Before conducting reasonable suspicion testing, the employee's supervisor must gather supporting information and obtain approval for testing from a supervisor at least one level further above. OCPMINST 12792.3 at 24. Follow-up documentation must also be prepared and submitted to the local drug program coordinator. Id.
Plaintiffs challenge the reasonable testing provisions largely because they are not limited to observations of on-duty conduct for the purpose of detecting on-duty impairment. The Court is of the opinion that this is not a fatal defect in the Plan. See Connelly, slip op. at 10-13. Like other employers, the government has an interest in the efficiency and productivity of its employees, which constitutes a "special governmental need" as required by Von Raab and Skinner. Where drug testing serves such a special need, an employee's off-duty conduct may raise a sufficient risk of on-duty impairment to justify drug testing under the Fourth Amendment. Accord, AFGE v. Cavazos, 721 F. Supp. 1361, 1376-77 (D.D.C. 1989); Yeutter, 733 F. Supp. 403, slip op. at pp. 25-28.
This is particularly true where the off-duty conduct is contemporaneous with the suspected drug user's employment. While it is true that the Navy's reasonable suspicion testing may be predicated in part, or even entirely, on off-duty behavior, each of the factors enumerated has a tendency to make the existence of on-duty impairment "more or less probable than it would be without the evidence." Skinner, 109 S. Ct. at 1421.
Nor is it fatally defective to the Plan that the criteria are not limited to evidence of current drug use, whether on or off duty. While the Court is of the opinion that evidence of long past drug use, with nothing more, would not provide a sufficient nexus with fears of current on-duty impairment to qualify as a "reasonable" suspicion, the failure to so limit the criteria on the face of the Plan does deprive the Plan of overall reasonableness. Should the Plan be applied in such a way as to rely on evidence too attenuated to create the required nexus with risk of on-duty impairment, a further challenge will be ripe at that time. E.g., McLeod v. Department of the Army, 714 F.2d 918 (9th Cir. 1983) (mere possession of marijuana found too attenuated a link to create nexus with on-duty impairment).
Further, the Supreme Court has not relied on distinctions between on-duty and off-duty drug use. In Skinner, post-accident testing of railroad workers could not conclusively establish whether the employee's use of drugs or alcohol contributed to the accident or merely impaired the employee while off-duty. The Court nevertheless upheld such testing. Id. 109 S. Ct. at 1420-21. Similarly, no distinction between on-duty and off-duty use was identified in Von Raab. The import of these decisions is that, as an employer, the government has a strong interest in its employees' off-duty drug use to the extent that such behavior increases the risk of on-duty drug impairment or otherwise detracts from job performance.
Finally, the requirement of individualized suspicion based on objective observable criteria naturally diminishes the privacy expectation of employees. Employees who use drugs while off-duty or who have a significant history of drug use are on notice that they are subject to reasonable suspicion testing. The Unions' argument that these employees are subject to more intrusive testing, through direct observation of urination, is unfounded. Under the Plan, reasonable suspicion of drug use may form a basis for direct observation, but direct observation is optional, not required, based on the site coordinator's judgment, which must be documented. Therefore, the Court finds that the provisions for reasonable suspicion testing do not on their face impermissibly intrude on reasonable privacy interests.
For these reasons, the motion for preliminary injunction is DENIED as to the reasonable suspicion testing provisions of the Plan, and summary judgment is GRANTED in favor of the defendants.
IV. CIVIL SERVICE REFORM ACT
The Unions allege that, in addition to violating the Fourth Amendment, the Navy drug testing plan violates the Civil Service Reform Act of 1978, which prohibits federal agencies from discriminating against employees on the basis of conduct which does not adversely affect job performance of that employee or others. 5 U.S.C. § 2302(b)(10). The Unions argue that use of verified positive drug test results as a basis for disciplinary action punishes employees for conduct not demonstrated to affect job performance, since no finding of on-duty impairment is required.
However this Court has acknowledged that the government as an employer has an interest in a drug-free workplace, based in reasonable interests in the efficiency and productivity of the workforce. The Unions argue that this creates a presumption of a nexus between drug use and impairment of departmental efficiency, which nexus held not to exist in McLeod v. Department of the Army, 714 F.2d 918 (9th Cir. 1983). McLeod is inapposite, standing as it does for the proposition that illegal possession of drugs, without evidence of use, cannot supply a nexus to impairment of service efficiency. Id. at 920-21.
The entire purpose of the Navy Plan is to detect evidence of current ingestion of drugs, not mere possession. Thus the crucial connection missing in McLeod is necessarily present in disciplinary actions resulting from administration of the Plan. Further, any issues of denial of procedural due process raised under the Act have been answered by the District Court for the District of Columbia. AFGE v. Cavazos, 721 F. Supp. 1361, 1377; Yeutter, 733 F. Supp. 403, slip op at pp. 33-34.
Therefore, partial summary judgment in favor of defendants is GRANTED as to plaintiffs' claims under the Civil Service Reform Act of 1978.
For all of the foregoing reasons, the Court rules as follows:
1. The following provisions of the Navy drug testing plan are hereby ENJOINED during the pendency of this litigation:
(a) The Post-Accident or Unsafe Practices provisions of the Plan.
(b) Random testing of the following TDPs: