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AFGE, COUNCIL 33 v. BARR

May 12, 1992

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, COUNCIL 33; AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, L-3584; BENITA MAYS, Plaintiffs,
v.
WILLIAM P. BARR, Attorney General of the United States; J. MICHAEL QUINLAN, Director of the Federal Bureau of Prisons; ROB ROBERTS, Warden of the Pleasanton Federal Correctional Institution, Defendants.



The opinion of the court was delivered by: STANLEY A. WEIGEL

 Plaintiffs sued to enjoin an allegedly unconstitutional drug testing program. The program was instituted by the United States Department of Justice for employees of the Federal Bureau of Prisons (the "Bureau"). Plaintiffs are a union that represents Bureau employees. In June 1988, this Court granted plaintiffs' motion for a preliminary injunction and enjoined the testing of any Bureau employee absent reasonable suspicion that drug use by that employee impaired his or her ability to perform official duty. American Federation of Government Employees, Council 33 v. Meese, 688 F. Supp. 547, 556 (N.D. Cal. 1988). In September 1989, upon reconsideration of the case in light of decisions by the United States Supreme Court in Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) ("Skinner"), and National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) ("Von Raab"), this Court reaffirmed the preliminary injunction without modification. American Federation of Government Employees, Council 33 v. Thornburgh, 720 F. Supp. 154 (N.D. Cal. 1989). Before that reaffirmation, the Court had denied defendants' motion for summary judgment on plaintiffs' claims under the Fourth Amendment and the Civil Service Reform Act of 1974, 5 U.S.C. § 2302(b)(10).

 Defendants now renew their motion for summary judgment on these claims. Supporting this renewed motion are a number of decisions by the Ninth Circuit and other jurisdictions upholding drug-testing programs with many of the same components as the program proposed by defendants. Defendants have also modified their original proposal in an attempt to bring it within constitutional bounds under prevailing case law. Plaintiffs agree that summary adjudication is appropriate but they raise objections to various aspects of defendants' modified proposal.

 I. BACKGROUND

 Defendants' new program proposes testing in the same general categories initially outlined. The proposed random testing is now narrowed, however, to cover certain "testing-designated positions." Both the "post-accident" and "reasonable suspicion" components have also been somewhat narrowed. Plaintiffs nevertheless maintain their constitutional challenge to these three components. *fn1"

 II. DISCUSSION

 A. Standards.

 It is undisputed that mandatory urinalysis is a "search" under the Fourth Amendment. Skinner, 489 U.S. at 617. Whether it is an unreasonable search depends upon its nature and all the circumstances surrounding it. Id. at 619 (citation omitted). Neither a warrant nor probable cause is required where "special needs, beyond the normal need for law enforcement make such a prerequisite impracticable." Id. (citations omitted). The government's interest in operating a government office can present such "special needs" to justify a departure from the usual Fourth Amendment requirements. Id. at 620. When faced with such special needs, this Court must "balance the governmental and privacy interests" to determine whether a search is reasonable and thus constitutional. Id. at 619; Von Raab, 489 U.S. at 665, 679. The Ninth Circuit has followed this balancing approach in four recent decisions upholding drug-testing programs that allow the testing of employees absent reasonable suspicion of on-the-job impairment. Railway Labor Executives' Ass'n v. Skinner, 934 F.2d 1096 (9th Cir. 1991 ("RLEA]II"); Int'l Brotherhood of Teamsters v. Dept. of Transportation, 932 F.2d 1292 (9th Cir. 1991) ("Teamsters"); Int'l Brotherhood of Electrical Workers, Local 1245 v. Skinner, 913 F.2d 1454 (9th Cir. 1990) ("IBEW"); Bluestein v. Skinner, 908 F.2d 451 (9th Cir. 1990), cert. denied, 112 L. Ed. 2d 1042, 111 S. Ct. 954 (1991) ("Bluestein").

