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March 15, 1990

RICHARD B. CHENEY, Secretary of Department of Defense, et al., Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES, et al., Plaintiffs, v. H. LAWRENCE GARRETT, Secretary of the Navy, et al., Defendants. METAL TRADES DEPARTMENT, et al., Plaintiffs, v. H. LAWRENCE GARRETT, Secretary of the Navy, et al., Defendants

D. Lowell Jensen, United States District Judge.

The opinion of the court was delivered by: JENSEN


 On January 31, 1990, in a consolidated hearing the Court heard plaintiffs' motions for preliminary injunction and defendants' motions for summary judgment as to disputed provisions of the Department of the Navy's Drug-Free Workplace Program drug testing plan for civilian employees ("the Plan").

 Appearing for plaintiff American Federation of Government of Employees ("AFGE") were Anne Wagner of the AFGE General Counsel's Office, Washington D.C., and Michael Robin of Altshuler & Berzon, San Francisco, California. Jeffrey Sumberg, Staff Attorney, appeared for plaintiff National Federation of Federal Employees ("NFFE"), Washington D.C. Appearing for plaintiff Metal Trades Department AFL-CIO ("Metal Trades") were David Rosenfeld of Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, California and Beth A. Jacobson of O'Donoghue & O'Donoghue, Washington D.C. Mr. Rosenfeld also appeared for intervenor United Association of Plumbers & Pipe Fitters, Local 127.

 Assistant U.S. Attorney Shawn B. Jensen and Captain Ray Lee of the Office of Civilian Personnel Management, Arlington, Virginia, appeared for all defendants.

 James E. Eggleston of San Francisco, California, and Julia L. Akins of Silver Spring, Maryland, appeared for the International Federation of Professional and Technical Engineers ("IFPTE") on its application to intervene as a plaintiff.

 At the hearing the Court GRANTED IFPTE's motion to intervene and gave IFPTE and defendants leave to file further briefing on random testing of personnel holding top secret with access security clearances.

 The scope of the drug testing plan under challenge here is quite broad, designating approximately 80,000 civilian Naval employees in over 100 separate job positions for potential random drug testing; in addition, all civilian Naval employees, numbering over 300,000 worldwide, will be subject to the post-accident and reasonable suspicion testing provisions of the Plan. The legal challenge is almost as broad, challenging the post-accident and reasonable suspicion provisions as well as the random testing provisions for all but a handful of the designated job positions.

 Based on the briefs and supporting evidence submitted by the parties, the oral argument of counsel, and the applicable law, the Court hereby PARTIALLY GRANTS the motions for PRELIMINARY INJUNCTION, as to identified provisions of the Plan. The Court also PARTIALLY GRANTS the motions for SUMMARY JUDGMENT as to other identified provisions of the Plan.


 A. The Present Litigation

 The Department of the Navy employs over 325,000 civilian at its activities and bases around the world. The Navy developed and adopted a Drug-Free Workplace Program to comply with Executive Order 12,564, 51 Fed. Reg. 32,889 (1986) (E.O. 12,564), which directed the heads of all executive agencies to "develop a plan for achieving the objective of a drug-free workplace." Id. § 2(a). As part of such a plan, urinalysis drug testing programs were ordered to be developed within each agency to test for drug use under certain circumstances, in particular, to detect "the use of illegal drugs by employees in sensitive positions" within the federal civil service. Id. § 3(a).

 These lawsuits were brought by collective bargaining agents (hereinafter collectively referred to as "the Unions") who represent employees subject to testing under the Plan. The Unions allege that the Plan violates their members' Fourth Amendment right to be free of unreasonable searches as well as violating the Civil Service Reform Act of 1978, which prohibits disciplining federal employees for off-duty misconduct which does not adversely affect job performance.

 The actions were consolidated on February 2, 1990. Pursuant to a stipulation entered by the parties in Case No. C88-3823 on September 28, 1989, notice of any implementation of the Plan was required to provide the Unions sufficient time to file for preliminary injunction of the challenged aspects of the Plan. On December 1, 1989, the first 30-day notices of testing issued, and by its Order Issuing Stay, dated December 29, 1989, the Court stayed implementation of the Plan pending disposition of the present motions.

