Plane v. US

• Decision Date: 31 October 1990
• Docket Number: No. 1:90-CV-300.,1:90-CV-300.
• Citation: 750 F. Supp. 1358
• Parties: James L. PLANE, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, Local 1626 American Federation of Government Employees, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, and Al Digennaro, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, Plaintiffs, v. UNITED STATES of America, Defense Logistics Agency, Defense Logistics Service Center, Richard Cheney, Secretary to the Department of Defense, and George M. Koburnus, Colonel, United States Air Force Commanding Officer, Defendants.
• Court: U.S. District Court — Western District of Michigan

750 F. Supp. 1358

James L. PLANE, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, Local 1626 American Federation of Government Employees, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, and Al Digennaro, and All Other Similarly Situated Employees of the Defense Logistics Agency Located at Battle Creek, MI, Plaintiffs, v. UNITED STATES of America, Defense Logistics Agency, Defense Logistics Service Center, Richard Cheney, Secretary to the Department of Defense, and George M. Koburnus, Colonel, United States Air Force Commanding Officer, Defendants.

No. 1:90-CV-300.

United States District Court, W.D. Michigan.

October 31, 1990.

COPYRIGHT MATERIAL OMITTED

Steven Z. Cohen, Cohen & Ellias, Birmingham, Mich., Joe Goldberg, Asst. Gen. Counsel, American Federation of Government Employees, AFL-CIO, General Counsels Office, Washington, D.C., for plaintiffs.

Agnes M. Kempker-Cloyd, U.S. Asst. Atty., John A. Smietanka, U.S. Atty., Grand Rapids, Mich., Theodore R. Pixley, Jr., Defense Reutilization & Marketing Service, Battle Creek, Mich., Stuart M. Gerson, Mary E. Goetten, Mary E. Magee, U.S. Dept. of Justice, Civil Division, Federal

Programs Branch, Washington, D.C., for defendants.

OPINION

ENSLEN, District Judge.

This matter is before the Court on plaintiffs' motion for a preliminary injunction. Plaintiffs, the American Federation of Government Employees, AFL-CIO, ("AFGE") and its affiliates, on behalf of all AFGE bargaining unit civilian employees in the Defense Logistics Agency ("DLA"), seek an agency-wide injunction of random urinalysis drug testing. They also seek to enjoin implementation of the DLA "reasonable suspicion" and "post accident" testing programs. Plaintiffs' motion, accompanied by an over-length brief of 42 pages, was filed in this Court on October 22, 1990, one week before the testing was scheduled to begin. On an expedited briefing schedule, defendants filed their response brief, also lengthy, at noon on October 25. The Court held a hearing on the motion on the last working day available before the scheduled testing, Friday, October 26. Plaintiffs offered the testimony of two witnesses, Mr. Thomas Dmoch, an environmental protection specialist with the DLA, and Mr. Alfred Digennaro, President of the Union. At that hearing, defendants offered, and the Court ordered, that testing not begin before November 8, 1990, in order to allow the Court time in which to make a reasoned response to plaintiffs' motion.

BACKGROUND

The DLA is the component of the Department of Defense responsible for providing services and supplies used by all branches of the military. DLA employees acquire and furnish repair parts, food, fuel, medical supplies and clothing for American soldiers. It also administers contracts for such diverse items as missiles, explosives, textiles, electronic equipment, aircraft and tanks.

Pursuant to Executive Order 12564,¹ and in light of public safety and national security concerns, the DLA promulgated its Drug-Free Workplace Plan ("DLA Plan"). The DLA Plan was developed in accordance with section 503 of the Supplemental Appropriations Act of 1987, 5 U.S.C. § 7301 note, and was certified to Congress on April 27, 1988.

The DLA Plan provides for random drug testing only of employees in certain "sensitive positions" (Testing Designated Position: "TDPs"). The DLA Plan originally identified five factors to consider in identifying TDPs. The purpose was to limit TDPs to those positions having job functions directly and immediately relating to public health and safety, the protection of life and property, law enforcement, or national security. The Plan provided a preliminary list of 16 different job series whose positions would be TDPs, with an estimated 1,050 employees in these positions. The right to add or delete TDPs was specifically reserved to the Director of the DLA. On September 1, 1989, approval was requested, and subsequently received, to add all positions with access to secret or top secret information. The current TDPs list now includes positions with access to secret and top secret information, environmental protection specialists who work directly with hazardous wastes, security specialists, firefighters, guards and police, nurses, general and criminal investigators, and transportation/mobile equipment operators.

