only where there is reasonable suspicion of on-duty drug use or impairment. "Reasonable suspicion" to test in either circumstance must be supported by (1) evidence of specific, personal observations concerning job performance, appearance, behavior, speech, or bodily odors of the employee; or, if based on hearsay evidence, (2) corroborative evidence from a manager or supervisor with training and experience in the evaluation of drug-induced impairment.
American Fed. of Gov't Employees, Council 33 v. Barr, 794 F.Supp. 1466, 1479 (N.D.Cal.1992).
The Bureau appealed.
Issues no Longer in Litigation. The Union does not contest that the Bureau may test employees with access to the Witness Security program and the Witness/Victim program of the Bureau. The Bureau does not appeal the injunction so far as it applies to the approximately 7 percent of its employees who are not employed within correctional institutions. The issues on appeal are the random urinalysis of between 5-10 percent each year of all Bureau employees working within correctional institutions, as well as the reasonable-suspicion testing of all Bureau employees.
Established Law. Urinalysis, when required by the government, is a search of the body that is constitutionally prohibited unless it is reasonable. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989); Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-619, 109 S.Ct. 1402, 1412-14, 103 L.Ed.2d 639 (1989). What is reasonable depends upon the special needs of the government in terms of the government's requirements of those being tested and the reasonable expectations of privacy of those subjected to the test. Von Raab, 489 U.S. at 665-66, 109 S.Ct. at 1390-91; Skinner, 489 U.S. at 619-20, 109 S.Ct. at 1414. A warrant is not necessarily a precondition. Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. Particular suspicion of an individual is not necessarily a precondition. Id. What the government must show is a reasonable accommodation of the tested employees' privacy expectations to the special needs the government serves by testing.
The Bureau's Needs. The Bureau starts from the fact that more than half of the inmates of federal prisons are there for drug-related crimes. U.S. Dep't of Justice, Bureau of Justice Statistics, Drugs, Crime, and the Justice System 195 (1992). Although not all distributors of drugs are drug users, the familiarity bred from handling drugs may reasonably be expected to have frequently led to the use of drugs.
Federal prisoners are tested on suspicion and randomly for drug use. The percentage of drug tests that proved positive in the year July 1, 1989-June 30, 1990, was not large--1.1 percent for marijuana; 0.4 percent for cocaine; 0.4 percent for heroin; 0.01 percent for methamphetamines. U.S. Dep't of Justice, Bureau of Justice Statistics, Drug Enforcement and Treatment in Prisons, 1990 6 Drugs can reach prisoners only by smuggling. The smugglers have to be the prisoners themselves on arrival or return to the prison; visitors; correctional employees; or deliverymen. The prisoners themselves can be searched, as can their visitors. Id. at 3. The employees have substantially greater opportunity to smuggle drugs than do the visitors.
(1992). The percentages are a rough guide, because one sample may reflect more than one drug, and the measures are not exact. Id. at 7. Roughly speaking, the percentages suggest about 1000 federal prisoners using drugs. The percentages are markedly lower than those reported from state prisons where roughly 10 percent have been detected using drugs in a single year. Id. at 6. Interestingly, more drug use has been detected in maximum federal security prisons than in medium or minimum federal security prisons, id. at 8, suggesting that the nature of the prison population is more important than the level of prison security
The Bureau has a strong interest in preventing the use of drugs by federal prisoners. The use of drugs can lead to disruptive behavior. The use of drugs interferes with whatever rehabilitative effect a prison may have. The use of drugs within a prison lowers the public's regard of the Bureau and makes the Bureau appear as corrupt or inefficient. The Bureau would be disgraced if a regular federal prison reached the condition reported to exist in Lorton Central Prison administered by the District of Columbia, see Robert Blecker, Haven or Hell? Inside Lorton Central Prison: Experiences of Punishment Justified, 42 Stan.L.Rev. 1149, 1191 (1990) (), or the condition of the New York state prisons as viewed by Adam Walinsky, former chairman of the New York State Commission of Investigation. Personal Responsibility in Criminal Law: Discussion,...
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