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December 8, 1988

RICHARD LYNG, Secretary of Agriculture, et al., Defendants

Thomas A. Flannery, United States District Judge.

The opinion of the court was delivered by: FLANNERY



 Plaintiffs National Treasury Employees Union ("NTEU") and National Association of Agricultural Employees ("NAAE"), the collective bargaining representatives of various employees of the United States Department of Agriculture ("USDA"), have moved for a preliminary injunction against certain portions of the USDA's Drug Free Workplace Program (the "program" or "plan"). Specifically, plaintiffs challenge the provisions of the USDA's program that require random urinalysis testing of employees in so-called "testing designated positions" and "reasonable suspicion" urinalysis testing of all employees not in safety related positions. The plaintiffs argue that the proposed testing is an unconstitutional infringement of their members' Fourth Amendment rights against unreasonable searches and seizures.

 The various defendants *fn1" argue collectively that the USDA's compelling interests in ensuring public safety, guaranteeing the security of confidential government information, and establishing and maintaining integrity of the nation's drug interdiction efforts justify the challenged urinalysis testing programs. They argue that the employees have a diminished expectation of privacy in their jobs and that these diminished privacy interests are not unreasonably infringed by the challenged urinalysis testing provisions.

 The challenged urinalysis testing provisions are not required in conjunction with any regular employment-related medical examinations. Instead, the program requires that those employees designated for testing, under either of the challenged provisions of the plan, report to a collection site usually within two hours of notification, where they will be required to produce a urine sample under the direct or indirect observation of a collection monitor. Direct observation of the production of a urine specimen is mandatory for all "reasonable suspicion" urinalysis testing under the USDA plan.

 Because the defendants have failed to demonstrate, under the applicable case law, that the proposed random urinalysis testing is justified at its inception, the court enjoins the implementation of that portion of the USDA's plan. However, the court finds that the proposed "reasonable suspicion" urinalysis testing of employees in non-safety related positions, if based on reasonable, articulable, and individualized suspicion that a specific employee may be under the influence of drugs, satisfies the appropriate standard of reasonableness under the Fourth Amendment. The court thus denies plaintiffs' motion for a preliminary injunction of the USDA's proposed "reasonable suspicion" testing, as clarified. *fn2" The basis for these rulings is set out below.


 2. The Parties

 NTEU is the exclusive bargaining representative of approximately 140,000 federal employees, including 812 employees of the USDA's Food and Nutrition Service ("FNS"). NTEU is the collective bargaining representative of two positions (and a total of five employees) that will be subject to random urinalysis testing under the USDA's program. *fn3" All of the employees represented by NTEU within the FNS will be subject to reasonable suspicion urinalysis testing. The defendants in this case are President Ronald Reagan, USDA Secretary Richard Lyng, and Anna Kondratus, Administrator of the Food and Nutrition Service.

 NAAE is the exclusive collective bargaining representative of non-management employees of the Plant Protection and Quarantine ("PPQ") program within the USDA's Animal and Plant Health Service ("APHIS"). Of the approximately 1,000 nationwide non-management PPQ employees subject to random urinalysis testing, over 600 are members of NAAE. Approximately 750 non-management PPQ employees represented by NAAE will be subject to both random and reasonable suspicion urinalysis testing under the USDA's plan. The defendants are USDA Secretary Richard Lyng and Dr. James Glosser, Administrator of the USDA's Animal and Plant Health Inspection Service.

 2. The USDA's Plan

 On September 15, 1986, President Reagan issued Executive Order 12564, entitled "Drug-Free Federal Workplace." 51 Fed. Reg. 32,889 (1986). The order authorized the head of each executive agency to develop a plan to achieve the objective of a drug free workplace. E.O. 12564 required these agency plans to include policy statements, employee assistance programs, supervisory training, and testing to identify illegal drug users. Id. at 32, 890. The testing provisions included requirements for voluntary and random testing for individuals in "sensitive," testing designated positions and authorization for reasonable suspicion, post-accident or unsafe practice, and applicant testing. *fn4" The designation of employees in sensitive positions and the extent of testing was left to the discretion of the individual agency heads.

