American Federation of Government Employees, AFL-CIO, Local 2391, (AFGE) v. Martin
| Decision Date | 07 July 1992 |
| Docket Number | No. 91-15829,AFL-CI,LOCAL,91-15829 |
| Citation | 969 F.2d 788 |
| Parties | 122 Lab.Cas. P 10,257, 7 IER Cases 970, 1992 O.S.H.D. (CCH) P 29,748 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,2391, (AFGE); American Federation National Council of Field Labor Locals; Anne F. Johnson; Jaime A. Alvarez, Plaintiffs-Appellees, v. Lynn A. MARTIN, Secretary of the United States Department of Labor; David J. Park; Jesus Ramos, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
E. Roy Hawkens, U.S. Dept. of Justice, Washington, D.C., for defendants-appellants.
Joe Goldberg, American Federation of Government Employees, Washington, D.C., for plaintiffs-appellees.
Appeal from the United States District Court for the Northern District of California.
Before: BROWNING, PREGERSON, and RYMER, Circuit Judges.
The United States Department of Labor ("DOL") appeals the district court's order granting partial summary judgment for the American Federation of Government Employees, its subordinate labor unions, and two individual DOL employees (collectively "AFGE"). AFGE filed suit in the district court seeking to enjoin the DOL from conducting random drug testing, reasonable suspicion drug testing, and accident or unsafe practice drug testing. The suit also sought a declaration that the DOL's employee drug testing plan on its face violates the Fourth Amendment. The district court approved the random testing provision of the plan without modification. It also approved the reasonable suspicion testing and accident or unsafe practice testing provisions of the plan, but with modifications. The DOL appeals only from the district court's modification of the reasonable suspicion testing provision of the plan. The DOL contends that the district court erred by holding that the Fourth Amendment bars drug testing of DOL employees in public health and safety-sensitive or security-sensitive positions based on reasonable suspicion of off-duty drug use. We agree.
Executive Order 12564 ("Order"), issued September 15, 1986, prohibited illegal drug use by federal employees both on and off duty. Exec. Order No. 12,564, 3 C.F.R. 224 establish a program to test for the use of illegal drugs by employees in sensitive positions. The extent to which such employees are tested and the criteria for such testing shall be determined by the head of each agency, based upon the nature of the agency's mission and its employees' duties, the efficient use of agency resources, and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.
(1987), reprinted in 5 U.S.C. § 7301 note at 909-11 (1988). The Order directed all executive agencies to "develop a plan for achieving the objective of a drug-free workplace with due consideration of the rights of the government, the employee, and the general public." Id. at 909. The Order also provided that each executive agency must
Id. at 910. On April 27, 1988, the DOL developed a Drug-Free Workplace Plan ("Plan") pursuant to this Order.
The Plan distinguishes between DOL employment positions determined to be public health and safety- or national security-sensitive, referred to as "testing designated positions" ("TDPs"), and all other DOL employment positions. Depending on the employee's position, the Plan provides that the employee may be subject to random drug testing, reasonable suspicion drug testing, and/or accident or unsafe practice drug testing.
The only form of testing at issue in this appeal is reasonable suspicion testing of DOL employees occupying TDPs. Under the Plan, a urinalysis drug test can be administered to a TDP employee based on a reasonable suspicion of on-duty or off-duty drug use. 1 The DOL has identified five categories of employment positions as TDPs with job functions that directly relate to public health and safety or national security: (1) Mine Safety and Health Inspectors responsible for inspecting mining operations and enforcing mine safety and health standards; (2) Compliance Safety and Health Officers responsible for ensuring industry compliance with occupational safety standards and practices; (3) motor vehicle operators; (4) nurses; and (5) positions with top secret national security clearances.
The AFGE, its subordinate labor unions, and two individual DOL employees initially filed an action seeking to enjoin DOL from conducting random drug testing under its Plan. The district court denied AFGE's motion for a preliminary injunction. The AFGE was then permitted to file an amended complaint in which it sought to enjoin the DOL from conducting random testing, reasonable suspicion testing, and accident or unsafe practice testing, and to obtain a declaration that these provisions violate the Fourth Amendment.
On cross-motions for summary judgment, the district court approved the random testing provision of the Plan in its entirety. The court approved the reasonable suspicion testing provision of the Plan in part, finding that the Fourth Amendment permits such testing only when it is based on a reasonable suspicion of on-duty, and not off-duty, illegal drug use or impairment. The court also prohibited direct observation of the provision of a urine sample while conducting reasonable suspicion testing. Finally, the court approved the accident On appeal, the DOL challenges the district court's decision only insofar as it prohibits drug testing of TDP employees based on a reasonable suspicion of off-duty drug use or impairment. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.
or unsafe practice testing provision of the Plan with certain modifications.
We review de novo the constitutionality of the reasonable suspicion provision of the DOL drug testing plan as it relates to off-duty drug use or impairment of TDP employees. See AFGE Local 1533 v. Cheney, 944 F.2d 503, 505 (9th Cir.1991). Because the AFGE has challenged this provision on its face and not as applied, we need only determine whether the DOL may ever conduct drug tests of TDP employees based on a reasonable suspicion of off-duty drug use without offending the Fourth Amendment. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 633 n. 10, 109 S.Ct. 1402, 1421 n. 10, 103 L.Ed.2d 639 (1989); International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1298 (9th Cir.1991). " 'The challenge[ ] must establish that no set of circumstances exists under which the [provision] would be valid.' " International Bhd. of Teamsters, 932 F.2d at 1298 (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)).
The DOL argues that because the duties of TDP employees implicate significant public health and safety or national security concerns, there is a substantial governmental interest in detecting and deterring any illegal drug use by these employees. The district court cited to National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990), to support its ruling that, regardless of the nature of the positions involved, all reasonable suspicion drug testing must be based on suspicion of on-duty and not off-duty drug use or impairment. It appears, however, that the district court misinterpreted Yeutter's holding. In Yeutter the D.C. Circuit addressed the constitutional validity of the reasonable suspicion drug testing provision of a United States Department of Agriculture ("USDA") drug testing plan. The USDA plan permitted drug testing of all USDA employees based on a reasonable suspicion of on- or off-duty drug use or impairment. The court found that employees who did not hold safety- or security-sensitive positions could only be tested under the provision based on a reasonable suspicion of on-duty drug use or impairment. Id. at 974. The court left open the question whether employees holding safety- and security-sensitive positions could be tested based on a reasonable suspicion of off-duty drug use or impairment. Thus, Yeutter does not support the district court's ruling.
We note at the outset that urinalysis drug tests necessarily invade reasonable expectations of privacy rendering them searches within the meaning of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685 (1989); Railway Labor, 489 U.S. at 617, 109 S.Ct. at 1412; International Bhd. of Teamsters, 932 F.2d at 1299. "[T]he Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer...." Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390. The warrant and probable cause requirements of the Fourth Amendment, however, do not necessarily apply in the drug testing context. International Bhd. of Teamsters, 932 F.2d at 1299. Rather, whether the government may validly require its employees to submit to drug testing is determined " 'by balancing its intrusion on the [employees'] Fourth Amendment interests against its promotion of legitimate governmental interests.' " Railway Labor, 489 U.S. at 619, 109 S.Ct. at 1414 (quoting Delaware v. Prouse, 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979)). "When the balance of [these] interests precludes insistence on a showing of probable cause, ... 'some quantum of [reasonable or] individualized suspicion' " generally must be shown before a search may be deemed reasonable under the Fourth Amendment. Id. 489 U.S. at 624, 109 S.Ct. at 1416. Where the government has a legitimate public health and safety or national security interest in confirming whether an employee is using illegal drugs on- or off-duty, the existence of reasonable suspicion weighs in favor of finding that a resulting search is reasonable. See id.; O'Connor v. Ortega, 480 U.S. 709, 726, 107 S.Ct. 1492, 1502, 94 L.Ed.2d 714 (1987) (...
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