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AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1857 et al. Plaintiffs
vs.
JAMES F. WILSON etc. et al. Defendants. NATIONAL FEDERATION OF FEDERAL EMPLOYEES et al. Plaintiffs v. DONALD B. RICE etc. et al. Defendants
 
Case:
No. Civ. S-89-1274 LKK
 
Location:
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
 
Date:
July 9, 1990 Decided
 
Court:
Lawrence K. Karlton, Chief United States District Court.
 
Author:
The Hon. Justice Karlton
 

This suit is one of a series of lawsuits challenging the validity of a drug screening program promulgated by an executive agency. In these consolidated cases plaintiffs the American Federation of Government Employees AFL-CIO ("AFGE") and its affiliates AFGE Local 1857 AFGE Local 2025 and AFGE Local 1692 and the National Federation of Federal Employees ("NFFE") challenge on statutory and constitutional grounds the validity of the Air Force Civilian Drug Testing Plan approved by the Secretary of the Air Force on January 24 1990. Plaintiffs seek declaratory and injunctive relief on behalf of all AFGE and NFFE bargaining unit civilian employees who are employed by the Air Force. *fn1

Plaintiff AFGE initially moved Court for a preliminary injunction on April 23 1990 contending that the Air Force Civilian Drug Testing Plan ("the Plan") violates both the Civil Service Reform Act of 1978 5 U.S.C. SEC. 2302(b)(10) and the Fourth Amendment to the United States Constitution. By this motion they seek to enjoin the Air Force from implementing the Plan pending a final adjudication before this court. Following hearing Court requested supplemental briefing from the parties and continued the matter to June 25 1990. On June 18 1990 the AFGE plaintiffs moved the court for a temporary restraining order. After extended argument Court granted the motion in part and took plaintiffs' pending motion for preliminary injunction under submission. The matter is disposed of herein.

I

THE AIR FORCE CIVILIAN DRUG TESTING PLAN

On September 15 1986 President Reagan issued Executive Order No. 12564 entitled "Drug Free Workplace " requiring the head of each executive agency to develop a plan for achieving the objective of a drug-free workplace. 51 Fed. Reg. 180 at 32 889 (1986). Pursuant to this directive agency heads were required to establish programs "to test for the use of illegal drugs in sensitive positions." Id. at sec. 3(a). Discretion to determine which employment positions would be designated sensitive was delegated to each agency head based upon the nature of the agency's mission and its employees' duties the efficient use of agency resources and the danger to the public health and safety or national security that could result from the failure of an employee adequately to discharge his or her position.

Id. On July 11 1987 Congress enacted legislation precluding the use of federal monies to implement Executive Order No. 12564 unless among other things the Secretary of Health and Human Services ("HHS") promulgated mandatory guidelines setting standards for laboratory drug testing and procedures. See Supplemental Appropriation Act of 1987 Pub. L. No. 100-71 SEC. 503 101 Stat. 391 5 U.S.C. SEC. 7301 note (Supp. V. 1987). HHS published final regulations establishing the required testing guidelines on April 11 1988. See 53 Fed. Reg. 11 970 et seq.

On January 24 1990 the Secretary of the Air Force approved the Air Force Civilian Drug Testing Plan. AFGE Exhibit C Department of Air Force Civilian Drug Testing Plan. Six types of testing are contemplated by the Plan to achieve its stated purpose of eliminating illegal drug use in the workplace including:

(1) applicant testing; (2) random testing of employees in sensitive positions identified as "testing designated positions;" (3) reasonable suspicion testing; (4) accident or safety mishap testing; (5) voluntary testing; and (6) testing as part of or as a follow-up to Counseling or rehabilitation.

AFGE Exhibit C at 3.

The Secretary has identified approximately eight percent (8%) of the Air Force Civilian Workforce as holding sensitive or "testing designated positions" ("TDPs") justifying random urinalysis testing. AFGE Exhibit C Appendix A. These include both generic positions represented throughout the civilian ranks of the Air Force as well as particular positions identified at specific Major Commands. Id. at 22. *fn2 The Plan states that "a job functions associated with these positions directly and immediately relate to public health and safety the protection of life and property law enforcement or national security." Id. at 23. The Plan contemplates random testing of 500 employees per month with a total of 25% of the work force annually. Id. at 43. The Plan does not mandate a method of determining random selection but it specifically prohibits selection of employees for drug testing "on the basis of a desire to test particular individual employees." Id. at 7.

"Reasonable suspicion" testing of employees who are suspected of illegal drug use is authorized by the Plan. "Reasonable suspicion" is defined by the Plan as "an articulable belief that an employee uses illegal drugs drawn from specific and articulable facts and reasonable inferences from those facts." Id. at 7. It may be based upon the following criteria

1. Observable phenomena such as direct observation of drug use or possession and/or physical symptoms of being under the influence of a drug.

2. A pattern of abnormal conduct or erratic behavior.

3. Arrest or conviction for a drug-related offense or the identification of an employee as the focus of a criminal investigation into illegal drug possession use or trafficking.

4. Information provided either by a reliable and credible sources or independently corroborated.

5. Newly discovered evidence that the employee has tampered with a previous drug test.

Id. at 24. The Plan further states that although certainty is not required "mere 'hunches'" are insufficient to establish reasonable suspicion. Id. Approval for testing under these circumstances must be obtained from a second-level supervisor a the staff of Court advocates office. Id. at 25. Further a written memorandum must be prepared setting forth the facts upon which the suspicion is based the findings of the drug test and any action taken. Id. All civilian employees are subject to "reasonable suspicion" testing if the above criteria are met.