 Pursuant to this authority, the USDA issued the details of its Drug Free Workplace Program on August 8, 1988. Agriculture Dep't Pers'l Manual Supplement 792-3. ("DPM Supp."). Citing its role in establishing policies which affect every aspect of agriculture, the USDA noted that it was crucial that these policies be developed and implemented in a drug-free environment. Id. at 1. Although the department acknowledged that the incidents of illegal drug use impacting upon its mission were low "when compared with the number of employees," id., it nonetheless implemented a program providing for employee counseling and assistance, supervisory training, employee education, and urinalysis testing on both a random basis and in each of the areas authorized by E.O. 12564. *fn5"

 The USDA had already issued a general notice on July 1, 1988, to all employees that the urinalysis testing provisions of its Drug-Free Workplace Program would commence in 60 days or later. The July 1, 1988, announcement identified the major provisions of the program and specified the various employee categories subject to urinalysis testing. USDA Sec'y Mem. 4430-1 at 1-2. In addition, those employees in testing designated positions (TDPs) individually received notice on August 16, 1988, that random urinalysis testing would commence no earlier than 30 days later. USDA Ass't Sec'y for Admin's 30-Day Notice Memo. Due to a series of administrative complications, testing had not begun before the pending motions became ripe for decision by this court. *fn6"

 3. The Collection Procedures

 The testing procedures under the USDA's plan adhere to the technical guidelines for drug testing programs promulgated by the Department of Health and Human Services ("HHS"). *fn7" A basic outline of the applicable procedure follows. An individual in a testing designated position will be selected for testing on some neutral basis like social security numbers. Employees selected on this basis are directed to a collection site usually within two hours of selection.

 Upon arrival at the designated site, an employee will be met by a collection monitor of the same sex. The collection monitor is responsible for ensuring the integrity of the specimen collection procedures. In addition to securing the collection facility itself, *fn8" the collection monitor is required to verify proper photo identification, require the employee to remove any unnecessary outer garments that might conceal items or substances that could be used to adulterate a urine specimen. *fn9" After washing his or her hands, the employee is directed to a stall or other enclosure where the sample is to be produced.

 The collection monitor is directed to note any unusual behavior or appearance in a permanent record book both before and during the production of a sample. Collection monitors are authorized to directly observe the production of a sample in instances where they have reason to believe the individual employee may alter or substitute the specimen provided. *fn10" The USDA program requires direct observation of sample production for all employees subject to testing for reasonable suspicion of drug use or impairment.

 4. The Testing Procedure

 In compliance with HHS guidelines, the USDA program calls for a two level testing process of urine specimens. *fn11" A sample will initially be screened using the radioimmunoassay (RIA) method with initial cutoff levels specified in the HHS regulations. Testing will be conducted in five drug categories: marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). *fn12" All specimens identified as positive on the initial test shall be confirmed using the gas chromatography/mass spectrometry (GS/MS) technique at the same cut-off levels.

 Only confirmed positive test results will be reported to the Medical Review Officer (MRO) at the USDA. Any employee with a positive test result will then be given the opportunity to present evidence to justify the result before the MRO. *fn13" If the MRO determines there is no justification for the positive result, *fn14" the now verified positive test result will be reported to the USDA's Employee Counseling Services Program Manager and to the management official empowered to recommend or take disciplinary action. *fn15"

 Under the USDA program, an employee with a verified positive urinalysis test will be subject to "the full range of disciplinary actions." While the severity of the disciplinary actions will depend on the circumstances of the individual case, a proposal for some disciplinary action is required. The exclusive list of alternatives includes reprimand, enforced leave, suspension without pay, reduction in grade or rate of pay, or removal. *fn16" Removal from service is mandatory for the failure to obtain counseling following a finding that an employee is using illegal drugs, has refused to be tested, or failed to refrain from illegal drug use after an earlier finding of such use. *fn17"

 5. The Testing Designated Positions

 Under the terms of E.O. 12564, the Secretary has apparently determined that all the sensitive positions identified in the Department will be designated for testing (TDPs). The plan calls for 100% testing of all TDPs in the first year with an annual testing rate of 25% thereafter.