The DLA Plan provides for testing to be conducted in accordance with the testing, privacy and chain of custody requirements set forth in the Department of Health and Human Services' "Mandatory Guidelines for Federal Workplace Drug Testing Programs," issued by HHS pursuant to § 4(d) of Executive Order 12564. The procedure provides that an employee may be required to report to a collection site which has been "secured" by a collection site monitor by placing bluing agents in the toilet tanks and bowl water. Upon arrival, the employee will be asked for identification and to remove any unnecessary outer garments. The employee will be asked to wash her hands, after which the monitor must make sure the employee has no access to any water supply, soap or cleaning agents. The employee may provide her specimen in the privacy of a stall, with the monitor listening for any unusual behavior. After receiving the sample, the monitor will check it for sufficient volume and temperature. The collection site monitor will keep the sample in view at all times, and must execute chain of custody forms upon receipt of the specimen.

The Plan authorizes testing for the presence of five drug metabolites: marijuana, cocaine, opiates, phencyclidine and amphetamines. However, initial testing at the DLA will be conducted to detect only the presence of marijuana and cocaine metabolites.

STANDARD

Preliminary Injunction Standard

In deciding whether to grant or deny a preliminary injunction, the Court must balance four well-known factors. These factors are:

1. Whether the plaintiff has shown a strong or substantial likelihood of success on the merits;

2. Whether the plaintiff has shown irreparable injury;

3. Whether the issuance of a preliminary injunction would cause substantial harm to others; and

4. Whether the public interest would be served by issuing a preliminary injunction.

Forry, Inc. v. Neundorfer, Inc., 837 F.2d 259, 262 (6th Cir.1988); Mason County Medical Association v. Knebel, 563 F.2d 256, 261 (6th Cir.1977).

The purpose of the preliminary injunction is to preserve the status quo pending final determination of the lawsuit. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981). Preliminary injunctions are addressed to the discretion of the district court. Synanon Foundation, Inc. v. California, 444 U.S. 1307, 100 S.Ct. 496, 62 L.Ed.2d 454 (1979). This type of relief is an extraordinary remedy best used sparingly. Roghan v. Block, 590 F.Supp. 150 (W.D.Mich.1984).

The Sixth Circuit has cautioned courts that they should not view the four factors as prerequisites to relief, but rather as factors to be balanced. In re DeLorean Motor Co., 755 F.2d 1223 (6th Cir.1985). Thus, a court can enter a preliminary injunction if it finds that the plaintiff "at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if an injunction is issued." Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 105 (6th Cir. 1982). "Where the burden of the injunction would weigh as heavily on the defendant as on the plaintiff ,however, the plaintiff must make a showing of at least a `strong probability of success on the merits' before a trial court would be justified in issuing the order." Frisch's Restaurant, Inc. v. Shoney's, Inc., 759 F.2d 1261, 1270 (6th Cir.1985). Also, as the strength of showing as to irreparable harm increases, the necessity to show likelihood of success on the merits decreases. Ardister v. Mansour, 627 F.Supp. 641, 644 (W.D.Mich. 1986). Yet in spite of the overall flexibility of the test for preliminary injunctive relief, the Sixth Circuit has stated that irreparable harm element is to be analyzed carefully. In Friendship Materials, Inc. v. Michigan Brick, Inc., the court said:

Despite the overall flexibility of the test for preliminary injunctive relief, and the discretion vested in the district court, equity has traditionally required a showing of irreparable harm before an interlocutory injunction may be issued.

679 F.2d 100, 103 (6th Cir.1982).

DISCUSSION

The leading authorities on employee drug testing are Skinner v. Railway Labor Ex- ecutives' Association, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). In Skinner, the Supreme Court upheld Federal Railroad Administration ("FRA") regulations authorizing drug testing of employees without warrants or individualized suspicion when the employees were involved in train accidents or violated certain safety rules. While finding that mandatory urinalysis testing did constitute a search under the fourth amendment, the court stressed the important governmental interest at stake in monitoring railroad employees who are engaged in "safety-sensitive" tasks and whose duties are "fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences," and held that the government interest justified the "privacy intrusions" even absent a warrant or individualized suspicion. Skinner, 489 U.S. at ___, 109 S.Ct. at 1415, 1419, 103 L.Ed.2d at 662, 667. The court also found that railroad employees had a diminished expectation of privacy respecting information pertaining to their fitness.

In Von Raab, a case decided on the same day as Skinner, the court upheld urinalysis testing on United States Customs Service employees who sought transfer or promotion...