"Accident or Safety Mishap Testing" is authorized under the Plan of employees who are either involved in specified types of accidents or who "engage in on-duty job related activities that pose a danger to others or the overall operation of the Air Force." Id. at 26. The "mishaps" which have been determined to justify urinalysis testing under this rubric are defined by Air Force Regulation 127-4 which is incorporated into the Plan. See Defendants' Exhibit D. These include (a) accidents resulting in $1 million in property damage or a fatality or permanent total disability or destruction of an Air Force Aircraft (Class A Mishap); (b) accidents resulting in between $200,000 and $1 million in property damage or a permanent partial disability or the hospitalization of five or more personnel (Class B Mishap); (c) accidents resulting in between $10, 000 and $200,000 in property damage or an injury or occupational illness resulting in more than one full lost work day of eight hours (Class C Mishap); and (d) any Nuclear Weapon Mishap. Defendants' Exhibit D at 24.

The testing procedures are defined by the HHS Guidelines. See Mandatory Guidelines for Federal Workplace Drug Testing Programs 53 Fed. Reg. No. 11 970 (April 11 1988) ("HHS Guidelines"). Employees targeted for either "random" or "reasonable suspicion" testing may be ordered by their first level supervisor without prior notice to report to a "collection site" for testing. The Plan at 23. The collection site personnel is required to secure the site prior to testing to ensure the integrity and identity of the specimen. Steps to be taken include placing bluing agents in the toilet tanks and ensuring that no other source of water is available in the enclosure where urination occurs HHS Guidelines at SEC. 2(f)(1) requiring the individual tested to remove "unnecessary outer garments" and to relinquish personal belongings that "might conceal items or substances that could be used to tamper with or adulterate" the specimen id. at SEC. 2(f)(4). When the employee is ready to urinate he or she will be ordered to wash his or her hands. Id. at SEC. 2(f)(5). The monitor is then required to keep the individual under surveillance to ensure against access to any water supply soap dispenser or cleansing agents. Id.

As a general rule the individual is entitled to provide the specimen in the privacy of a stall or other partitioned area unless the collection site personnel suspects that the individual may attempt to alter or substitute the specimen provided. Id. at SEC. 2(f)(7); The Plan at 27 para. 57. Where the specimen is provided behind a closed stall or partition the collection site personnel is required to remain in the room and must "note any unusual behavior or appearance in the permanent record book." Id. at SEC. 2(f)(8-9). The employee may not flush the toilet after receiving the specimen but must instead await permission to do so from the collection site personnel. Id. at SEC. 2(f)(9).

After receiving the sample the collection site personnel must confirm that a sufficient amount of urine has been provided. Id. at SEC. 2(f)(10). The employee may be required to drink additional fluids and produce an additional sample. The monitor then measures the temperature of the sample and inspects its color and character for signs of contaminants. Id. at SEC. 2(f)12 and 14. With the approval of a higher level supervisor and upon suspicion that the individual being tested has adulterated or altered the specimen the monitor may require the individual to produce another specimen under direct supervision. Id. at SEC.(s) 2(f)(23) 2(f)(13) 2(f)(16). *fn3

The regulations also provide detailed "chain of custody" procedures. After the specimen has been collected and inspected a tamper-proof custody seal must be placed over the bottle cap and down the sides of the bottle. It must be marked with an identification label which the individual is required to initial to certify that the specimen has been collected from him or her. The collection site person is also required to record all of the identifying information in a "permanent record book" which is then signed by both the collection site person and the test individual. The collection site person must also complete a chain-of-custody form. Thereafter the specimen is to be placed in a special container sealed and shipped along with the chain-of-custody documentation to the laboratory. Id. at SEC. 2.3(h).

The HHS Guidelines mandate that urine samples be tested for marijuana and cocaine and authorizes additional testing for opiates amphetamines and phencyclidine (PCP). Id. at SEC. 2.11(a). All tests are to be initially screened by an immunoassay. Id. at SEC. 2.4(e)(1). Positive tests must then be confirmed through gas/chromatography/mass spectrometry (CC/MS) techniques. Id. at SEC. 2.4(e)(2). The regulations set forth specific cut-off levels for identifying a positive test under each procedure.

The laboratory is required to report test results to the particular agency's Medical Review Officer ("MRO") within five (5) days of receipt of the specimen. Id. at SEC. 2.4(g). When confirmed positive test is returned the tested individual is provided an opportunity to justify the result. The Plan at 28. Evidence which justifies a positive result may include (a) a valid prescription and (b) a verification from the individual's physician verifying a valid prescription. Id. If the MRO determines that there is no justification for the result it will be considered a verified positive triggering the requirement that the MRO immediately contact the PC. Id. Under the Air Force Plan confidentiality provisions the laboratory may only release test results to the MRO or the MRO staff. The Plan at 29. Results of particular drug tests may not be disclosed without prior written consent of the tested individual except to (a) the MRO (b) a treatment facility at which the individual is receiving Counseling or is otherwise participating (c) supervisory or management personnel with authority to take adverse personnel action against the employee and (d) pursuant to court order or where required by the United States Government to defend against a challenge to an adverse personnel action. Id. at 29-30. Records and information of personnel actions taken pursuant to a verified positive drug test must be kept strictly confidential with access provided only to "authorized individuals who have a 'need-to-know.'" Id. at 31. Disciplinary action resulting from a verified positive drug test ranges from a written reprimand to removal from service. The agency is required to initiate action to remove an employee from service however where the employee (a) has refused to obtain Counseling or rehabilitation through a rehabilitation program (b) has previously been found to have used illegal drugs and has not refrained from use or (c) has been found to have altered or attempted to alter a urine specimen or substitute a specimen for their own or of another employee. Id. at 20. Use of the test results for criminal purposes without the employee's consent is not permissible under the Supplemental Appropriation Act SEC. 503(e).

II

PRELIMINARY INJUNCTION STANDARDS

The purpose of a preliminary injunction is to preserve the relative positions of the parties -- the status quo -- until a full trial on the merits can be conducted. University of Texas v. Camenisch 451 U.S. 390 395 (1981). The limited record usually available on such motions renders a final decision on the merits inappropriate. Brown v. Chote 411 U.S. 452 456 (1973).

