Connelly v. Newman

• Decision Date: 15 March 1990
• Docket Number: No. C-88-5085 DLJ.,C-88-5085 DLJ.
• Citation: 753 F. Supp. 293
• Court: U.S. District Court — Northern District of California
• Parties: Robert V. CONNELLY, et al., Plaintiffs, v. Constance NEWMAN, et al., Defendants.

753 F. Supp. 293

Robert V. CONNELLY, et al., Plaintiffs, v. Constance NEWMAN, et al., Defendants.

No. C-88-5085 DLJ.

United States District Court, N.D. California.

March 15, 1990.

Laurence Pulgram and Richard Marcantonio, with the law firm of Howard, Rice, Nemerovski, Canady, Robertson & Falk, San Francisco, Cal., for plaintiffs.

Mary Magee, with the U.S. Dept. of Justice, Washington, D.C., for defendants.

ORDER

JENSEN, District Judge.

On February 28, 1990, this Court heard plaintiffs' and defendants' cross-motions for summary judgment. Laurence Pulgram and Richard Marcantonio appeared for plaintiffs. Mary Magee appeared for defendants. For all the following reasons, the Court grants summary judgment to plaintiffs on the issue of post-accident testing, and permanently enjoins such testing by defendants. In addition, the Court grants partial summary judgment to defendant on the issue of reasonable suspicion testing. Defendants' motion for summary judgment as to post-accident testing, and plaintiffs' motion for summary judgment as to reasonable suspicion testing, are both denied.

I. BACKGROUND FACTS

This is an action brought by certain government employees against the United States Office of Personnel Management ("OPM") challenging a recently implemented drug-testing plan. Plaintiffs contend that the OPM drug-testing plan violates the employees' rights under the Fourth Amendment by subjecting employees to unlawful searches and seizures.

As the successor agency to the Civil Service Commission, the Office of Personnel Management is responsible for developing, implementing and overseeing federal personnel policies. OPM implemented its Drug-Free Workplace Plan ("the Plan") in September 1988, in response to Executive Order No. 12,564. 51 Fed.Reg. 32,889 (1986). This Order charges each executive agency to develop drug-testing programs that include post-accident and reasonable suspicion testing. The OPM Plan tests urine samples for the presence of five drugs: marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP).

Plaintiff class consists of some 5800 OPM employees, all of whom are potentially subject to post-accident and reasonable suspicion drug testing under the OPM Plan. Procedures for collection and testing of urine samples are governed by the Department of Health and Human Services Guidelines ("HHS Guidelines"), 53 Fed. Reg. 11970 (1988), as described previously by this Court. See Order of June 15, 1989 at 3-4.

In its order of June 15, 1989, the Court addressed three aspects of the OPM Plan: (1) random testing of all OPM employees at the investigator level or higher; (2) post-accident or unsafe practices testing whenever an injury results from an on-duty accident that requires hospitalization or causes property damage over $1000; and (3) reasonable suspicion testing. The Court preliminarily enjoined the random and post-accident drug testing portions of the OPM Plan, while allowing reasonable suspicion testing under the Plan to proceed before trial.

The parties finalized the Court's injunction on random testing by stipulation. Plaintiffs now move for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, regarding the two types of drug testing still at issue.

II. APPLICABLE LEGAL STANDARD

In considering the constitutionality of drug-testing programs for government employees, the Court does not write on a blank slate. Rather, the Court is guided by two recent Supreme Court decisions, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

Drug testing by the federal government of its employees is a search under the Fourth Amendment and therefore must meet the requirement of reasonableness. Skinner, 109 S.Ct. at 1413. Although there is a reduced expectation of privacy for federal employees at the workplace, these individuals do not forfeit their Fourth Amendment rights "merely because they work for the government instead of a private employer." O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 1498, 94 L.Ed.2d 714 (1987).