 The TDPs at issue here are two FNS computer specialists, five FNS motor vehicle operators, and approximately 761 GS 436 (non-management) PPQ officers. According to the plan, the computer specialists have been designated because of the government's interest in preserving internal security. The plan notes that these specialists are significantly involved in "critical" USDA missions and pose a "relatively high" risk of effecting grave damage or realizing significant personal gain. *fn18" Motor vehicle operators have been selected because of the government's interest in safety due to the risks they pose to passengers, the public, and to property and because "the use of illegal drugs is inconsistent with the responsibility of safe vehicle operation." *fn19" The PPQ officers were selected to preserve the integrity of the government's drug interdiction efforts due to the "not uncommon" instances when they find drugs in the course of performing their responsibilities of ensuring that no prohibited agricultural products or pests enter the country. According to the plan, drug usage by these employees could reduce their effectiveness and compromise the success of the drug interdiction effort through blackmail and bribery. *fn20"

 6. Reasonable Suspicion Testing

 The program also provides that all USDA employees are subject to reasonable suspicion urinalysis testing. The trigger for such testing is the suspicion that an employee "is using illegal drugs." DPM Supp. at 16. The plan identifies a non-inclusive list of factors upon which reasonable suspicion of such illegal use may be based. These factors are: 1) observable phenomena, such as direct observation of drug use or possession or physical symptoms of being under the influence of a drug; 2) a pattern of abnormal 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 reliable and credible sources or independently corroborated; 5) newly discovered evidence that the employee has tampered with a previous drug test. Id.

 Initial responsibility for determining reasonable suspicion under the USDA plan rests with supervisors or management employees, who are charged with gathering all information, facts and circumstances supporting their suspicion. This evidence is then presented to an agency personnel officer who has the responsibility to determine if reasonable suspicion exits. *fn21" The program calls for the personnel officer to promptly prepare a written record showing the circumstances which supported the basis for reasonable suspicion. *fn22"

 Although the exact procedure to be followed once a determination to test on the basis of reasonable suspicion is not clear, the employee in question will apparently be directed to report to a designated site where a urine sample will be required. As noted above, a collection monitor is required to visually observe the production of a specimen in all cases of reasonable suspicion drug testing.


 The Fourth amendment provides:


The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 It applies to searches and seizures by government employers of the private property of their employees. O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 1497, 94 L. Ed. 2d 714 (1987) (plurality opinion); see id. at 1498 ("individuals do not lose Fourth Amendment rights merely because they work for the government instead of private employer"); id. at 1497 ("it would be 'anomalous to say that the individual and his private property are protected only when the individual is suspected of criminal behavior'") (quoting Camara v. Municipal Court, 387 U.S. 523, 528, 18 L. Ed. 2d 930, 87 S. Ct. 1727, 1730 (1967)).

 Fourth Amendment jurisprudence involves a two step analysis. First, a reviewing court must determine whether the conduct in question constitutes a search and seizure by infringing on an individual's reasonable expectation of privacy. For present purposes, this inquiry is settled: "compulsory urinalysis is a 'search and seizure' in this Circuit." National Federation of Federal Employees ("NFFE") v. Carlucci, 680 F. Supp. 416, 430 (D.D.C.) (citing Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335, 339 (D.C. Cir. 1987)), stay pending appeal, 690 F. Supp. 46 (D.D.C. 1988); Harmon v. Meese, 690 F. Supp. 65, 67 (D.D.C), cert. denied, 488 U.S. 934, 102 L. Ed. 2d 345, 109 S. Ct. 328, 57 U.S.L.W. 3313 (1988); American Federation of Government Employees ("AFGE") v. Dole, 670 F. Supp. 445, 447 (D.D.C. 1987). *fn23"

 A determination that the governmental action constitutes a search or seizure under the Fourth Amendment is only the start of the inquiry, however, because "the [Fourth] Amendment only prohibits 'unreasonable' searches and seizures . . . ." AFGE v. Dole, 670 F. Supp. at 447. And, as the Supreme Court recently noted, "'What is reasonable depends on the context within which a search takes place.'" O'Connor, 107 S. Ct. at 1499 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S. Ct. 733, 740, 83 L. Ed. 2d 720 (1985)).

 The consideration of the context in which a search takes place yields the appropriate standard of reasonableness to be applied under the Fourth Amendment. A determination of this standard requires "balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110 (1983).

 1. Random Urinalysis Testing

 The customary standard of reasonableness under the Fourth Amendment is that a search be conducted pursuant to a warrant supported by probable cause. *fn24" "It is settled . . . that 'except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it is has been authorized by a valid search warrant.'" O'Connor, 107 S. Ct. at 1499 (quoting Mancusi v. De Forte, 392 U.S. 364, 370, 88 S. Ct. 2120, 2125, 20 L. Ed. 2d 1154 (1968)).

