National Federation of Federal Employees v. Cheney
| Citation | 884 F.2d 603 |
| Decision Date | 29 August 1989 |
| Docket Number | AFL-CIO,Nos. 88-5080,s. 88-5080 |
| Parties | , 4 Indiv.Empl.Rts.Cas. 1164, 1989 O.S.H.D. (CCH) P 28,657 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,, et al. v. Richard B. CHENEY, Secretary of Defense, et al., Appellants. to 88-5082, 88-5245, 88-5246. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Appeals from the United States District Court for the District of Columbia (Civil Action Nos. 86-00681, 87-01797, 87-02350, 86-00681, 87-01797 and 87-02350).
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 appellants.
Joe Goldberg, with whom Mark D. Roth, Washington, D.C., was on the brief, for appellees, American Federation of Government Employees, et al.
H. Stephan Gordon and Jeffrey Sumberg were on the brief, for appellees, Nat. Federation of Federal Employees. Bruce P. Heppen and Suzanne L. Kalfus, Washington, D.C., also entered appearances for Nat. Federation of Federal Employees.
Before WALD, Chief Judge, and MIKVA and SENTELLE, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
In this appeal we are called upon to assess the constitutionality of the United States Department of the Army's practice of subjecting certain of its civilian employees to compulsory, random toxicological urine testing. Implemented in 1986, the testing program requires more than 9,000 of the Army's 450,000 civilian employees be tested in any of four circumstances, including "[pe]riodically ... on the basis of random criteria." Appellees, National Federation of Federal Employees and American Federation of Government Employees--union representatives of the covered employees--filed actions to enjoin the random aspect of the program. The District Court concluded that suspicionless urinalysis testing constituted an unreasonable search in violation of the Fourth Amendment, and accordingly entered a nationwide preliminary injunction against such testing. National Fed'n of Fed. Employees v. Carlucci, 680 F.Supp. 416 (D.D.C.1988). 1 After this Court ordered the preliminary injunction stayed pending appeal, National Fed'n of Fed. Employees v. Carlucci, No. 88-5080 (D.C.Cir. Mar. 30, 1988), the District Court permanently enjoined the Army from implementing the random aspect of its testing program. National Fed'n of Fed. Employees v. Carlucci, 690 F.Supp. 46 (D.D.C.1988). The District Court stayed the permanent injunction pending resolution of this appeal. Id. at 55. We affirm in part, vacate in part, and remand for further proceedings.
In 1971, Congress directed the Secretary of Defense to "prescribe and implement procedures ... [to] identify, treat, and rehabilitate members of the Armed Forces who are drug or alcohol dependent persons." PUB.L. NO. 92-129, tit. V, Sec. 501(a), 85 Stat. 348, 361 (1971). Pursuant to this command, the Army initiated mandatory toxicological testing of its military forces, a program that by 1982 resulted in comprehensive military testing. See Joint Appendix ("J.A.") at 237. On April 8, 1985, the Department of Defense issued Directive 1010.9, authorizing urinalysis testing of civilians occupying or applying for "critical jobs," 2 and requiring each "DoD Component" to submit proposals for critical job designations. The Directive provided that covered civilians "may be required to participate in urinalysis testing" in four circumstances: (1) before appointment or selection; (2) "[p]eriodically ... on the basis of neutral criteria;" (3) upon probable cause to believe on-duty drug impairment; and (4) as part of a "mishap or safety investigation." Directive 1010.9 para. F.2.a. (1)-(4).
In order to implement the Directive, in 1986 the Army promulgated Army Regulation 600-85, Interim Change I11 ("AR 600- 85"). AR 600-85 provides for testing under the same four circumstances listed in the Department's Directive. 3 Testing was authorized for any of fourteen classes of critical jobs, categorized as follows: aviation, guard and police, "personnel reliability program," and the Alcohol and Drug Abuse Prevention and Control Program. Id. Table 5-1. 4 A brief description of classes of critical jobs accompanied the Regulation.