 "Special needs" exist here under the meaning of the recent cases. The Bureau plan is not designed to enforce drug laws but to ensure the safe and effective discharge of duties by Bureau personnel, particularly in the context of Bureau prisons. See Federal Bureau of Prisons Drug-Free Workplace Program Statement ("Program Statement") at 1, 3-4. Test results may not be used in a criminal prosecution without the employee's consent. Pub. L. 100-71, 5 U.S.C. § 7301 note, at § 3(e); cf. Von Raab, 489 U.S. at 666. The balancing test is therefore appropriate here. See Teamsters, 932 F.2d at 1299; Von Raab, 489 U.S. at 666.

 B. Random Testing.

 1. Privacy interests.

 This Court found urinalysis -- the Bureau's proposed testing method -- to be highly intrusive. AFGE v. Meese, 688 F. Supp. at 551. *fn2" Since that finding, the Supreme Court has rejected the notion that urinalysis is always a substantial privacy invasion. Von Raab, 489 U.S. at 671. That Court has also identified a number of factors that may reduce privacy expectations and thus the intrusiveness of the testing. These factors include prior notice, see id. at 672-73 n.2; limited discretion in choosing the tested employees, see Skinner, 489 U.S. at 634; and the particular employment context, see id. at 627-28; Von Raab, 489 U.S. at 677. These same factors minimize the privacy expectations of at least certain Bureau employees under the testing program proposed here. The Bureau will issue a specific notice to all employees and a copy of the revised program long before the testing begins. Fourth Quinlan Decl. at P 2. *fn3" The random selection of employees to be tested would leave no room for supervisory discretion. IBEW, 913 F.2d at 1460; First Quinlan Decl. at P 8(b) and Exh. E. Bureau employees undergo urinalysis testing and background and integrity checks when hired, and whenever they report to work at a Bureau institution they are subject to routine searches of their person and property and, upon reasonable suspicion of drug use or criminal activity, a visual search, pat search, urine surveillance test, breathalyzer test, or "other comparable test" whenever they report to work at an institution. First Quinlan Decl. at P 5 and Exhs. B & C. It therefore appears that employees who work at Bureau institutions have, while on the job, privacy expectations "markedly less than those of the public in general." Teamsters, 932 F.2d at 1300. See also Von Raab, 489 U.S. at 677-78; Skinner, 489 U.S. at 627-28; Connelly v. Newman, 753 F. Supp. 293, 296 (N.D. Cal. 1990) (privacy expectations of investigators in Office of Personnel Management are comparable to those of railroad employees considered in Skinner since both work "in an industry subject to heavy government regulation"); NFFE v. Cheney, 884 F.2d 603, 612-613 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 110 S. Ct. 864, 107 L. Ed. 2d 948 (1990) (pre-employment screenings and medical tests lower reasonable privacy expectations of Army civilian guards); AFGE v. Cavazos, 721 F. Supp. 1361, 1374-75 (D.D.C. 1989), aff'd in part and vacated in part, 926 F.2d 1215 (1991) (Department of Education positions designated critical and sensitive and for which employees must complete application form inquiring about personal lives and prior drug use have reduced privacy expectations).

 The Bureau's urinalysis procedures follow the mandatory guidelines promulgated by the Department of Health and Human Services (HHS). 53 FR 11970, 11979 ff. (1988); Program Statement at 5. The Supreme Court reviewed and approved these procedures in Von Raab. 489 U.S. at 661-62 n.1 and 672-73 n.2. That the Bureau's program includes a random testing component, unlike the programs upheld in Skinner and Von Raab, would not appear to change the privacy calculus significantly. See RLEA II, 934 F.2d at 1098-1100; Bluestein, 908 F.2d at 456-457; cf. Harmon v. Thornburgh, 878 F.2d 484, 489, 492 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990). In fact, the Ninth Circuit has found random testing limits the potential intrusiveness by eliminating supervisory discretion and thus the possibility of actual or perceived harassment. See IBEW, 913 F.2d at 1460; cf. AFGE v. Skinner, 885 F.2d 884, 891 (D.C. Cir. 1989), cert. denied, 495 U.S. 923, 110 S. Ct. 1960, 109 L. Ed. 2d 321 (1990). It has also approved random testing as particularly well-suited to deterring drug use. RLEA II, 934 F.2d at 1099; IBEW, 913 F.2d at 1460; cf. AFGE v. Skinner, 885 F.2d at 891. Finally, the fact that the less intrusive measures may exist -- an issue given weight by this Court, see AFGE v. Meese, 688 F. Supp. at 554 -- is not prohibitive. See Skinner, 489 U.S. at 629 n.9; cf. NFFE v. Cheney, 884 F.2d at 610. This Court therefore has no choice but to find that random urinalysis of employees working at Bureau institutions implicates diminished privacy interests, given the already substantially reduced privacy expectations of these employees and the binding authority upholding urinalysis testing under methods identical to those proposed here. Now the government's interests must be balanced against these privacy interests.