"The [Supreme] Court has repeatedly held that the basis for injunctive relief in the federal courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger v. Romero-Barcelo 456 U.S. 305 312 (1982). In the Ninth Circuit two interrelated tests exist for determining the propriety of the issuance of a preliminary injunction. Under the first test Court may not issue a preliminary injunction unless each of the following requirements is satisfied: (1) the moving party has demonstrated a likelihood of success on the merits (2) the moving party will suffer irreparable injury and has no adequate remedy at law if injunctive relief is not granted (3) in balancing the equities the non-moving party will not be harmed more than the moving party is helped by the injunction and (4) granting the injunction is in the public interest. Martin v. International Olympic Committee 740 F.2d 670 674-75 (9th Cir. 1984). Under the second "alternative" test Court may not issue a preliminary injunction unless the moving party demonstrates "either a combination of probable success on the merits and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in his favor." Id. Under this part of the alternative test even if the balance tips sharply in favor of the moving party it must be shown at an "irreducible minimum" that there is a "fair chance of success" on the merits. Id. Since a preliminary injunction is an extraordinary and drastic remedy the moving party bears a heavy burden proof on each of these elements. See Los Angeles Memorial Coliseum Commission v. National Football League 634 F.2d 1197 1203 (9th Cir. 1980). I turn to an application of these factors to the current case.

A. Probability of Success on the Merits

In their complaint the AFGE plaintiffs charged that the Air Force Civilian Drug Testing Plan violates section 2302(b)(10) of the Civil Service Reform Act of 1978 the Administrative Procedures Act 5 U.S.C. SEC. 706 and the Fourth Amendment to the United States Constitution. The NFFE complaint alleges the identical claims. Plaintiffs in both cases would appear to have abandoned their APA claims. Therefore I address only the former claims here.

1. The Civil Service Reform Act of 1978

The Civil Service Reform Act of 1978 ("C.S.R.A.") prohibits the government from removing a federal employee covered by the Act from service "only for such cause as will promote the efficiency of the service." 5 U.S.C. SEC. 7513(a). A related provision of the Act makes it a prohibited personnel practice for an employee with authority to approve personnel actions to discriminate against an employee on the basis of conduct "which does not adversely affect the performance of the employee or the performance of others." 5 U.S.C. SEC. 2302(b)(10). The federal courts have uniformly interpreted these two provisions as requiring the governmental agency to establish a "nexus" between employee misconduct either on or off-duty and the employee's ability to perform his or her job or the agency's ability to carry out its mission before adverse personnel action may be taken. Plaintiffs argue that the Air Force Civilian Drug Testing Plan violates these provisions of the C.S.R.A. and accordingly seek preliminary relief.

Plaintiffs persuasively argue that the mandatory disciplinary measures incorporated in the Air Force Plan are inconsistent with the requirements of the C.S.R.A.; the Plan requires that disciplinary proceedings be initiated against any employee who returns an unjustified positive drug test or who refuses to be tested without an individual determination that the required nexus between off-duty drug use and job performance is present. AFGE Exhibit C at 36-38. *fn4 Nonetheless they have not demonstrated that the argument constitutes a serious ground to litigate in this court. It has been repeatedly held that in enacting the C.S.R.A. Congress did not intend to create a private right of action in the district court to enforce the various substantive provisions of the statute. Borrell v. U.S. Intern. Communications Agency 682 F.2d 981 986 (D.C. Cir. 1982); Cutts v. Fowler 692 F.2d 138 140 (D.C. Cir. 1982); Schracter v. Curtis 752 F.2d 1257 1259 (D.C. Cir. 1985); Harrison v. Bowen 815 F.2d 1505 1516 (D.C Cir. 1987); Veit v. Heckler 746 F.2d 508 511 (9th Cir. 1984); Braun v. United States 707 F.2d 922 925 (6th Cir.1983). These courts have uniformly held that Congress intended the remedies provided by the C.S.R.A. to be the exclusive means to remedy violations of the Act. Although it appears that the precise question presented here has not been previously considered plaintiffs have suggested no reason to deviate from the general principal. Accordingly I must conclude that for purposes of the motion for preliminary injunctive relief plaintiffs have failed to demonstrate a likelihood of success on the merits of their statutory claim.

2. The Fourth Amendment Claims

As discussed above the Air Force Plan provides for bath random urinalysis drug testing of employees in particular job categories as well as "reasonable suspicion" and "accident/safety mishap" testing. Plaintiffs seek to enjoin all three aspects of the program as inconsistent with the Fourth Amendment. For the reasons I explain below plaintiffs have failed to demonstrate that they are likely to succeed on the merits of the claims that the random testing program and the post-accident testing of employees involved in Nuclear Class A and Class B mishaps is unconstitutional. They have however adequately demonstrated that they are likely to succeed on the merits of their claims that "reasonable suspicion" testing program as well as post-accident testing of employees involved in Class C mishaps is unconstitutional.

a. The Governing Law

The Fourth Amendment of the Constitution of the United States protects "the right of people to be secure in their persons houses papers and effects against unreasonable searches and seizures " U.S. Const. amend. IV. Even this Supreme Court has acknowledged that its purpose is to "guarantee the privacy dignity and security of persons against certain arbitrary and invasive acts by officers of the government or those acting at their discretion." Skinner v. Railway Labor Exec. Ass'n __ U.S.__ 103 L. Ed. 2d 639 657 (1989).