 B. The Navy Drug Testing Plan

 1. Types of Drug Testing.

 The Plan is embodied in Civilian Personnel Instruction 792-3, issued June 30, 1989 (cited herein as "OCPMINST 12792.3"). The Plan establishes four types of urinalysis drug testing for all employees under certain circumstances: (1) testing upon reasonable suspicion of illegal drug use; (2) testing following occurrence of an accident or unsafe practice ("post-accident testing"); (3) voluntary testing; and (4) testing as part of or as a follow-up to drug counseling or rehabilitation. OCPMINST 12792.3 at 23-26.

 2. Testing Designated Job Positions.

 The Plan further requires random urinalysis testing of employees in 45 identified job classifications, known as "Testing Designated Positions" ("TDPs"). OCPMINST 12792.3 at 17-23. Six of these classifications are "Automatic" TDPs -- i.e., subject to random testing regardless of specific job duties; *fn1" and 39 are "Job Function" TDPs -- designated positions in which employees are subject to testing only if their duties involve "national security; protection to life and property; law enforcement; drug/alcohol rehabilitation; public health and safety; or operation or maintenance of transportation or major mechanical or electrical equipment." *fn2" See Testing Designated Position List, App. E to OCPMINST 12792.3 at E-4 to E-8 (hereinafter "TDP List"). Applicants for any of these positions are subject to a one-time drug test as part of their application. OCPMINST 12792.3 at 28.

 The Unions here do not challenge the voluntary, follow-up, or applicant testing provisions in the Plan. Further, no challenge is made to the program of testing applicants for TDPs. Finally, plaintiffs do not seek preliminary relief for the following TDPs designated for random testing: Presidential Appointees; Nuclear Weapon Personnel Reliability Program; Military Sealift Command, Nuclear Weapon Personnel Reliability Program; Military Sealift Command Civilian Mariners; Navy Drug Screening Laboratory Employees; and those holding Air Traffic Control positions.

 Thus, the features of the Navy Plan presented for the Court's review on these motions are (1) random testing of employees holding Top Secret Clearances with Access and employees in Job Function TDPs (other than Air Traffic Control personnel); (2) the post-accident testing provisions; and (3) the reasonable suspicion testing provisions.

 3. Drug Testing Procedures.

 Procedures for specimen collection, testing, and chain of custody follow the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" ("HHS Guidelines"), 53 Fed. Reg. 11,970 (April 11, 1988). A general notice announcing the Plan was sent to Navy civilian employees on or about September 1, 1988. Reasonable suspicion and post-accident specimen collections will be scheduled upon approval following the precipitating event. OCPMINST 12792.3 at 23, 26.

 Under the Plan, employees found to work in TDPs will receive 30 days notice that their positions have been found to meet the criteria and justification for random testing. *fn3" OCPMINST 12792.3 at 11. An employee subject to random testing will be informed approximately two hours in advance that a urine specimen will be collected, and will be notified of the exact time and location of the specimen collection approximately 30 minutes in advance. OCPMINST 12792.3 at 21.

 The Plan requires that all urine samples be tested for the presence of five drugs: cocaine, marijuana, amphetamines, opiates, and phencyclidine (PCP). In cases of reasonable suspicion or post-accident testing, the Navy may also test for any drug in Schedules I and II of the Controlled Substances Act, 21 U.S.C. § 812. OCPMINST 12792.3 at 11.

 All urine samples will be initially screened using the Radio-Immuno-Assay ("RIA") technique. If this test is positive for the presence of drugs, a more accurate gas chromatography/mass spectrometry ("GC/MS") confirmatory test will be performed. HHS Guidelines § 2.4(g)(2). All positive laboratory results must be reviewed and verified by a Medical Review Officer before they are reported as positive. HHS Guidelines § 2.7(c). An employee whose test is reported by the laboratory as positive will have an opportunity to present the Review Officer, a physician knowledgeable about substance abuse problems, with evidence of a legitimate reason for the result, such as a doctor's prescription. OCPMINST 12792.3 at 31-32. If the Review Officer determines that there is no medical justification for the positive result, the result will be considered a verified positive result with the consequences discussed below.

