NATIONAL FEDERATION OF FEDERAL EMP. v. Carlucci

• Decision Date: 06 July 1988
• Docket Number: Civ. A. No. 86-0681,87-1797 and 87-2350.
• Parties: NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — District of Columbia

690 F. Supp. 46

NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, et al., Plaintiffs, v. Frank C. CARLUCCI, Secretary of Defense, et al., Defendants.

Civ. A. Nos. 86-0681, 87-1797 and 87-2350.

United States District Court, District of Columbia.

July 6, 1988.

Bruce P. Heppen, National Federation of Fed. Employees, Joe Goldberg, American Federation of Government Employees, Washington, D.C., for plaintiffs.

John R. Bolton, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Anne M. Gulyassy, Shalom Brilliant, Attys., U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

On March 1, 1988, this Court entered a preliminary injunction against random urinalysis drug testing of civilian employees of the United States Department of the Army. National Federation of Federal Employees v. Carlucci, 680 F.Supp. 416 (D.D.C.1988), appeal docketed, No. 88-5080 (D.C.Cir. March 16, 1988). After a hearing on March 11, 1988, the Court entered orders clarifying the preliminary injunction and denying defendants' motion for a stay pending appeal. On March 30, 1988, the Court of Appeals granted defendants' motion for a stay pending appeal. No. 88-5080 (D.C.Cir. Mar. 30, 1988) (order granting stay pending appeal).

At the hearing on March 11, 1988, defendants' counsel moved for entry of final judgment, announcing themselves satisfied with the state of the record. Plaintiffs' counsel opposed the motion on the ground that additional discovery was required. The Court denied the motion for entry of final judgment. The discovery sought by plaintiffs has now been completed, and defendants have renewed their motion for entry of final judgment.

The Court addressed the substantial and difficult issues presented by random urinalysis drug testing at length in its Memorandum Opinion of March 1, 1988. There is no need to replow that ground. Instead, the Court will review relevant developments, factual and legal, of the past four months and, incorporating its earlier Memorandum Opinion, enter a permanent injunction pursuant to Fed.R.Civ.P. 65(a)(2). The Court concludes, with the assent of counsel for both parties, that in light of the Court's analysis there remain no genuine issues of material fact for trial and judgment is appropriate under Fed.R.Civ.P. 56. This Memorandum Opinion and the Memorandum Opinion of March 1, 1988, constitute the Court's findings of fact and conclusions of law.

Factual Developments

The parties have entered into a number of stipulations of fact that are relevant to the issues presented. The stipulations, which were made a part of the record by filing with the Clerk on June 27, 1988, can be summarized as follows:

—In implementing the Army civilian drug testing program,¹ defendants did not rely upon any statistical information concerning the incidence of accident or safety violations by employees subject to testing, or the incidence of accident or safety violations caused by the use of tested-for drugs among covered employees.

—In implementing the Army civilian drug testing program, defendants did not rely upon any statistical information concerning the incidence of security violations by covered employees, or the incidence of security violations caused by use of tested-for drugs among covered employees.

—In implementing the Army civilian drug testing program, defendants did not rely upon any statistical information concerning the incidence of blackmail of covered employees, or the incidence of blackmail caused by use of tested-for drugs among covered employees.

—In designing the Army civilian drug testing program, defendants relied on no statistical information other than the Highlights from the 1983 Worldwide Survey on Nonmedical Drug and Alcohol Use.² Particularly, defendants had no information, other than anecdotal information, regarding: the number of covered employees who used tested-for drugs; the number of covered employees who used tested-for drugs while off duty; the number of covered employees who used tested-for drugs on duty or immediately before reporting for work; the number of covered employees rated less than satisfactory or disciplined because of abuse of tested-for drugs; the number of employees rated less than satisfactory or disciplined because of alcohol abuse.

—The 1983 Worldwide Survey of Nonmedical Drug and Alcohol Use did not tabulate the number of covered employees who used tested-for drugs.

—A confirmed positive urinalysis test result for marijuana cannot show that the person regularly has been using marijuana or in the future will regularly use marijuana.

—A confirmed positive urinalysis test result cannot determine the date a tested-for drug entered the body.

