the employer's legitimate concern, in that case, safety. See 833 F.2d 340-41.
The Administration has continued to press its program to test all federal workers in "sensitive" jobs. On May 3, 1988, 42 federal agencies sent detailed plans to Congress calling for random testing of 345,528 federal workers. U.S. Details Plans for Drug Tests, Wash. Post, May 4, 1988, at Al, Col 6. The testing plan of the Federal Bureau of Prisons of the United States Department of Justice already has been struck down as unconstitutional. American Federation of Government Employees v. Meese, 688 F. Supp. 547 (N.D. Cal. 1988). The Bureau of Prisons designated all of its 13,000 employees, including administrators, secretaries, and other office workers, as "sensitive" and subject to random testing. 688 F. Supp. at 548-549. In entering a preliminary injunction, Senior Judge Weigel distinguished between government attempts to deter drug use in the federal workplace and efforts to deter drug use in general. "The government may certainly take an interest in deterring drug use throughout society, but that interest cannot justify random testing. Otherwise, mass testing of the entire population of the nation would be justified. . . . The government, the nation's largest employer, may not hide behind that role in attempting to justify intrusive searches of innocent citizens who happen to be in its employ, absent some compelling, articulable interest of the government qua employer." Id. at 554-555 (citing National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 943 n.12 (1987).
On June 27, 1988, the Justice Department announced plans to test 1,800 of its 6,500 attorneys and other "sensitive" employees working in the Washington, D.C., area in as soon as 60 days. Justice Dept. Sets Employee Drug Tests, Wash. Post, June 28, 1988, at A13, col. 1. The following day 42 of those to be tested filed suit challenging the plan. Harmon v. Meese, No. 88-1766 (D.D.C. filed June 28, 1988).
A final legal development is worth noting. Until this year, the government could argue that the circuits addressing the issue had upheld drug testing without individualized suspicion. See Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335 (1987); National Treasury Employees Union v. Von Raab, 816 F.2d 170 (5th Cir. 1987), aff'd in part and vacated in part, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989); McDonell v. Hunter, 809 F.2d 1302 (8th Cir. 1987); Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.), cert. denied, 479 U.S. 986, 107 S. Ct. 577, 93 L. Ed. 2d 580 (1986). In 1988, however, two circuits struck down testing not based on individualized suspicion. First, the Ninth Circuit struck down post-accident testing of railroad workers absent a reasonable suspicion that a test will reveal evidence of current drug or alcohol impairment. Railway Labor Executives' Association v. Burnley, 839 F.2d 575 (9th Cir.), rev'd, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1988). More recently, the Sixth Circuit struck down mandatory urinalysis testing of fire fighters, Lovvorn v. City of Chattanooga, 846 F.2d 1539 (6th Cir. 1988), and police officers, Penny v. Kennedy, 846 F.2d 1563 (6th Cir. 1988).
An appropriate Order entering final judgment and a permanent injunction accompanies this Memorandum Opinion. The only issue remaining is whether the Court should stay the permanent injunction pending appeal. Most regrettably, the D.C. Circuit offered no guidance when it stayed the preliminary injunction pending appeal. The motions panel revealed none of its reasoning when it stated, "We conclude that a stay is warranted in this case. See WMATC v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843-44 (1977)." No. 88-5080 (D.C. Cir. Mar. 30, 1988) (order granting stay pending appeal). Such terseness leaves the Court and the parties without insight into the motions panel's logic in a matter where this Court has found an ongoing violation of employees' constitutional rights with possibly severe effects on their careers. This uncertainty is even more unfortunate because it was so avoidable.
The Court can only assume that the Court of Appeals has determined that the Army civilian drug testing program should go forward while this case is appealed.
The Court fully explored the factual and legal basis of its holding in its March 1, 1988, Memorandum Opinion; while subsequent developments have reinforced the holding, they are not sufficient for the Court to say that today's Memorandum Opinion stands on different footing than its prior decision. Accordingly, the Court shall stay the permanent injunction pending appeal.
Thomas F. Hogan
United States District Judge
DATED: July 6th, 1988