Hartness v. Bush

• Decision Date: 23 May 1989
• Docket Number: Civ. A. No. 89-044-LFO,89-0950-LFO and 89-1152-LFO.
• Parties: Norman HARTNESS, et al., Plaintiffs, v. George BUSH, et al., Defendants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Richard AUSTIN, Administrator, General Services Administration, Defendant. The Hon. Vincent A. LaBELLA, et al., Plaintiffs, v. Richard AUSTIN, Administrator, General Services Administration, et al., Defendants.
• Court: U.S. District Court — District of Columbia

712 F. Supp. 986

Norman HARTNESS, et al., Plaintiffs, v. George BUSH, et al., Defendants.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, et al., Plaintiffs, v. Richard AUSTIN, Administrator, General Services Administration, Defendant.

The Hon. Vincent A. LaBELLA, et al., Plaintiffs, v. Richard AUSTIN, Administrator, General Services Administration, et al., Defendants.

Civ. A. Nos. 89-044-LFO, 89-0950-LFO and 89-1152-LFO.

United States District Court, District of Columbia.

May 19, 1989.

On Motion to Modify May 23, 1989.

Jeffrey F. Liss, Benjamin S. Boyd, and Piper & Marbury, Washington, D.C., for Norman Hartness, et al. (Arthur B. Spitzer and Elizabeth Symonds, ACLU, Washington, D.C., of counsel).

Richard Hertling, Atty., Dept. of Justice Federal Programs Branch, Washington, D.C., for George Bush, et al.

Anne Wagner, AFGE, Washington, D.C., for American Federation of Government Employees, AFL-CIO, et al.

Richard G. Lepley, Atty., Dept. of Justice, Washington, D.C., for Richard Austin.

Nicholas T. Christakos, Sheila J. Carpenter, and Sutherland, Asbill & Brennan, Washington, D.C., for Vincent A. LaBella, et al. (Arthur B. Spitzer and Elizabeth Symonds, ACLU, Washington, D.C., of counsel).

MEMORANDUM

OBERDORFER, District Judge.

I.

Various civilian employees of the federal government and a labor union have sued to enjoin government testing of employees' urine now scheduled to begin on or after May 24, 1989. Three cases brought by or on behalf of employees in the Executive Office of the President ("EOP"), Hartness v. Bush, and in the General Services Administration ("GSA"), AFGE v. Austin and LaBella v. Austin, are now before the Court on motions for preliminary injunction pending a decision on the merits.

The defendants in these cases adopted the plans at issue in obedience to Executive Order No. 12,564 issued September 15, 1986. The preamble to the Order noted the serious adverse effects of drug use upon the national work force, the resulting loss of productivity, the federal government's concern for the well-being of its employees, its concern for successful accomplishment of agency missions, and the need to maintain employee productivity. In addition, the Order stated that:

The federal government, as the largest employer in the Nation, can and should show the way towards achieving drug-free workplaces through a program designed to afford drug users a helping hand and, at the same time, demonstrating to drug users and potential drug users that drugs will not be tolerated in the Federal workplace.¹

There was also reference to public safety, effective law enforcement, crime and violence generated by commerce in illegal drugs, and the deleterious effect of drugs on federal employees' reliability and good judgment that is inconsistent with access to sensitive information and creates the possibility of irresponsible action posing a serious risk to national security. For these reasons, the Executive Order barred drug use by federal employees on duty and off duty and charged each agency with responsibility for developing 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."²

More specifically, for purposes of the pending motion, the Executive Order directed each agency to "establish a program to test for the use of illegal drugs by employees in sensitive positions."³ In addition, it authorized the testing of an employee "when there is a reasonable suspicion that the employee uses illegal drugs."⁴

Pursuant to that Order, the EOP plan authorizes random testing of all employees in designated "sensitive positions," including personnel at the Office of Management and Budget, the Office of the United States Trade Representative, and the Office of Administration. With respect to the 30 named plaintiffs in Hartness v. Bush, none of these EOP personnel has a White House pass.⁵ Furthermore, there is no indication in the record that any of the named plaintiffs would have unguarded access to the President or the Vice President. All of them are subjected to thorough security checks by the Federal Bureau of Investigation before they are appointed. All involved in this case generally operate under close supervision in a conventional government office environment.