By its terms the Fourth Amendment applies to either "searches" or "seizures." A search cognizable under the Amendment occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." United States v. Jacobsen 466 U.S. 109 113 (1984). The Supreme Court has failed to articulate standards under which expectations of privacy may be found to be reasonable; nonetheless it has recently held that urinalysis chemical testing qualifies as a search under the Fourth Amendment. Court explained that the testing of urine intrudes upon expectations of privacy that "society has long recognized as reasonable." Skinner 103 L. Ed. 2d at 660; National Treasury Employees Union v. Von Raab 103 L. Ed. 2d 685 701 (1989). *fn5 The identification of a procedure as a search however only initiates the inquiry since "the Fourth Amendment does not proscribe all searches and seizures but only those that are unreasonable." Skinner 103 L. Ed. 2d at 661. *fn6 What Court will deem reasonable is said to depend on a close examination of the facts and circumstances surrounding the search. Id. *fn7

The Supreme Court has frequently said that except in certain well-defined circumstances a search is not reasonable unless "accomplished pursuant to a judicial warrant upon probable cause." Skinner 103 L. Ed. 2d at 664 quoting Payton v. New York 445 U.S. 573 (1980). Nonetheless when confronted with an actual case Court has just as frequently dispensed with the warrant and probable cause requirement where in the majority's view "special needs beyond the normal need for law enforcement make the warrant and probable cause requirement impracticable." Id. quoting Griffin v. Wisconsin 483 U.S. 868 (1987); and New Jersey v. T.L.O. 469 U.S. at 351. Moreover although in such circumstances the High Court has "usually required 'some quantum of individualized suspicion' before concluding that a search is reasonable " id. quoting United States v. Martinez-Fuerte 428 U.S. at 560 it is settled at least for now "that a showing of individualized suspicion is not a constitutional floor below which a search must be presumed unreasonable." Id. Instead Court has held that suspicionless searches will be upheld "in limited circumstances where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion." Skinner 103 L. Ed. 2d at 664. *fn8

Last year the Supreme Court rejected two Fourth Amendment challenges to suspicionless urinalysis chemical testing in Skinner v. Railway Labor Exec. Ass'n 103 L. Ed. 2d 639 (1989) and National Treasury Employees Union v. Von Raab 103 L. Ed. 2d 685 (1989). Although neither case involved random drug testing Court's analysis there articulates the present parameters under which this court must test the reasonableness of urinalysis searches. *fn9

At issue in Skinner was the constitutionality of Federal Railroad Administration regulations mandating blood and urine tests of employees who are involved in certain types of train accidents. Court's holding that the urinalysis testing was reasonable for purposes of the Fourth Amendment was supported by its findings that (a) the testing occurred in a medical environment which limited the nature of the intrusion (b) a diminished expectation of privacy attaches to employment in an "industry that is regulated pervasively to ensure safety " and (c) the government's "compelling" or "surpassing" interest in railway safety which in its view could not be adequately protected by testing upon individualized suspicion. Of particular relevance Court observed that railroad employees performed "duties fraught with such risks of injuries to others that even a momentary lapse of attention [could] have disastrous consequences" and were in a position to "cause great human loss before any signs of impairment became noticeable to supervisors or others." In addition Court was satisfied that the testing served a deterrent function and could provide the railroads with "valuable information about the causes of major train accidents which purposes would be frustrated by a requirement of individualized suspicion." Id. at 668.

At issue in Von Raab was the constitutionality of the U.S. Customs Service's program requiring urinalysis testing of employees seeking promotions to positions involving drug interdiction or that required the employee to carry a firearm and employees who are required to handle "classified material." In upholding the testing program with respect to the first two categories of employees Court was satisfied as in Skinner that the testing procedures as well as advance notice of the testing significantly minimized the intrusion on privacy interests wrought by the testing. Skinner at 706 n.2. Additionally Court found that employees whose jobs involve drug interdiction duties or who are required to carry a firearm "should reasonably expect effective inquiry into their fitness and probity" and thus have a diminished expectation of privacy. Id. On the other side of the balance Court was persuaded that the government had compelling interests in ensuring that front line drug interdiction personnel are "physically fit and have unimpeachable integrity " since it thought such personnel were frequently exposed to bribery and violence. The Court further found a compelling governmental interest in "public safety" implicated by employees who carry firearms and could be called upon to use deadly force. Id. Court did not pass on the constitutionality of testing employees whose duties required them to "handle classified information." Although recognizing a "compelling interest in protecting truly sensitive information from those who 'under compulsion of circumstances or for other reasons . . . might compromise such information '" id. at 709 quoting Department of Navy v. Egan 484 U.S. 518 (1988) the Court was unable to determine whether "the category defined by the Service's testing directive encompassed only those custom's employees likely to gain access to sensitive information." Id. at 710. Therefore Court remanded this issue to Court of appeals for clarification of the record.

Several general principles can be gleaned from these decisions about the permissible scope of urinalysis drug testing under the Constitution. First although the High Court has acknowledged that urinalysis drug testing constitutes a search for purposes of the Fourth Amendment the nature of the intrusion will be viewed as mitigated where the testing occurs in a clinical or other institutional setting. In Skinner for example Court emphasized that the intrusion on the plaintiffs' privacy interest was minimal since the testing occurred in a "medical environment" and because the regulations did not require the specimens to be furnished under direct observation. 103 L. Ed. 2d at 666. The Von Raab Court was also impressed as in Skinner that the specimen was to be provided in the privacy of a stall as well as the fact that tested employees were not required to disclose personal medical information unless the tests were positive. Id.

Second these cases demonstrate that a diminished expectation of privacy may be found on the part of employees who work in either heavily regulated industries where as a factual matter their personal lives are subject to intense scrutiny in the form of background checks and/or medical examinations Skinner 103 L. Ed. 2d at 666 or who by virtue of the particular demands of their chosen occupation should "reasonably expect effective inquiry into their fitness and probity." Von Raab 103 L. Ed. 2 at 706. *fn10 In Von Raab Court focused on the fact that only a limited class of employees with knowledge that a urinalysis test was a requirement for promotion were slated for testing. 103 L. Ed. 2d at 706.

