National Federation of Federal Employees v. Weinberger
| Decision Date | 22 May 1987 |
| Docket Number | No. 86-5432,86-5432 |
| Citation | 818 F.2d 935 |
| Parties | 43 Empl. Prac. Dec. P 37,055, 260 U.S.App.D.C. 286, 55 USLW 2680, 2 Indiv.Empl.Rts.Cas. 145 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Appellants v. Caspar W. WEINBERGER, Secretary of Defense, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (Civil Action No. 86-00681).
Bruce P. Heppen, with whom H. Stephan Gordon and Clinton D. Wolcott, Washington, D.C., were on the brief for appellants.
Robert V. Zener, Atty., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and Leonard Schaitman, Atty., Dept. of Justice, Washington, D.C., were on the brief for appellees.
Mark D. Roth and Joe Goldberg, Washington, D.C., were on the brief for amicus curiae, American Federation of Government Employees, urging remand to the District Court.
Lois G. Williams and Elaine Kaplan, Washington, D.C., were on the brief for amicus curiae, National Treasury Employees Union, urging reversal of the District Court decision.
Before EDWARDS and R.B. GINSBURG, Circuit Judges, and FAIRCHILD, * Senior Circuit Judge United States Court of Appeals for the Seventh Circuit.
Opinion for the Court filed by Circuit Judge EDWARDS.
In this case, we review the District Court's dismissal of a suit to enjoin officials of the Department of Defense from implementing a mandatory urinalysis drug testing program for certain of their civilian employees, as well as the court's denial of the appellants' motion for a preliminary injunction, 640 F.Supp. 642. At this stage, we find it inappropriate to decide the merits of the case because the District Court did not address them, basing its decision instead on a jurisdictional theory that was advanced by the government below but which the government now concedes is utterly inconsistent with the law of this circuit.
We conclude that the District Court clearly had jurisdiction to hear the appellants' challenge and the authority to grant the equitable relief requested. We therefore reverse the trial court's dismissal, vacate its denial of the appellants' motion for a preliminary injunction, and remand the case to the District Court for further proceedings on the merits consistent with the general principles outlined in Part II.B. of this opinion.
On April 8, 1985, the Department of Defense ("DoD") issued Directive 1010.9 (the "Directive") authorizing each military department to establish a Civilian Employees Drug Abuse Testing Program. The program requires civilian employees in "critical jobs" and applicants for such positions to participate (and to sign a form agreeing to participate) in urinalysis drug testing in the following four circumstances: (1) before appointment or selection, (2) periodically thereafter "on the basis of neutral criteria," (3) when there is probable cause to believe that the employee is "under the influence of a controlled substance while on duty," 1 and (4) in the course of investigating an accident "for the purpose of accident analysis and the development of countermeasures." DoD Directive 1010.9, at 3 (Apr. 8, 1985). The Assistant Secretary of Defense (Manpower, Installations and Logistics) must concur in the decisions of the heads of the various DoD components to designate certain jobs or classes of jobs as "critical." Those jobs must fall within one or more of the following categories of jobs that are deemed "sufficiently critical to the DoD mission or protection of public safety that screening to detect the presence of drugs is warranted as a job-related requirement": (1) jobs in law enforcement, (2) positions involving national or internal DoD security in which drug abuse "could cause disruption of operations, destruction of property, threats to the safety of personnel, or the potential for unwarranted disclosure of classified information," and (3) jobs involving protection of property or persons from harm. Id. at 1-3.
The stated purposes of the program are to:
1. Assist in determining fitness for appointment or assignment to, or retention in, a critical job.
2. Identify drug abusers and notify them of the availability of appropriate counseling, referral, rehabilitation, or other medical treatment.
3. Assist in maintaining the national security and the internal security of the Department of Defense by identifying persons whose drug abuse could cause disruption of operations, destruction of property, threats to the safety of themselves and others, or the potential for unwarranted disclosure of classified information through drug-related blackmail.