 Although the warrant and probable cause requirements are the customary standards of reasonableness, neither "is an irreducible requirement of a valid search and seizure." NFFE v. Carlucci, 680 F. Supp. at 430. The Supreme Court has recognized that although both the warrant and probable cause requirements "bear on the reasonableness of a search, . . . in certain limited circumstances neither is required." New Jersey v. TLO, 469 U.S. at 340, 105 S. Ct. at 742 (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 297, 93 S. Ct. 2535, 2541, 37 L. Ed. 2d 596 (1973) (Powell, J., concurring)).

 The Supreme Court has even validated searches without any form of individualized suspicion. T.L.O., 469 U.S. at 342 n.8, 105 S. Ct. at 743 n.8 (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 560-61, 96 S. Ct. 3074, 3084, 49 L. Ed. 2d 1116 (1976) (permitting vehicles to be stopped at a fixed checkpoint near the border without any suspicion to believe the particular vehicle contains illegal aliens)). The Court has recognized, however, that "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure," id., and that exceptions are "appropriate only where the privacy interests implicated by a search are minimal . . . ." Id.

 Judge Hogan clarified the specific Fourth Amendment implications of government sponsored, random urinalysis testing at issue before him and before this court. He noted that "random testing, of course, is based on no suspicion whatsoever, and there exists no grounds at all for suspecting that the search represented by urinalysis will turn up evidence [of job related drug use or impairment]." 680 F. Supp. at 431. Thus, in the continuum of the Fourth Amendment, the USDA's random drug testing program is at the outer most edge, or the "envelope" of legitimacy.

 In fashioning a standard to govern the legality of searches not supported by a warrant or probable cause, the Supreme Court has used a two-pronged inquiry: "first, one must consider 'whether the action was justified at its inception,' Terry v. Ohio, 392 U.S. [1] at 20, 88 S. Ct. [1868] at 1879 [20 L. Ed. 2d 889] [(1968)]; second one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place,' ibid. [sic]" T.L.O., 469 U.S. at 341, 105 S. Ct. at 742-43.

 The District of Columbia Circuit applied this standard to a suspicionless drug testing program instituted by the District of Columbia's Public School System in Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335 (D.C. Cir. 1987). The testing program was implemented in the School System's Transportation Branch in response to a perceived "drug culture" among the Branch's employees, including evidence of "repeated incidents of bizarre or dangerous drug-related behavior by drivers and attendants while on duty," as well as instances where "syringes and bloody needles were found in restrooms used by Transportation Branch employees." *fn25"

 After other attempts to deal with the problem had yielded only "mixed results," id. at 336, the School System announced that mandatory urinalysis testing for drugs would be required of all employees required to undergo medical exams for work-related purposes. *fn26" The urinalysis testing was thus implemented as part of an annual, employment-related medical examination and samples were to be provided in the privacy of a restroom. Id. at 337. In a suit brought by a bus attendant terminated when her urinalysis test was positive for THC metabolites (indicating marijuana use), a district court found in favor of plaintiff and, among other things, enjoined the Transportation Branch from conducting any urinalysis testing without probable cause. *fn27"

 The D.C. Circuit reversed the district court's injunction requiring probable cause before conducting any urinalysis testing, finding that it was not unreasonable to require drug testing where safety interests were high, the testing was conducted as part of a routine, reasonably required, employment-related medical examination, and the test employed is one that has a sufficient nexus to the employer's legitimate safety concerns. Id. at 341. After noting that the suspicionless urinalysis testing constituted a search under the Fourth Amendment, id. at 338, the D.C. Circuit proceeded to employ the two-pronged inquiry described above *fn28" by balancing "the intrusion on the individual's Fourth Amendment interests, i.e., the privacy expectations which society recognizes as legitimate, against the governmental interest[s] involved . . . ." Id.

 In striking this balance, the court made a number of findings pertinent here. First, the court noted that there were "strong privacy interests" involved in urinalysis testing. Id. at 339. The court intimated that there were two separate components to these privacy interests: those interests surrounding the production of the sample itself *fn29" and those interests in the analysis of the specimen produced. Although the first interest was not seriously intruded upon because the samples were provided in private during an employment related medical exam, the court found that the second component was significantly affected by urinalysis testing: "because drug tests often furnish information about employee activities occurring outside of working hours, such tests may provide Government officials with a periscope through which they can peer into an individual's behavior in her private life, even in her own home." *fn30"