 Direct observation of urination to provide a testing specimen is permitted under the Plan "if an activity/command has reason to believe that the individual may alter or substitute the specimen." OCPMINST 12792.3 at 13. Testing based on reasonable suspicion of drug use is one circumstance which may provide such reason to believe that tampering is possible; however, the Plan does not require that all reasonable suspicion testing be conducted under direct observation. Id.

 Other standard collection procedures further require the employee subject to testing to produce photo identification upon arriving at the collection site; to wash and dry hands before providing the specimen; and to remove "unnecessary outer garments" and surrender personal belongings to the collection site coordinator. App. D to OCPMINST 12792.3. The collection site coordinator "secures" the testing area by placing bluing agents in the toilet water and turning off all other sources of water. While the employee is urinating inside the closed stall, the coordinator is to remain aware of "unusual sounds, behavior, or delays" by the employee. Upon receipt of the specimen, the coordinator measures its temperature and checks for proper color and the presence of contaminants. Id. If the coordinator observes anything which provides reason to believe that the specimen has been altered or tampered with, the coordinator must obtain a second specimen as soon as possible, which may be required to be provided under direct observation. Id.

 4. Sanction for Positive Test Result.

 If the urinalysis produces a positive test result and the Medical Review Officer determines that there is no alternative medical justification for such positive result, the result is considered "verified positive" and evidence of illegal drug use. OCPMINST 12792.3 at 31-32. Upon a determination of illegal drug use, the employee must be referred to the Civilian Employee Assistance Program ("CEAP"), and, if in a sensitive position, the employee must be immediately removed from that position through appropriate personnel action. OCPMINST 12792.3 at 33. *fn4" An employee may be subject to disciplinary action, including termination, for refusal to obtain counseling following a verified test result or upon a second finding of illegal drug use. OCPMINST 12792.3 at 33. Disciplinary action must be in accordance with the requirements of applicable collective bargaining agreements. OCPMINST 12792.3 at 34.

 An employee may avoid discipline for illegal drug use by voluntarily identifying himself or herself as a user to a supervisor, if in addition the employee: (1) obtains counseling and rehabilitation through the CEAP; (2) agrees to follow-up drug testing; (3) consents in writing to the release of all records relating to use or rehabilitation to CEAP and "appropriate management officials;" and (4) subsequently refrains from illegal drug use. OCPMINST 12792.3 at 12.

 This "safe harbor" is not available after notification of a scheduled drug test or after providing a testing specimen, nor under circumstances where other evidence of illegal use has become available but is not yet known to the employee's supervisors. OCPMINST 12792.3 at 33.

 5. Sanction for Refusal to Provide Urine Specimen.

 An employee who refuses to appear at a scheduled test or to submit to testing, regardless of the type of circumstances mandating the test (whether random, post-accident, or reasonable suspicion testing, for example), is subject to the "same range of discipline" available for an employee who has a verified positive test result. OCPMINST 12792.3 at 14. Therefore, an employee may be subject to termination for refusing to submit to urine testing.


 A. Preliminary Injunction

 The standard for determining whether a preliminary injunction should issue is well settled within the Ninth Circuit. See Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215 (9th Cir. 1987); San Diego Comm. Against Registration and the Draft v. Governing Board of Grossmont Union High School Dist., 790 F.2d 1471, 1473 n. 3 (9th Cir. 1986); Sardi's Restaurant Corp. v. Sardie, 755 F.2d 719, 723 (9th Cir. 1985). "To qualify for a preliminary injunction the moving party must show either (1) a combination of probable success on the merits and the possibility of irreparable harm, or (2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor." Rodeo, 812 F.2d at 1217. These are not two distinct tests, but rather the opposite ends of a single "continuum in which the required showing of harm varies inversely with the required showing of meritoriousness." Id. (quoting San Diego Comm., 790 F.2d at 1473 n.3).

