National Federation of Federal Emp. v. Carlucci

• Decision Date: 01 March 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. (Two Cases)
• Court: U.S. District Court — District of Columbia

680 F. Supp. 416

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. (Two Cases)

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

United States District Court, District of Columbia.

March 1, 1988.

Bruce Heppen, Nat. Federation of Federal Employees, Mark D. Roth, Joe Goldberg, American Federation of Government Employees, Washington, D.C., for plaintiffs.

Richard K. Willard, David F. Levi, Robert J. Cynkar, Richard Greenberg, Robert Chustnut, U.S. Dept. of Justice, Washington, D.C., Ken Etheridge, Office of U.S. Atty., S.D. Ga., Savannah, Ga., Major Vincent E. Reilly, Office of Judge Advocate Gen., Washington, D.C., for defendants.

MEMORANDUM OPINION

THOMAS F. HOGAN, District Judge.

Two unions seek to enjoin compulsory random urinalysis drug testing of certain civilian employees of the Department of the Army. These consolidated actions are before the Court on plaintiffs' application for an expanded preliminary injunction and defendants' motion for summary judgment. As an employer, the government has a compelling safety interest, in some instances, in maintaining a drug-free workplace; it has not demonstrated, however, that urinalysis drug testing is capable of showing whether an individual is impaired by drugs or under the influence of drugs. Under Jones v. McKenzie, 833 F.2d 335, 340-41 (D.C.Cir.1987), urinalysis drug testing lacks the necessary nexus to the employer's safety concern to satisfy the Fourth Amendment. The government's nonsafety interests in maintaining a drug-free civilian work force are not sufficiently compelling to justify the substantial intrusion of mandatory, random urinalysis. Thus, the defendants have failed to show that the Army's civilian testing program is consistent with the Fourth Amendment. Accordingly, the Court shall deny defendants' motion for summary judgment and grant plaintiffs' application for an expanded preliminary injunction.

The Court is aware that its decision cannot be squared with Mullholland v. Department of the Army, 660 F.Supp. 1565 (E.D.Va.1987) (upholding random urinalysis drug testing of civilian employees at Army air base), appeal docketed, No. 87-2145 (4th Cir. Aug. 13, 1987), and American Federation of Government Employees v. Dole, 670 F.Supp. 445 (D.D.C.1987) (upholding random urinalysis drug testing of employees of Department of Transportation), appeal docketed, No. 87-5417 (D.C.Cir. Dec. 11, 1987). On the other hand, it is in conformity with Thomson v. Weinberger, No. R-87-393 (D.Md. Feb. 27, 1987) (granting preliminary injunction to two civilian employees of Department of Army), and Railway Labor Executives' Association v. Burnley, 839 F.2d 575 (9th Cir.1988) (holding unconstitutional federal regulations mandating drug tests of railroad employees after certain train accidents). To date, courts have confronted the difficult issues posed by random drug testing without benefit of direct guidance from the Supreme Court, though the Court recently granted certiorari in National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir.1987), cert. granted, ___ U.S. ___, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988) (No. 86-1879). The Court invites defendants to appeal this decision pursuant to 28 U.S.C. § 1292(a)(1) (1982); additionally, the Court respectfully suggests that the Court of Appeals consolidate the appeal in this action with that in American Federation of Government Employees v. Dole and consider scheduling the cases for en banc hearing as presenting a question of exceptional importance. See Fed.R.App.P. 35(a)(2).

I. Procedural Background

The Army's program of random urinalysis drug testing of civilian employees has been the subject of no less than six court challenges since it was devised in 1986. Three of those suits have been consolidated into the present action.¹

The first of these consolidated cases was filed in this district under the name National Federation of Federal Employees v. Weinberger, Civil Action No. 86-0681. Plaintiffs are the National Federation of Federal Employees (NFFE), a labor organization whose membership includes civilian employees of the Department of the Army; NFFE Local 2058, which represents a bargaining unit of 190 civilian guards employed by the Army at the Aberdeen Proving Ground in Maryland; and Charles W. Jackson, a civilian Aberdeen guard and president of Local 2058. Defendants are the Secretary of Defense, the Secretary of the Army, and the commanding officer of Aberdeen Proving Ground.