 Because there were strong privacy interests involved, the D.C. Circuit noted that they could be outweighed by only "strong governmental concerns." Id. at 340. Here the court found " serious safety concerns on the other side of the balance." Id. (emphasis in text). The court noted that the School System's mission of safely transporting handicapped children to and from school was directly threatened if Transportation Branch employees were allowed to work under the influence of illicit drugs. Id. The court also found it "noteworthy" that the safety concerns were prompted "not only by the nature of the jobs in the Transportation Branch, but also by the strong evidence of a veritable 'drug culture' among Transportation Branch employees." *fn31" In light of this "significant and compelling governmental interest," the D.C. Circuit found that the Transportation Branch's urinalysis testing as part of a routine, employment-related medical examination was justified at its inception. *fn32"

 The court went on to note that the School System's urinalysis testing failed under the second prong of its inquiry (that the test be "reasonably related in scope to the circumstances which justified the interference in the first place" id. at 340). This failure followed directly from the School System's concession that the drug testing procedure it had employed, the EMIT Cannabinoid Urine Assay, "lack[ed] a sufficient nexus to the [School System's] legitimate concern that its employees not possess, use or be under the influence of drugs while on duty, . . ." *fn33" The court concluded by noting that "any drug test the School System employs in the future must be one that validly detects the activity with which the School System is legitimately concerned." Id. at 341.

 2. Application of the Law to This Case

 Under the D.C. Circuit's reasoning in Jones v. McKenzie, this court holds that the USDA has not justified its proposed random urinalysis testing provisions at its inception. *fn34" As the basis for this holding, the court finds that the intrusions upon the employees' legitimate expectations of privacy are significantly greater here than in Jones. At the beginning of its analysis in Jones, the D.C. Circuit stressed that the question before it was limited to suspicionless urinalysis testing in "the context of a regular, medical examination for employment purposes" and the court further noted that "no claim has been raised that the annual physical examination required of Transportation Branch employees is anything but that." Id. at 339.

 The unmistakable implication of this language is the recognition that the intrusion upon the employees' privacy interests would be far greater outside the context of such a legitimate, regular, employment related medical exam. This fact was recognized in Amalgamated Transit Union, Local 933 v. The City of Oklahoma City, 710 F. Supp. 1321, 1328 (W.D. Okl. 1988), where the district court discussed the intrusion on the privacy rights of employees by a urinalysis testing conducted during bona fide, employment related, regular medical examinations: "In the course of such an examination, even if it does not include urinalysis, one is called on to disclose information not generally disclosed to the public, to uncover certain parts of the body not normally displayed, and, in general, to surrender for the sake of the diagnostic purposes of the examination, [sic] some of the reasonable expectations of privacy that one possesses in other situations." *fn35"

 The USDA's proposed random urinalysis testing, unlike the testing in Jones, will not be conducted in a situation where its employees have already surrendered some of their reasonable expectations of privacy. This increased intrusion is not reduced by "the carefully designed" procedures, Deft's Mem. in Opp. at 49, for obtaining the samples because "being tapped [on the shoulder] during the work day and ordered to urinate into a container while under the close surveillance of a government representative, 'regardless of how professionally or courteously conducted, is likely to be a very embarrassing and humiliating experience. '" AFGE v. Meese, 688 F. Supp. at 552 (quoting Capua v. City of Plainfield, 643 F. Supp. 1507, 1514)). *fn36"

 Thus, in addition to the employee's legitimate privacy interests in the analysis of the urine specimens noted in Jones,37 there are other "strong privacy interests" at stake here. *fn38" Because the privacy interests implicated are stronger than those recognized in Jones, only correspondingly increased "significant and compelling" or "strong" government interests can justify the suspicionless urinalysis testing proposed by the USDA. The court finds the government's asserted interests of safety, security and integrity do not satisfy this heavy burden and therefore the USDA's proposed random urinalysis is not justified at its inception. See NFFE v. Carlucci, 680 F. Supp. at 431 ("the Fourth Amendment requires a heavy presumption against searches not based on individualized suspicion.").

 In assessing the strength of the proffered governmental interests, this court finds it significant that the USDA's proposed random urinalysis testing is not in reaction to anything even remotely resembling "the drug culture" described in Jones. While there is considerable dispute among the parties as to the exact number of drug related incidents at the USDA in the past five years, *fn39" no party seriously disputes the fact that the number of drug related incidents in the past five years, whatever the actual number, is infinitesimal when compared to the number of employees at the USDA. *fn40" Although the existence of the "drug culture" was apparently not a sine qua non to the D.C. Circuit's finding that the urinalysis testing was justified at its inception in Jones,41 to the extent that the evidence assisted in demonstrating a "strong" or "significant and compelling" governmental interest in implementing suspicionless urinalysis testing, this court finds no similarly compelling evidence in the case sub judice.