 2. Government interests.

 The Supreme Court has identified three government interests that can support drug testing without particular suspicion of an individual employee's drug use and impairment. These are (1) promotion of the public safety, (2) protection of truly sensitive information, and (3) maintenance of employee integrity. See Skinner, 489 U.S. at 628; Von Raab, 489 U.S. at 670-71, 677. Defendants advance precisely these three rationales to justify their proposed program.

 a. "Public Safety."

 Under the "public safety" rationale, defendants would test all those employees who may potentially use firearms in the course of their Bureau duties. This group includes those employees in positions designated as "primary law enforcement" positions, which comprises all employees who work at correctional institutions and includes jobs from "correction officer" to "upholstering" and "animal caretaking"; and employees in "secondary law enforcement" positions, which comprise all employees previously in primary law enforcement positions who have now been reassigned to noninstitutional settings. Secondary law enforcement employees include "corrections officers" as well as non-institutional employees engaged in myriad activities such as "cooking" and "accounting." Defendants have provided evidence that all employees in both primary and secondary law enforcement positions are trained in the use of firearms and, while none of them regularly carry weapons, any of these employees can be issued firearms and called upon to use them in emergency situations. In addition to these employees, defendants would also test physicians and dentists under the "public safety" rubric.

 There is no doubt that the government's interest in testing employees who may carry firearms in the regular course of their duties is compelling. Von Raab, 489 U.S. at 670. Defendants insist that this interest justifies the testing of all primary and secondary law enforcement Bureau employees because all are trained in the use of firearms and might be called upon to use them in emergency situations. Defendants insist that the frequency of firearm use is insignificant since the magnitude of the harm caused by its misuse is "catastrophic." Defendants' authorities for this proposition, however, allow the testing of employees who regularly carry firearms. See NFFE v. Cheney, 884 F.2d at 612 (Army guards); AFGE Local 1533 v. Cheney, 754 F. Supp. 1409, 1423-24 (N.D. Cal. 1990), aff'd. on other grounds 944 F.2d 503 (9th Cir. 1991) (Navy civilian law enforcement personnel); AFGE v. Cavazos, 721 F. Supp. at 1372 (armed civilian guard); Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir.), cert. denied, 493 U.S. 963, 107 L. Ed. 2d 370, 110 S. Ct. 404 (1989) (police officers); but see Seelig v. Koehler, 76 N.Y.2d 87, 556 N.E.2d 125, 129, 556 N.Y.S.2d 832 (N.Y.), cert. denied, 112 L. Ed. 2d 102, 111 S. Ct. 134 (1990) (upholding random urinalysis of state jail guards who do not regularly carry firearms). The federal decisions upholding, on "public safety" grounds, the random testing of employees who do not regularly carry firearms do so since the particular occupations involve at all times the discharge of duties "fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences." Von Raab, 489 U.S. at 670 (Customs officers carrying firearms); Skinner, 489 U.S. at 628 (railroad employees involved in train accidents); RLEA II, 934 F.2d at 1097 n.1 (railroad employees in "safety-sensitive" positions); Bluestein, 908 F.2d at 456 (passenger airline personnel); IBEW, 913 F.2d at 1462 (pipeline workers); Teamsters, 932 F.2d at 1306 (commercial bus and truck drivers), and cases cited therein. Such great danger may very well exist with Bureau employees ...


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