This Court on June 23, 1986, denied an application for a preliminary injunction and dismissed the case, holding that it lacked subject matter jurisdiction when the union had not yet pursued its challenge before an appropriate administrative tribunal. National Federation of Federal Employees v. Weinberger, 640 F.Supp. 642 (D.D.C. 1986). The Court of Appeals for the District of Columbia Circuit reversed that decision on May 15, 1987. National Federation of Federal Employees v. Weinberger, 818 F.2d 935 (D.C.Cir.1987) (Edwards, J.). The Court of Appeals declined to decide the Fourth Amendment issues, remanding the case for findings of fact with respect to the nature and scope of the drug testing program. Id. at 942. The Court of Appeals did provide guidance on the constitutional issues, however, in the form of "general principles." Among them is the holding that compulsory urinalysis of public sector employees is a "search and seizure" within the meaning of the Fourth Amendment. Id. at 942-43. The Court of Appeals also provided a framework for determining the reasonableness of compulsory urinalysis, id., which of course will be utilized here.

The second case was filed as American Federation of Government Employees v. Weinberger in the Southern District of Georgia. Plaintiffs are the American Federation of Government Employees (AFGE), a labor organization representing civilian employees of the Department of the Army; AFGE Local 1922, which represents 2,200 civilian employees at Fort Stewart, Georgia; and William Cox, Thomas R. Daniels, Joseph Lane, and James Johnson, civilian police officers employed by the Army at Fort Stewart. Defendants are the Secretary of Defense, the Secretary of the Army, and the commander of operations at Fort Stewart. On December 2, 1986, Judge Edenfield issued a preliminary injunction against urinalysis drug testing of any civilian police officer at the Fort Stewart/Hunter Army Airfield military installation absent reasonable suspicion that the employee has engaged in drug use. American Federation of Government Employees v. Weinberger, 651 F.Supp. 726 (S.D.Ga.1986). The court held that urinalysis drug testing without individualized suspicion is unreasonable under the Fourth Amendment. Id. at 733. Plaintiffs had requested a nationwide injunction, but Judge Edenfield saw fit to limit his order geographically so as not to conflict with this Court's earlier decision in National Federation of Federal Employees v. Weinberger, 640 F.Supp. 642 (D.D.C.1986). On June 29, 1987, after the Court of Appeals for the District of Columbia Circuit ruled in National Federation of Federal Employees v. Weinberger, 818 F.2d 935 (D.C.Cir.1987), the Georgia District Court, sua sponte, ordered American Federation of Government Employees v. Weinberger transferred to this Court. The case was assigned Civil Action No. 87-1797.

The third case was filed as American Federation of Government Employees v. Weinberger in the Eastern District of California. Plaintiffs are the American Federation of Government Employees (AFGE); AFGE Local 1546, which represents 355 civilian employees at Sharpe Army Depot in Lathrop, California; and Rosemarie Alyce Duff, Dewey Lee, Monseis M. Ramos, Ronald George Spooner, and Daniel I. Straight, civilian guards and police officers at Sharpe Army Depot. Defendants are the Secretary of Defense, the Secretary of the Army, and the commander of Sharpe Army Depot. Plaintiffs sought a nationwide injunction against testing of civilian employees. The court declined to address the application for a preliminary injunction, instead granting on August 4, 1987, defendants' motion to transfer the case to this Court, where it was assigned Civil Action No. 87-2350.

The three cases were consolidated in the present action and the Court received extensive briefing, reviewed voluminous exhibits, and heard oral argument on plaintiffs' motion for an expanded preliminary injunction and defendants' motion for summary judgment on September 16, 1987.

II. Facts

A. Directive 1010.9

On April 8, 1985, the Department of Defense issued Directive 1010.9 authorizing each military department to establish a Civilian Employees Drug Abuse Testing Program. Under the Directive, civilian employees in "critical jobs" and applicants for those jobs may be required 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 substance² while on duty"; and 4) in the course of investigating an accident "for the purpose of accident analysis and the development of countermeasures."

Jobs could be designated as "critical" only if they fell in a category 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 the national security or the internal security of the Department of Defense in which drug abuse could cause disruption of operations, destruction of property, threats to the safety of personnel, or the potential for...