 The interests identified by the defendants justifying the random urinalysis testing are not correspondingly greater than the " serious " governmental interest identified in Jones. In fact, in two of the three job categories at issue here, the court finds the governmental interests significantly less compelling than those presented in Jones. These government interests, therefore, fail to offset the increased intrusion into the legitimate expectations of privacy of the employees subject to the proposed testing. The court will consider each job category challenged separately.

 Defendants argue that the USDA has a compelling interest in the security of sensitive computer-stored information at the FNS. The court finds this asserted interest inadequate to justify any from of suspicionless urinalysis testing, much less the random testing at issue here. The court notes initially that the sensitive computer information at issue here does not relate to our national security. While in no way denigrating the importance of the war against poverty, the information at issue here is of a different (and) loss compelling) degree entirely. The risks presented to the government, and to the public in general, from the damage or loss of some or all of this information is simply not the type of compelling risk that would justify the suspicionless intrusion proposed by the USDA. *fn42"

 Defendants next assert that the government's interest in preserving the integrity of its drug interdiction effort justifies the random urinalysis testing of non-management PPQ officers. In support of this classification, defendants point to the "not uncommon" instances where PPQ officers find illegal drugs while performing their statutory duties. *fn43" The court finds this justification less compelling than the safety interest identified in Jones.44

 The PPQ officers are statutorily responsible for preventing plant pests and animal diseases from entering the United States. Pursuant to this authority, they inspect cargo coming in from foreign countries aboard planes and ships as well the baggage of passengers arriving at international ports of entry. These officers are administrative employees, not law enforcement officers. They do not carry weapons and are not authorized to make arrests. They receive no training in drug identification, detection or interdiction. Furthermore, they have no drug interception responsibilities. Consistent with the relatively non-sensitive nature of their assignments, APHIS has consistently assigned these positions a zero sensitivity rating in job vacancy announcements (Form AD-332) and personnel actions (Form 50-B). Absent strong evidence of a drug problem among these employees, *fn45" the court finds that this interest does not justify the significant intrusion represented by the USDA's proposed random urinalysis testing. *fn46"

 Finally, defendants argue that the USDA has a compelling safety interest in ensuring that the motor vehicle operators are drug free. The court finds that this interest, in combination with the lack of any direct evidence of a drug problem, *fn47" is not sufficient to justify the significant, incremental intrusion on the employees' legitimate expectations of privacy. While the court recognizes the obvious interest in ensuring the safe operation of any motor vehicle, the court finds no reason to believe this interest is more compelling than the safety interest identified in Jones. First, unlike the bus operators in Jones, these employees are not intimately associated with the "central mission" of the USDA. While a school system's basic concern is the care and education of children, the USDA's central mission is "establishing and enforcing policies which affect every aspect of agriculture." DPM Supp. at 1.

 Second, and more importantly, the tasks performed by these drivers are virtually indistinguishable from those performed by any driver on the road. The four drivers in question are responsible for operating a daily shuttle bus, *fn48" a mail van, and passenger cars leased from the GSA. No special license is required to operate any of the vehicles in question, nor does the USDA do any kind of a special background check or prescreening of these drivers. *fn49" In short, assuming without deciding that the government's interest in the safe operation of these FNS vehicles is equal to the safety interest identified in Jones, the court finds that government's interest here does not carry the incrementally heavier burden required to justify random urinalysis testing at its inception. *fn50"

 The court therefore finds that the USDA's proposed random urinalysis testing is not justified at its inception. This ruling is consistent with the recent decisions of a number district courts faced with similar programs. See Harmon v. Meese, 690 F. Supp. 65 (D.D.C. 1988) (Department of Justice's proposed random urinalysis testing in Offices, Boards and Litigation Divisions not justified at its inception); AFGE v. Meese, 688 F. Supp. 547 (N.D. Cal. 1988) (Federal Bureau of Prisons proposed random urinalysis testing not justified at its inception). While the court acknowledges that random drug testing might deter drug use, the fundamental values of individual liberty and privacy embodied in the Fourth Amendment cannot be sacrificed for the sake of mere efficiency. *fn51"