Finally although the government bears the burden of demonstrating the existence of a compelling interest in testing sufficient to overcome the individual's privacy interests Von Raab 103 L. Ed. 2d at 709 these cases recognize three governmental interests as sufficiently "compelling" to justify urinalysis testing in the absence of individualized suspicion. These include protection of the public safety maintaining the integrity of the work force and the protection of "truly sensitive information" to preserve national security.

b. Random Testing

Since Skinner and Von Raab many lower federal courts have considered the constitutionality of random drug testing programs in the federal employment context. *fn11 These courts have uniformly rejected the suggestion that random urinalysis testing is per se unconstitutional. Indeed in what is so far a relatively narrow class of cases the courts have held that testing is constitutional as a matter of law. *fn12 With these limited exceptions however the guiding principle which has been applied in each case is that "the government may search its employees only where a clear direct nexus exists between the nature of the employee's duty and the nature of the feared violation." Harmon v. Thornburgh 878 F.2d 484 490 (D.C. Cir. 1989). Beyond this although the evolving body of case law provides some guidance ultimately the question of whether the government's decision to subject a given category of workers to random testing must be decided on a case-by-case basis by reference to the general principles articulated with the government bearing the ultimate burden of persuasion that such a nexus exists. See ante at p.16 n.7.

Plaintiffs first argue that the suspicionless random testing aspect of the Air Force Plan fails to pass constitutional muster in its entirety. This assertion is premised on the requirement articulated by the Supreme Court in Delaware v. Prouse that absent individualized suspicion other safeguards must be in place "to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the official in the field." 440 U.S. 648 655 (1979). They point out that in the recent case of AFGE v. Cheney No. 88-3823 DLJ (N.D. Cal. filed March 15 1990) The Court Jensen enjoined the random testing provisions included in the Navy Civilian Drug Testing Plan on this basis. I do not believe this argument has sufficient weight to justify Preliminary injunctive relief in this case.

The Navy Plan under attack in Cheney conferred on the local activity heads complete authority to determine which particular individual positions under their supervision would be subject to random drug testing by reference to generalized "justification criteria." That authority was limited only by the requirement that the testing be designed "to optimize overall deterrence." Slip op. at 31-32. Concerned that given the nature of the search involved these features of the Navy Plan vested the local activity heads with an impermissible degree of discretion Court Jensen explained:

Such vague guidelines only increase the likelihood that some activity heads/commanders who perceive a far greater need for deterrence will mandate random testing on a far more frequent basis than others perhaps to an unreasonably intrusive degree. Because the Courts have determined that no showing of an existing drug problem is required for a random testing program this additional level of local discretion cannot be tolerated.

Id.

In contrast in the Plan at bar all positions designated for random testing are predetermined by the Secretary of the Air Force and are set forth in the Plan itself. The fact that activity heads at particular Major Commands participated in selecting the TDPs does not implicate the type of discretion found objectionable by Court in Cheney where the local activity heads were granted authority to designate positions for testing on an ad hoc basis. As the government points out only the Secretary of the Air Force retains the authority to add or delete TDPs to the Plan according to the established criteria. Additionally unlike the Ivy Plan the Air Force Plan specifies a particular rate at which testing shall occur. Moreover the Plan specifically prohibits selection of employees for drug testing "on the basis of a desire to test particular individual employees " AFGE Exhibit C at 7 and instead mandates that selection for testing be based on neutral criteria such as social security numbers birthdates or the first letter of their last names. Id. Finally plaintiffs' contention that the on-site test administrators have "unfettered discretion" to expand the scope of the testing is not supported anywhere in the record. In sum the claim that the program fails because it places too much discretion in the hands of individuals is not supported by the present record.

Plaintiffs next argue that defendants cannot establish the required nexus between the asserted legitimate governmental interests and the random urinalysis testing. They premise this argument on the undisputed fact that the urinalysis test employed can neither detect present impairment nor a pattern of drug use and/or abuse. This argument formed the basis of the Ninth Circuit's conclusion that the testing required under regulations promulgated by the Federal Railroad Administration were constitutionally infirm. Railway Labor Executives' Ass'n v. Burnley 839 F.2d 577 (9th Cir.) rev'd sub nom Skinner v. Railway Labor Executives Ass'n 103 L. Ed. 2d 639 (1989). Of course this analysis was ultimately rejected by the Supreme Court in Skinner. Following Skinner the D.C. Circuit has held on two occasions that adopting such an analysis "would be tantamount to holding urinalysis testing unreasonable per se -- a conclusion inconsistent with the Supreme Court's recent teachings." NFFE v. Cheney 884 F.2d at 609-10 accord AFGE v. Skinner 885 F.2d at 896. Although I find plaintiffs' argument intuitively appealing I agree with the D.C. Circuit that this analysis was implicitly rejected by the Supreme Court in Skinner and may not be adopted here. See ante at p.18 n.9.

Finally plaintiffs seek to invalidate the random testing program on the basis that the government has failed to demonstrate a sufficient nexus between its proffered reasons for testing and the nature of the duties performed by the employees holding the various positions designated for testing. Plaintiffs acknowledge that the Plan itself offered as an exhibit by defendants in opposition to the instant motion includes a description of the specific criteria employed by the Air Force in determining the Trier I and Tier II TDPs as well as short descriptions of the job duties performed by employees holding those positions and a statement of the government's asserted reasons for testing. Plaintiffs rejoin generally that the job categories described in he Plan itself are overbroad that the government's asserted interests in subjecting these employees to random testing are conclusory and speculative and that the government is required to submit "job descriptions affidavits or any justification other than its conclusory statements contained in the Air Force Drug Testing Plan" to carry its burden of proof "for its mammoth warrantless search scheme." AFGE Reply Memorandum in Support of Preliminary Injunction at 33 (filed April 16 1990). Although plaintiffs are correct that the government bears the ultimate burden of persuasion on the issue of the constitutionality of the random testing program they ignore the fact that this is not a trial on the merits. Before Court is a motion for a preliminary injunction the purpose of which is to maintain the status quo pending a final judgment on the merits. As such plaintiffs bear the burden of demonstrating at the very least that there is a fair chance they will succeed on the merits of their claims. Martin v. International Olympic Committee 740 F.2d 670 674-75 (9th Cir. 1984).

The government has in fact articulated reasons why it believes each aspect of the testing program passes constitutional muster within the framework established by the Supreme Court in Skinner and Von Raab and their progeny. The defendants have therefore carried their initial burden of coming forward with an explanation of their reasons for subjecting each of the employees to random testing. At this stage of the proceedings the burden shifts to plaintiffs' to articulate for Court how if at all the government's asserted reasons for including each TDP in its random testing program are insufficient either as a matter of fact or law. By refusing to do so plaintiffs have attempted to shift the burden to Court to discern on its own whether the government has made its case. In a case of this magnitude and importance it would be utterly inappropriate for Court to function effectively as the plaintiffs' Counsels. Indeed due to the significance of the issues presented in this lawsuit and the profound effect the random testing program is likely to have on the plaintiff class this court specifically requested briefing from plaintiffs on these issues in its order filed April 23 1990. They declined to do so summarily declaring that they are in no better position than Court to respond to the purportedly speculative reasons proffered for the testing by defendants with respect to each job category designated for testing. This is a class action lawsuit in which the plaintiff unions represent the very employees who are employed in each of the TDPs subject to random testing. They are therefore unquestionably in a position to articulate for the court reasons why the government's assertion of a nexus between the TDPs and a legitimate governmental interest fails to meet the constitutional standard. Thus although a cursory review of the materials presented to Court suggests that the government will not prevail at trial with respect to testing of certain of the TDPs *fn13 given the state of the record I conclude that plaintiffs have failed to demonstrate that they are likely to succeed on the merits.

c. Reasonable Suspicion Testing

Plaintiffs next contend that the "reasonable suspicion testing" aspect of the program is violative of the Fourth Amendment to the extent that it permits testing on the basis of suspicion of off-duty conduct without any individualized suspicion of on-duty drug use or impairment. Plaintiffs contend that unless independent reasons exist to tie off-duty drug use to on-duty conduct the government cannot demonstrate a compelling interest sufficient to justify the intrusion on the tested individual's privacy interest. Thus they seek to enjoin the "reasonable suspicion" aspect of the Air Force Plan if based on criteria other than reasonable suspicion of on-duty drug use or on-duty drug-related impairment supported by (1) evidence of specific personal observations concerning job performance appearance behavior speech or bodily odors of the employee; or (2) hearsay information received from an unidentified source or sources and corroborative evidence from a manager or supervisor with training and experience in the evaluation of drug-induced impairment. The government counters that it has an interest in maintaining the integrity of its workforce generally and is therefore entitled to require a drug test whenever it suspects illegal drug use whether on-duty or off.

The constitutionality of "reasonable suspicion" testing programs identical to the one at bar has previously been considered in the context of the drug testing programs promulgated by the Department of Education AFGE v. Cavasos 721 F. Supp. 1361 (D.D.C. 1989); Department of the Navy AFGE v. Cheney No. 88-3823 (N.D. Cal. March 15 1990); and the Department of Health and Human Services; AFGE v. Sullivan No. 88-3594 HHG (D.D.C. March 2 1990). For the reasons articulated by Court Green in the Sullivan case I conclude that plaintiffs herein are likely to succeed on the merits of their claim that the "reasonable suspicion" testing authorized by the Air Force Plan cannot be reconciled with the requirements of the Fourth Amendment to the extent that testing is triggered by off-duty conduct rather than on-the-job behavior.

d. Accident/Safety Mishap Testing

Finally plaintiffs seek a preliminary injunction enjoining the Accident/Safety Mishap provisions of the Air Force Plan. As described above employees who have been involved in an accident involving nuclear weapons or which entails more than $ 10 000 in property damage and/or physical injuries that would at a minimum cause an employee to lose a whole workday may be tested. Plaintiffs contend that this aspect of the program exceeds the narrow parameters established for this type of testing in the Supreme Court's decision in Skinner.

In Skinner the Supreme Court held that post-accident testing of the type at issue here was constitutionally permissible following a "major train accident or one involving (a) a fatality (b) the release of hazardous material accompanied by an evacuation or a reportable injury or (c) damage to railroad property of $500,000 or an "impact accident" involving a reportable injury or $50,000 in property damage or a train accident involving a fatality to any on-duty railroad employee. Skinner 103 L. Ed. 2d at 654. The Class A and Class B Mishaps which may trigger testing under the Air Force Plan are indistinguishable from the triggering events in Skinner in that each involves significant property damage and/or serious injury. Similarly the nuclear weapon mishaps included in the Plan portend equally serious consequences. I therefore conclude that plaintiffs are unlikely to succeed on the merits of their claim that post-accident testing of employees under these criteria violates the Fourth Amendment.

The same cannot be said with respect to testing of employees involved in Class C mishaps. Unlike the testing population presented in Skinner - railway workers employed in an industry heavily regulated for safety -- there is no evidence before Court that the entire civilian Air Force population subject to testing under these provisions of the program can be said to have diminished expectation of privacy. See Von Raab 103 L. Ed. 2d at 706 (government employees in general do not have a diminished expectation of privacy). The diminished expectation of privacy of railroad employees perceived by the Supreme Court was critical to its determination that post-accident suspicionless testing was constitutionally permissible in that case. *fn14

The governmental interest in deterring serious accidents which justified suspicionless post-accident testing in Skinner does not appear to be presented by the Class C mishaps described by Air Force Regulation 127-4. Unlike the train workers who were subject to post-accident testing in Skinner there is nothing before this court to justify the belief that Air Force employees generally perform "duties fraught with such risk of injury to others that even a momentary lapse of attention can have disastrous consequences." Skinner 103 L. Ed. 2d at 667. As described by the relevant Air Force Regulations Class C mishap involve only minor physical injury and minimal property damage. Thus the government's interest in testing employees following accidents of this character appears to be significantly weaker.

On balance I conclude that defendants' interests in testing employees following Class C mishaps does not outweigh the privacy expectations of plaintiffs. See ante at p.16 n.7. For these reasons I conclude that plaintiffs are likely to succeed on the merits of their claim that suspicionless drug testing of employees involved in Class C mishaps as defined by the Plan violates the Fourth Amendment.

B. Irreparable Injury/Balance of Hardships

It is established that the violation of the constitutional right to be free from unreasonable searches and seizures protected by the Fourth Amendment causes irreparable harm where monetary damages could not remedy the constitutional violation. Zepeda v. INS 753 F.2d 719 727 (9th Cir. 1983); see also LaDuke v. Nelson 762 F.2d 1318 1330 (9th Cir.) modified on other grounds 796 F.2d 309 (9th Cir. 1986). Urinalysis drug testing is an invasive degrading and humiliating procedure and the injury inflicted by a constitutional violation of this character cannot be remedied by damage award.

This court finds that the balance of hardships clearly tips in plaintiffs' favor. Plaintiffs have demonstrated that there is not a well-documented drug problem within the Air Force's Civilian work force . Moreover nearly four years have passed since President Reagan issued Executive Order No. 12564 directing executive agency heads to establish drug testing programs such as the one at issue in this case. The Secretary of the Air Force's decision to delay implementation of its Civilian Drug Testing Plan for such a significant period of time together with the apparent lack of a drug problem belies any suggestion that harm would befall the defendants by the issuance of a preliminary injunction.

C. Conclusion

For the foregoing reasons plaintiffs' motions for preliminary relief are DENIED with respect to the random testing and post-accident safety mishap testing of employees following Nuclear Class A and Class B mishaps. The motion is GRANTED with respect to the reasonable suspicion testing and post-accident testing of employees following Class C mishaps.

III

ORDER

For the reasons set forth above IT IS HEREBY ORDERED as follows:

1. The temporary restraining order filed June 20 1990 is DISSOLVED.

2. Defendants their subordinates and employees are hereby RESTRAINED from implementing the reasonable suspicion provisions of the Department of Air Force Civilian Drug Testing Plan to the extent that such testing is based upon criteria other than reasonable suspicion of on-duty drug-related impairment supported by (1) evidence of specific personal observations concerning job performance appearance behavior speech or bodily odors of the employee; or (2) hearsay information received from an unidentified source or sources supported by corroborative evidence from a manager or supervisor with training and experience in the evaluation of drug-induced impairment.

Defendants their subordinates and employees are hereby RESTRAINED from implementing the "Accident or Safety Mishap Testing" pursuant to Chapter 55 of the Air Force Drug Testing Plan of any Air Force civilian employee in an AFGE or NFFE bargaining unit unless such employee is involved in an "Accident or Safety Mishap" with the severity of A B or Nuclear Mishap as defined by Air Force Regulation 127-4.

 
Notes:

*fn1 The AFGE complaint was initially filed in this court on September 19 1989. The NFFE complaint was originally filed in the Northern District of California on February 22 1990. The action was transferred to the Eastern District of California by order filed March 9 1990 and related to the AFGE action by order filed April 24 1990. Following a status conference on April 30 1990 the two actions were consolidated for all purposes by order filed Nay 1 1990. Additionally the AFGE plaintiffs noticed an unopposed motion to amend their complaint on this court's April 23 1990 law and motion calendar which motion is now granted.

*fn2 The former have been dubbed "Tier-one" positions and the latter "Tier-two" positions.

*fn3 Reason to believe that a particular individual may alter or substitute the specimen is established in the following circumstances: (a) the individual is being tested under the reasonable suspicion or accident/safety mishap part of the Plan; (b) facts and circumstances suggesting that the individual is an illegal drug user; (c) facts and circumstances indicating the individual is under the influence of drugs at the time of the test; (d) the individual has previously been found to be an illegal drug user by the Air Force; (e) facts and circumstances indicating that the individual is capable of tampering or altering urine samples; (f) the individual has previously tampered with a sample; or (g) the temperature of the sample is outside the acceptable range as established by HHS Guidelines.

*fn4 The Air Force Plan presumes a nexus between off-duty drug use and job performance for all employees holding Tier I and Tier II positions. The Ninth and Fifth Circuits have both held that a per se presumption of nexus is inconsistent with the statutory scheme by shifting to the employee the burden of producing evidence that the off-duty conduct does not affect the efficiency of the service. See D.E. v. Department of Navy 721 F.2d 1165 1168 (9th Cir. 1983); McCleod v. Department of the Army 714 F.2d 918 (9th Cir. 1983); Bonet v. U.S. Postal Service 661 F.2d 1071 (5th Cir. 1981). Although the Federal Circuit has rejected the suggestion that the presumption of a nexus is per se inconsistent with the C.S.R.A. it has limited the circumstances in which the required nexus may be presumed to off-duty conduct that is "so egregious . . . it is reasonable to conclude that it would 'relate directly to the employee's ability to perform approved tasks or to the agency's ability to fulfill its assigned mission.'" Graybill v. U.S. Postal Service 782 F.2d 1567 1574 (Fed. Cir.) cart. denied 479 U.S. 963 (1986). Since the Air Force Plan presumes a nexus between off-duty drug use and job performance for all employees subject to testing it would appear that the mandatory discipline requirement is inconsistent with either interpretation of the C.S.R.A.

*fn5 Given the High Court's ruling it is unnecessary to determine whether the procedures authorized by the Plan are also a seizure. Plaintiffs have not suggested that assuming a seizure its constitutionality would be measured by a standard different than that applied to the search.

