This Court's prior summary judgment regarding the TSA's meets all three of these requirements. First, the claims of the TSA's are "substantially different" from the claims asserted by the plaintiffs who remain pending before the Court. TSA's have clearance to handle, and access to, top secret materials. As the Court has previously discussed at length, this renders the claims of TSA's substantially different from the claims which remain pending. March 15 Order at 21-23.
Moreover, Defendants, in opposing the IFPTE's application, have not shown that entry of final judgment under Rule 54 would place prejudicial burdens on the Defendants sufficient to bar an immediate appeal. Defendants argue that if the IFPTE's application is granted they will be faced with "fragmented" litigation that will put it in the difficult position of having to prepare and implement a drug testing program that will simultaneously meet the requirements imposed by the Ninth Circuit and this Court. Defendants' Opposition to Motion For Order Pursuant to Rule 54(b) at 5, 9. This argument is implausible for two reasons.
First, in granting summary judgment, this Court has offered its final analysis regarding the TSA's, and there is no possibility that Defendants will be subject later to the burden of conflicting and changing orders simultaneously emanating from two judicial sources.
Second, any revisions or limitations on Defendants drug testing program imposed by the Ninth Circuit can not be prejudicial since Defendants will have to meet these requirements sooner or later anyway. Indeed, immediate appeal will allow Defendants to avoid costs by incorporating the views of the Ninth Circuit into the present revisionary process.
For the foregoing reasons, IFPTE's Application for Order Pursuant to Rule 54(b) is GRANTED, and the decision granting summary judgment for Defendants in the Order Regarding Cross-Motions for Preliminary Injunction and for Summary Judgment, American Federation of Government Employees, Local 1533, et al. v. Cheney et al., National Federation of Federal Employees, et al. v. Garett, et al., and Metal Trades Department et al. v. Garett, et al., C-88-3323, C-89-4112, C-89-4433 [Consolidated] (N.D. Cal. March 15, 1990), regarding Defendants' drug testing of Department of Navy employees with security clearance of "top secret with access" shall be entered as final judgment.
IT IS SO ORDERED.