The warrant requirement generally applicable to searches and seizures under the Fourth Amendment does not necessarily apply to drug testing of federal employees. Skinner and Von Raab suggest that a different legal standard applies to searches performed in non-law enforcement contexts. Because drug testing of federal employees represents one such context, courts must consider whether "special governmental needs" beyond normal law enforcement justify departure from the usual warrant and probable-cause requirements. Von Raab, 109 S.Ct. at 1390-91; Skinner, 109 S.Ct. at 1414. If such special needs exist, courts consider all of the circumstances of the drug testing program at issue, balancing the individual's privacy expectations against the government's interests. Id. In evaluating whether a particular drug testing program is reasonable under the Fourth Amendment, a requirement of individualized suspicion, although relevant, does not present a constitutional floor below which a search must be presumed unreasonable. Skinner, 109 S.Ct. at 1417. See also Von Raab, 109 S.Ct. at 1392.

III. POST-ACCIDENT TESTING

The OPM Plan authorizes testing of employees involved in accidents or unsafe practices which result in (1) death or personal injury requiring immediate hospitalization, or (2) property damage in excess of $1,000. The Plan does not require individualized suspicion of drug use before subjecting an employee to post-accident testing.

OPM's interest in determining the cause of accidents and otherwise ensuring the safety of its employees constitutes a "special need" which justifies conducting postaccident testing in the absence of a warrant or probable cause. See Von Raab, 109 S.Ct. at 1390-91; Skinner, 109 S.Ct. at 1414. This Court must therefore balance OPM's interest in post-accident testing and the employees' reasonable expectation of privacy. In Skinner, the Supreme Court applied this balancing test so as to uphold the constitutionality of suspicionless post-accident drug testing in the railroad industry. The reasonable expectation of privacy of OPM employees is comparable to that of railroad employees who work in an industry subject to heavy government regulation. See id. at 1418. Consequently, the Court focuses its analysis on the other side of the equation, that of the government's interest in post-accident testing of OPM employees.

The OPM employees subject to the urinalysis program at issue here are primarily civil service office workers. They do not normally perform hazardous duties, although many OPM employees drive government vehicles in the course of their employment. The post-accident testing portion of the OPM Plan thus pertains mostly to automobile accidents. OPM contends that its employees have been involved in 87 traffic accidents in the past five years, at an annual cost to OPM of approximately $25,000. The cited evidence establishes that drug use did not play a role in any of these accidents.

Based on these facts, the Court finds that the government has presented only a minimal interest in post-accident testing of OPM employees. In Skinner, the problem of drug and alcohol-related train accidents presented a real and present danger. Over an eleven year span, drug and alcohol abuse contributed to 21 major train accidents, causing 25 fatalities and an estimated $19 million in property damage. Id. at 1407-08. Moreover, a nexus existed between toxicological testing and the protection of the public, based on the Supreme Court's finding that railroad employees "discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Id. at 1419. The regulations in Skinner also set a relatively high threshold for post-accident testing, requiring injury or damage to railway property of at least $50,000. Given these circumstances, the Supreme Court held that the government interest in testing railroad employees was compelling. Id.

The interests supporting OPM's drug testing plan are weak in comparison to those in Skinner. In contrast to the railroad industry, the record before the Court suggests no history of drug abuse among OPM employees. Although not dispositive, the absence of a historical drug problem is a factor that diminishes the government's interest in subjecting OPM employees to drug testing. OPM also seeks to subject to urinalysis all employees involved in automobile accidents that result in $1000 of total property damage. The OPM Plan thus applies more broadly and is more intrusive of its employees' expectations of privacy than was true in Skinner, because the $1000 threshold for testing is so much lower.

The government argues that the Fourth Amendment merely requires the occurrence of an accident to justify drug testing of OPM employees. Under this standard, the government could subject an OPM employee to drug testing based solely on a minor automobile collision, even if that collision occurred while the employee's vehicle was parked in the OPM parking lot. The Court rejects this view. Government employees are not defenseless in the face of drug testing programs. Instead, the Fourth Amendment requires of post-accident testing that, at a minimum, accidents meet some threshold level of severity (measured in terms of actual personal injury or property damage suffered, or the level of harm at risk) and that the testing covers only employees that may have caused the accident.

The OPM Plan presently at issue requires only $1000 in property damage and does not contain a causation requirement. In these respects the Plan is unlike post-accident testing programs enacted by other government agencies that have survived judicial scrutiny. For example, under the Department of Agriculture's post-accident testing program,...