 It is established that violation of an individual's constitutional right to be free from unreasonable searches as articulated in the Fourth Amendment causes irreparable harm. LaDuke v. Nelson, 762 F.2d 1318, 1330 (9th Cir. 1985), modified on other grounds, 796 F.2d 309 (9th Cir. 1986); Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983). It is also settled that urine testing implicates the civil liberties guaranteed by the Constitution as such testing must be deemed Fourth Amendment searches. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402, 1412-13 (1989). The protection guaranteed by the Fourth Amendment against unreasonable drug testing applies even when such testing is carried out by the federal government acting as an employer. O'Connor v. Ortega, 480 U.S. 709, 717, 94 L. Ed. 2d 714, 107 S. Ct. 1492 (1987). Accordingly, the court holds that plaintiffs in the present case will suffer irreparable injury as a matter of law if the Plan constitutes an unreasonable search and is not enjoined.

 In order to meet the standard for preliminary injunction, the Unions must show, in addition to exposure to irreparable injury, a likelihood of success on the merits. Plaintiffs' showing in this respect is closely connected with the showing they must make to defeat the Navy's motion for summary judgment that the provisions of the Plan are constitutional. Therefore, the legal standard for summary judgment is discussed below.

 B. Summary Judgment

 1. General Principles of Rule 56.

 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment may be granted when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to a judgment as a matter of law."

 In a motion for summary judgment, "if the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrates the absence of any genuine issues of material fact," the burden of production then shifts so that "the nonmoving party must set forth, by affidavit or as otherwise provided in Rule 56, ' specific facts showing that there is a genuine issue for trial.'" T.W. Electrical Service, Inc. v. Pacific Elec. Contractors, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1983); Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949, 107 S. Ct. 435, 93 L. Ed. 2d 384 (1986)) (emphasis in original). When judging the evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party. T.W. Electrical Service, Inc., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)). Summary judgment may issue "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 106 S. Ct. at 2552. The standard for judging either a defendant's or plaintiff's motion for summary judgment is the same standard used to judge a motion for a directed verdict: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).

 2. Summary Judgment in Drug Testing Programs.

 On a motion for summary judgment involving the constitutionality of drug testing programs, there is no clear guidance on which party bears the burden. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), contains language indicating that, as with other Fourth Amendment cases, the government bears the burden of proving that its search is reasonable. See id. at 1396 (finding that the government had "demonstrated that its compelling interests in safeguarding our border and the public safety outweigh the privacy expectations" of personnel designated for drug testing). See also AFGE v. Skinner, 885 F.2d 884, 894 (D.C. Cir. 1989) (hereinafter AFGE (Transportation)) (considering without resolving the issue of burden in view of Von Raab on the one hand and a civil rights plaintiff's obligation to prove the illegality of the government's conduct on the other).

 In deciding a motion for summary judgment, the Court considers whether the Unions have raised an issue as to the reasonableness of each challenged provision, and only for provisions where no genuine issue is raised will summary judgment be granted. This procedure is proper as a means of enjoining only unreasonable testing and compelling the government, where it wishes to expand its testing program, to fashion such an expanded program to meet constitutional requirements. See Harmon, 878 F.2d at 490-91.

 In considering the reasonableness of separate provisions, the Court relies on principles underlying the developing law regarding the constitutionality of federal employee drug testing programs and will require the following standards to justify a grant of summary judgment:

 a. Random testing. The Court finds that at a minimum summary judgment in favor of the Navy for a random testing program requires that no material issue of fact remain regarding the direct nexus between the duties of each employee in a testing designated position and the governmental concerns identified by the Navy. See Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484, 490 (D.C.Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990).

 Pursuant to the remedial principles announced in Harmon, the Court need not, and indeed should not, redraw categories of workers to distinguish those who constitutionally may be tested from those who may not. See generally, 878 F.2d at 493-95. In the interest of avoiding unnecessary rulings, the Court will not infer that, if the Navy can test only some employees holding a certain position, it would choose to test them and not the rest. Further, "courts ordinarily do not attempt, even with the assistance of agency counsel, to fashion a valid regulation from the remnants of the old rule. [footnote omitted]." Id. at 494. Therefore, the Court will not draw lines that the Navy itself has not drawn, and where a job position ...

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