*fn6 This mode of analysis leaves us with what sob might think is an odd articulation of Fourth Amendment principles namely that an invasion of an expectation of privacy which society is prepared to recognize as reasonable accomplished without either a warrant or justification based upon conduct is not unreasonable under the Constitution because the search served outweighing social interests and thus was itself reasonable.

*fn7 The fact that despite its enormous activity relative to searches in the last several years the High Court has only found one search to violate the Fourth Amendment suggests that although it is said that resolution of Fourth Amendment questions turns on a close examination of the facts and circumstances who balances may be of greater importance. Only the rigorous application of articulated standards rather than ad hoc balancing exercises insures a regimen of law rather than of men. Query then whether matters of constitutional dimension should ever turn on balancing tests when the scale can never be objectively examined.

*fn8 On the basis of the recent past history of Fourth Amendment jurisprudence one cannot help but suspect that those "limited circumstances" will soon be difficult to circumscribe. When the origins of the Fourth Amendment are recalled the modern evolution of the jurisprudence interpreting it is nothing short of disturbing. The Fourth Amendment represented a response to the British practice of obtaining general writs of assistance empowering revenue agents "in their discretion to search suspected places for smuggled goods." Boyd v. United States 116 U.S. 616 625 (1886). In Boyd the Supreme Court described these general writs of assistance as "the worst instrument of arbitrary power the most destructive of English liberty and the fundamental principles of law that was ever found in an English law book [by placing] the liberty of every man in the hands of every petty officer." Id. Indeed as the Boyd Court reports debate over the writs of assistance "was perhaps the most prominent event which inaugurated the resistance of the colonies to the oppression of the mother country. As John Adams reputedly explained: "Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born." Id. Suspicionless searches based on governmental interests that would be frustrated by the warrant and probable cause requirement are nothing but general warrants. Apparently the Supreme Court believes the white coats can do what red coats could not.

*fn9 I note only in passing that the members of the Supreme Court owe as much fidelity to the principles of the Fourth Amendment as this court owes to the High Court's interpretation of those principles.

*fn10 This mode of analysis leaves us with what some might think is a strange standard for Fourth Amendment protection namely that an invasion of an expectation of privacy that society is prepared to recognize as reasonable is not unreasonable although accomplished without a warrant or justification based on conduct if that expectation has been diminished by society's evaluation of the mode of invasion or by virtue of an evaluation of the extent of the subjective expectation both deduced without evidence.

*fn11 Harmon v. Thornburgh 878 F.2d 484 (D.C. Cir.) cert. denied 110 S. Ct. 865 (1990) (random testing of Department of Justice Counsels); National Federation of Fed. Employees v. Cheney 884 F.2d 603 (D.C. Cir.) cert. denied 110 S. Ct. 864 (1990) (Department of Army Regulations enjoined in part and upheld in part); American Federation of Gov't Employees v. Skinner 885 F.2d 884 (D.C. Cir.) cert. denied 110 S. Ct. 1960 (1990) (Department of Transportation regulations); Taylor v. O'Grady 888 F.2d 1189 (7th Cir. 1989) (random testing of city correctional officers); Thompson v. Marsh 884 F.2d 113 (4th Cir. 1989) (random tasting of civilian employees at chemical weapons plant upheld); Guiney v. Roache 873 F.2d 1557 (1st Cir.) cert. denied 110 S. Ct. 404 (1990) (random testing of city police officers upheld); Hartness v. Bush 712 F. Supp. 986 (D.D.C. 1989) (Executive Office f the President and GSA); American Federation of Government Employees v. Cavasos 721 F. Supp. 1361 (D.D.C. 1989) (Department )f Education regulations); American Postal Workers Union v. Frank 87-1264 MC (filed 11/21/89) (United States Postal Service Regulations enjoined); Connelley v. Horner 88-5085 DLJ (filed 6/15/89) (U.S. Office of Personnel Management program enjoined); AFGE v. Sullivan 88-3594 HHG (filed 3/2/90) (Department of Health and Human Services regulations); AFGE v. Cheney 88-3823 DLJ (filed 3/15/90) (Department of Navy regulations).

*fn12 For example Court have uniformly held that employees who hold top secret security clearances may be subject to random drug screening on a categorical basis without a probing inquiry into whether particular employees holding such a clearance actually have access to top secret information. See e.g. Harmon v. Thornburgh 878 F.2d 484 492 (D.C. Cir. 1989).

*fn13 For example the Plan includes nurses practical nurses And nursing assistants in the Tier I categories on the basis that these employees had access to controlled substances and further that "use of drugs by nurses can lead to the inability to render life-saving assistance." AFGE Exhibit C Appendix A at 36. There Is no indication in the case law that mere access to controlled substances without a concomitant risk to the safety or integrity of the employee as a result of that access would satisfy the constitutional standard. See Von Raab 103 L. Ed. 2d at 704. Additionally although it may be true that nurses perform responsibilities related to "life saving assistance " it is unlikely that defendants will be able to prove that the safety interests implicated by the duties performed by employees in this category "present a risk of injury to others so great that even a momentary lapse of attention can have disastrous consequences." Skinner 103 L. Ed. 2d at 667. There is nothing in the current record however to cast doubt upon the legitimacy of the Government's contention that the required nexus is present.

*fn14 Court's determination of a diminished expectation of privacy among railroad workers was arrived at apparently without any evidentiary basis. Thus I must conclude that the notion is legal rather than factual in character. This mode of analysis leaves us with what some might think is a remarkable Fourth Amendment principle namely that the invasion of an expectation of privacy that society is prepared to recognize as reasonable as a matter of law will be viewed as not unreasonable under the Constitution although accomplished without a warrant or a justification based on conduct where the person enjoying that expectation has as a matter of law a diminished expectation of privacy. See ante at p.16 n.6 and p.21 n.10. At some point one must question whether there are any limits to sophistry.