After Directive 1010.9 and Army Regulation 600-85 were issued, the Department of Health and Human Services, in accordance with Executive Order 12,564, "Drug-Free Federal Workplace," 3 C.F.R. Sec. 224 (1987), promulgated regulations to govern federal drug testing. See "Mandatory Guidelines for Federal Workplace Drug Testing Programs," 53 Fed.Reg. 11,970 (April 11, 1988) ("HHS Regulations" or "HHS Reg."). Congress ordered the Army to comply with the HHS Regulations. See Supplemental Appropriation Act of 1987, PUB. L. NO. 100-71, Sec. 503, 101 Stat. 391, 468-71 (codified at 5 U.S.C. Sec. 7301 note (Supp. V 1987)). The parties agree that the constitutionality of the Army's testing program is to be judged with reference to the procedures as they currently exist, rather than as originally announced. See Brief for Appellants at 6 n. 1; Brief for Appellees at 8 & n. 3; see generally California Bankers Ass'n v. Shultz, 416 U.S. 21, 53, 94 S.Ct. 1494, 1513, 39 L.Ed.2d 812 (1974).
The HHS Regulations provide that, upon arriving at an assigned time and collection site, the subject employee is to prepare for the test by removing unnecessary outer garments and washing his hands. Thereafter the subject employee is to "remain in the presence of the collection site person." HHS Reg. Sec. 2.2(f)(6), 53 Fed.Reg. at 11,980. The sample is to be provided "in the privacy of a stall or otherwise partitioned area," id. Sec. 2.2(f)(7), 53 Fed.Reg. at 11,981, "unless there is reason to believe that a particular individual may alter or substitute the specimen to be provided," id. Sec. 2.2(e), 53 Fed.Reg. at 11,980.
The sample is then sent to an HHS-approved laboratory, under procedures ensuring a secure chain of custody, id. Sec. 2.2(f)(17)-(26), 53 Fed.Reg. at 11,981, where it is tested for proscribed drugs. 5 The sample is initially subject to a radioimmunoassay (RIA) test, and if the results of that test exceed certain cut-off levels, to a gas chromatography/mass spectrometry (GC/MS) test. See J.A. at 242. A sample is considered positive only if it is positive on both tests. HHS Reg. Sec. 2.4(g)(2), 53 Fed.Reg. at 11,983.
Any applicant who tests positive for proscribed drugs "will be denied further consideration" for employment, AR 600-85 para. 5-14c (3)(a), and employees who test positive "may be subject to adverse action," identified as reassignment or demotion to a noncritical job, or "if there is no job available for which the employee is qualified, separat[ion] from the service." Id. para. 5-14c (1)(b). Among the potential penalties for refusing to submit to a test or attempting to adulterate the test sample is "[r]emov[al] from Federal service." Id. para. 5-14c (4)(b) & c (5). The Regulation provides that any employee testing positive "shall, if eligible," be offered counseling or treatment. Id. para. 5-14e (4). Collateral use of the test results is proscribed by regulation and statute alike. See HHS Reg. Sec. 2.8, 53 Fed.Reg. at 11,986; Sec. 503(e), PUB. L. NO. 100-71, 101 Stat. 471; cf. AR 600-85 para. 5- 14e(5).
Appellees filed actions challenging the legality of the random aspect of the Army testing program. 6 The Army argued that compulsory testing was justified by compelling governmental interests in the safety, security, and integrity of its workforce. The District Court, relying on our since vacated decision in Jones v. McKenzie, 833 F.2d 335, 340-41 (D.C.Cir.1987), vacated sub nom. Jenkins v. Jones, --- U.S. ----, 109 S.Ct. 1633, 104 L.Ed.2d 149 (1989), replaced, 878 F.2d 1476 (D.C.Cir.1989), ruled only on appellees' Fourth Amendment challenge, concluding that mandatory, random urinalysis testing constituted an unreasonable search in violation of the Fourth Amendment. Although it conceded the Army's "compelling safety interest ... in maintaining a drug-free workplace," the Court reasoned that because the Army failed to show that drug testing measures on-the-job impairment, "urinalysis drug testing lacks the necessary nexus to the employer's safety concern to satisfy the Fourth Amendment." Carlucci, 680 F.Supp. at 418 (emphasis in original). The District Court dismissed the Army's nonsafety interests as insufficiently compelling to warrant "the substantial intrusion of mandatory, random urinalysis." Id. Accordingly, the Court enjoined such testing "unless the test is based upon a reasonable, articulable, and individualized suspicion that a specific employee is under the influence of drugs or alcohol while on duty." Id. at 436. On July 6, 1988, the District Court made final its injunction against such testing.
In decisions issued during the pendency of this appeal, the Supreme Court rejected Fourth Amendment challenges to two federally mandated drug testing programs. In the first, National Treasury Employees Union v. Von Raab, --- U.S. ----, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), the Court sustained as reasonable a United States Customs Service testing program that required pre-ascension testing of employees seeking positions...
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