The record in Hartness v. Bush reveals that there were reported to be five drug abuse problems involving an EOP employee in the last 40 months.⁶ There is no evidence in the record that there has ever been a case of bribery, any compromise of classified documents or other national security information, or any other serious misbehavior by any EOP employee. Nor is there any evidence of any accident, serious or otherwise, for which an EOP employee has been held responsible. Affidavits filed by a sampling of 8 EOP plaintiffs indicate that none has a security clearance that would enable him or her access to information related to sensitive military secrets or plans, or strategic national security issues.⁷

The GSA plan authorizes random testing of employees in designated sensitive and safety-related positions. The plan defines employees in sensitive positions to include positions defined as sensitive under Chapter 731 of the Federal Personnel Manual, an employee granted or who may be granted access to classified information, presidential appointees, law enforcement officers, and "other positions that involve law enforcement, national security, the protection of life and property, public health or safety, or other functions requiring a high degree of trust and confidence."⁸ However, counsel for defendants in the AFGE v. Austin case represented at oral argument on the pending motion that GSA intends to defer testing of certain designated positions, including elevator mechanics, automotive workers, and fire protection engineers. GSA employees in non-deferred testing designated positions are Physical Security Specialists, Federal Protective Officers, Police Officers, Detectives, Protection Specialists, Security Guards, Training Instructors, Communication Equipment Operators, Firefighters, and Motor Vehicle Operators. At oral argument counsel for GSA conceded that although the police officers designated for urine testing carry weapons, they are seldom used, and there is no record of their being misused. Moreover, police are routinely inspected and instructed by supervisors at daily roll calls.

Testing designated positions challenged by the three named plaintiffs in the LaBella v. Austin case are Presidential Appointees/senior level managerial positions/Administrative Judges, Criminal Investigators, Personnel Security Specialists and Security Specialists, Employee and Labor Relations Specialists, Civil Engineer/Construction Representative, National Security Emergency Preparedness Staff/Information Security Division, and Office of Information Security Oversight.⁹

With respect to drug testing at the GSA, according to a GSA Order issued September 9, 1988, "the overwhelming majority of GSA employees have never had trouble with illegal drugs."¹⁰ There is no evidence in the record that GSA made any systematic study of drug use or its consequences. GSA has approximately 20,000 employees. According to a declaration by the official responsible for implementation of the GSA drug control plan, while the absence of systematic urine testing has limited the information about employee drug abuse, he was able to list only twenty-two cases over a five-year period in which GSA has taken disciplinary and performance based actions relating to drug use.¹¹ In only three of these cases had the employee been arrested or convicted of a drug related crime. There is no indication that GSA has brought any of the twenty-two cases or any other case of drug abuse by a GSA employee to the attention of law enforcement officials. Furthermore, there was no report of a drug related accident or that accidents were a serious GSA employee problem. Nor was there any reported case of drug related bribery. Moreover, there is no evidence in the record that GSA's mission is in any way connected to drug interdiction, or that anyone at GSA is personally involved in the interdiction of illegal drugs.

The GSA plan also authorizes reasonable suspicion testing of any employee suspected of using illegal drugs on duty or off duty. The plan identifies a non-inclusive list of factors upon which reasonable suspicion of illegal drug use may be based: (1) observable phenomena, such as direct observation of drug use or possession and/or the physical symptoms of being under the influence of a drug; (2) a pattern of abnormal conduct or erratic behavior; (3) arrest or conviction for a drug-related offense, or the identification of an employee as the focus of a criminal investigation into illegal drug possession, use, or trafficking; (4) information provided either by reliable and credible sources or independently corroborated; or (5) newly discovered evidence that the employee has tampered with a previous drug test.¹²

Initial responsibility for determining reasonable suspicion rests with supervisors, who are charged with gathering all information, facts and circumstances leading to and supporting their suspicion, and who must then obtain the concurrence of the next level supervisor in making the finding that a reasonable suspicion of illegal drug use exists. An appropriate supervisor will then promptly prepare a written record detailing the circumstances that formed the basis for the determination of reasonable suspicion, including the dates and times of reported drug related incidents, reliable sources of information, the rationale leading to the test, findings of the test, and the action taken. The GSA plan also provides that supervisors will be trained to address illegal drug use by employees, to recognize facts that give rise to a reasonable suspicion, and to document facts and circumstances to support a...