—A confirmed positive urinalysis test result cannot distinguish between a casual user of a drug and a chronic user of a drug.

—In implementing the Army civilian drug testing program, defendants did not have and did not rely on department-wide information concerning instances of discharge of weapons by civilian guards and police in the line of duty excluding training.

These stipulations of fact support the Court's previous finding that military's civilian drug testing initiative "is not rooted in the discovery of any particular drug problem among its civilian employees or any group of those employees." 680 F.Supp. at 420.

The Court's March 1, 1988, Memorandum Opinion reported results of Army civilian drug testing for a six-month period ending March 31, 1987, which showed 37 positive results in 5,397 urine tests, or .68 percent. 680 F.Supp. at 421. Defendants updated these figures in their Motion for Stay Pending Appeal. In the first 16 months of Army civilian drug testing, through January 31, 1988, a total of 11,233 urinalysis tests were conducted; 74 positive results were obtained, or .66 percent. Of the 74 positive results, 63 were for marijuana, 8 were for cocaine, and 3 were for both. Plaintiffs' Revised Set of Requests for Admissions No. 23 asked defendants to "Admit that the metabolites identified by urinalysis for covered drugs are not psychoactive." The Supplemental Response executed on June 6, 1988, by Dr. Donna R. Smith,³ states: "Admitted, insofar as the substances identified in the Army testing program for marijuana and cocaine are metabolites." Thus, a positive test result does not show the presence of active ingredients of marijuana and cocaine, but inactive metabolites.⁴

A number of other responses to Plaintiffs' Revised Set of Requests for Admissions, Interrogatories and Request for Production of Documents are worth noting as well. The defendants' response was executed on May 3, 1988, again by Dr. Smith.

Defendants were asked to admit that no accidents or safety violations by covered employees were caused by employee drug use or being under the influence of a tested-for drug. The defendants said they could neither admit nor deny the statement, because post-accident investigations, even where drug testing is performed, do "not necessarily reach conclusions as to whether the accident was caused by drug use as opposed to some other human error." The response to Request No. 2 continued: "No reported accident was identified in which a covered employee, subsequently-examined for `tested for' drugs, was determined to have committed some human error attributed to drug use which caused the reported accident."

Nor could defendants point to any instance of blackmail of covered employees attributed to the employee's use of a tested-for drug. See Response to Request No. 5. The only instance of a security violation attributed to the use of a tested-for drug by a covered employee was at the Seneca Army Depot in Romulus, New York, on July 4, 1985, when a security guard reported that another guard had twice used cocaine while on duty. See 680 F.Supp. at 421 n. 5.

Other May 3, 1988, admissions that are relevant include:

No. 11. Admit that Department of Defense has no statistics demonstrating a problem of on-duty drug-related impairment among covered employees.

Response: Admitted.

No. 14. Admit that urinalysis tests do not test whether the subject is under the influence of, or impaired by, a tested for drug at the time the test is administered.

Response: Admitted.

No. 15. Admit that a confirmed positive urinalysis test does not indicate that a person is presently impaired by the drug at the time of the urinalysis test.

Response: Admitted.

No. 16. Admit that a confirmed positive urinalysis test does not indicate that a person's performance of his or her duties were affected by the drug.

Response: Admitted.

No. 19. Admit that urinalysis testing cannot determine the dosage of a drug which was consumed.

Response: Admitted.

No. 24. Admit that defendants are not able to identify any studies which correlate the reported immediate effects of marijuana intoxication, such as loss of short term memory and a decrease in physical coordination, with urinalysis results which are positive for marijuana.

Response: Admitted.

No. 25. Admit that defendants are not able to identify any studies which correlate prior marijuana use, more than 24 hours before reporting to work, with on the job impairment.

Response: Admitted.

The Court notes that the government disavows the position that urinalysis drug testing can detect on-duty impairment caused by marijuana or cocaine. The government now acknowledges that urinalysis drug testing detects any recent use of tested-for drugs, off-duty as well as on-duty. Since it cannot show that off-duty use necessarily has an effect on work performance, see Response to Request No. 16, supra, the government has advanced two other arguments as justifying the suspicionless search represented by random...