On February 10, 1986, the Department of the Army promulgated regulations implementing Directive 1010.9. Army Regulation 600-85, Interim Change No. I11 (Feb. 10, 1986) ("Interim Change"). The Interim Change specifies that employees in critical jobs, as well as applicants for those jobs, must sign DA Form 5019-R, titled "Condition of Employment for Certain Civilian Positions Identified as Critical Under the Drug Abuse Testing Program." Interim Change at 2. An applicant for a critical job who fails to sign the form will not be considered for the position, and an employee currently holding a critical job who fails to sign the form "will be voluntarily or involuntarily reassigned or demoted to a noncritical job or separated from Federal employment." DA Form 5019-R. Persons who sign the form but later refuse to submit to testing "will be non-selected, reassigned, demoted, or separated according to applicable regulations." Id. The signature form also notifies the employee that "[t]o assure the validity of these tests, a staff member of the same sex will observe you while you are providing the sample," 2 and that "[m]edically prescribed drugs authorized by a physician and confirmed by appropriate evidence are excluded from such determinations." Id. The form warns that "[d]etection of drug usage through confirmed positive urinalysis test results may be cause for a determination that you have failed to meet the conditions necessary for your continued employment in the position." Id. The Interim Change is more specific as to the consequences of testing positive:
In the event of a confirmed positive urinalysis test result or refusal to submit a specimen--
(a) Prospective employees will be denied further consideration for appointment to the critical job.
(b) Current employees may be subject to adverse action proceedings under FPM chapter 752, FPM Supplement 752-1, and AR 690-700, chapter 751.
Interim Change at 2. These "adverse action proceedings" may include involuntary reassignment, demotion or removal from federal service. Civilian Drug Abuse Testing Program, Draft Memorandum at 1, reprinted in Joint Appendix ("J.A.") 33.
The plaintiffs-appellants in this case are the National Federation of Federal Employees ("NFFE"), a labor organization whose membership includes substantial numbers of civilian DoD and Department of the Army employees; NFFE Local 2058, which represents a bargaining unit of 190 civilian guards employed by the Army at the Aberdeen Proving Ground; and Charles W. Jackson, a civilian Aberdeen guard and president of Local 2058. On March 13, 1986, these plaintiffs filed suit in the District Court, alleging that the Army's civilian drug testing regulations violate: (1) the Fourth Amendment's ban on unreasonable searches and seizures; (2) the due process clause of the Fifth Amendment; (3) the employees' constitutional right of privacy; (4) 5 U.S.C. Sec. 706(2)(C) (1982), 3 insofar as the regulations conflict with 42 U.S.C. Sec. 290ee-1 (Supp. III 1985), 4 which prohibits discrimination in federal civilian employment on the basis of prior drug use; and (5) 5 U.S.C. Sec. 706(1)(A) (1982), 5 insofar as the regulations are arbitrary, capricious and an abuse of discretion. The complaint named as defendants the Secretary of Defense, the Secretary of the Army, and the Commander of the Installation Support Activity at Aberdeen, all in their official capacities. In addition to seeking a declaration from the court that their rights had been violated and that the program violated 42 U.S.C. Sec. 290ee-1, the plaintiffs requested an injunction (1) prohibiting the defendants from administering urinalysis drug tests without probable cause and a warrant, (2) prohibiting the defendants from taking any actions against employees based on positive field test results, and (3) ordering the defendants to rescind both the Directive and the Interim Change. Complaint, reprinted in J.A. 4.
On March 21, 1986, the plaintiffs moved for a preliminary injunction forbidding the defendants from implementing the challenged regulations and from distributing DA Form 5019-R. The defendants responded with a motion to deny the preliminary injunction and to dismiss the entire complaint for lack of subject matter jurisdiction, Fed.R.Civ.P. 12(b)(1), and for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). On June 23, 1986, the District Court granted the motion to dismiss solely on 12(b)(1) grounds, holding that "the plaintiffs must pursue their constitutional and statutory challenges to the drug abuse testing program within the administrative framework of the [Civil Service Reform Act] and not in this forum." National Fed'n of Fed. Employees v. Weinberger, 640 F.Supp. 642, 650 (D.D.C.1986).
The plaintiffs appeal this dismissal. Besides seeking a reversal of the District Court's jurisdictional holding, they urge this court to decide the merits of their motion for a preliminary injunction, even though the District Court did not reach the merits below.
In the proceedings below, the government's attorneys argued that the District Court lacked subject matter jurisdiction over the...
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