 3. Reasonable Suspicion Urinalysis Testing

 The plaintiffs contend that probable cause should be required before the USDA is permitted to conduct urinalysis testing of any employee within either of the represented bargaining units with the sole exception of those employees in safety sensitive positions. *fn52" Plaintiffs argue that as proposed, the reasonable suspicion testing is far more intrusive than any search authorized by the Supreme Court on less than probable cause and a warrant. *fn53" They also note that there is no requirement of work-related drug use or impairment in the terms defining reasonable suspicion under the USDA plan. *fn54"

 The defendants' filings before the court do not directly address the plaintiffs' challenge to the reasonable suspicion drug testing of all employees within the respective collective bargaining units. Instead, they apparently rely on the same principles recited above, namely that the Fourth Amendment does not preclude the government, acting in its capacity as employer, from implementing a limited program of urinalysis testing to further its, compelling interests in preserving safety, security, and integrity. *fn55"

 As noted above, "the standard for reasonableness applicable to a particular class of searches requires 'balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.'" O'Connor, 107 S. Ct. at 1499 (quoting United States v. Place, 462 U.S. 696, 703, 103 S. Ct. 2637, 2642, 77 L. Ed. 2d 110 (1983)).

 The D.C. Circuit has applied this language on two recent occasions in finding that the standard for determining the legality of compulsory urinalysis testing of public sector employees "has two reference points: the court must determine first 'whether the [search] was justified at its inception,' i.e., whether 'reasonable grounds [exist] for suspecting that the search will turn up evidence' of work related drug use, and second, 'whether the search as actually conducted' "was reasonably related in scope to the circumstances which justified the interference in the first place, " i.e., whether 'the measures adopted are reasonably related to the objectives of the search and not excessively intrusive. '" National Federation of Federal Employees ("NFFE") v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 943 (D.C. Cir. 1987) (emphasis in original) (quoting T.L.O.) (citations omitted); Jones, 833 F.2d at 339 (quoting T.L.O. and NFFE v. Weinberger).

 The general test employed by the Supreme Court when it has used this two pronged inquiry is that "the legality of the search in question should depend simply on the reasonableness, under all the circumstances of the search." T.L.O., 469 U.S. at 341; O'Connor, 107 S. Ct. at 1502 ("public employer intrusions on the constitutionally protected interests of government employees . . . should be judged by the standard of reasonableness under all the circumstances"). In the instances when the Supreme Court has employed this general reasonableness test followed by the two pronged inquiry, it has done so after determining that neither the warrant nor probable cause standard is appropriate given the circumstances. See, e.g., T.L.O., 469 U.S. at 341 (the need for "freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause . . . ."); O'Connor, 107 S. Ct. at 1502 ("special needs, beyond the normal need for law enforcement make the . . . probable cause requirement impracticable"). *fn56"

 Thus, by adopting the two-pronged inquiry quoted above as the appropriate test, the D.C. Circuit has implicitly ruled that both the probable cause and warrant requirements are inappropriate in the context of mandatory urinalysis testing of public employees. While the D.C. Circuit could have been more explicit in its reasoning in reaching this result, *fn57" the consequences of its actions preclude this court from entertaining the plaintiffs' argument that the USDA's proposed "reasonable suspicion" urinalysis testing should instead be based on probable cause. *fn58"

  The D.C. Circuit has intimated that part of its rationale in implicitly adopting the general reasonableness standard in the context of mandatory urinalysis testing of public employees "is the arguably relaxed standard" for the government as employer. NFFE v. Weinberger, 818 F.2d at 943 n.12; see Jones, 833 F.2d at 339 n.9 ("We are mindful that 'under certain circumstances, the Government may deprive public employees of some of the rights they would have as citizens . . . [because] sometimes a citizen's full enjoyment of his constitutional rights may be demonstrably incompatible with the mission of the particular public agency employing him.'") (quoting Kamisar, Drugs, Aids and the Threat to Privacy, N.Y. Times, Sept. 13, 1987, § 6 (Magazine), at 109, 110-11). In accordance with this rationale, the court will clarify the proposed instances justifying a determination that reasonable suspicion exists, see supra at 13, by providing that such testing shall be based on reasonable, articulable, and individualized suspicion that a specific employee may be under the influence of drugs while on duty. This clarification will ensure that the USDA's proposed testing is fully within "the arguably relaxed standard" for the government as an employer. *fn59"


 In this circuit, a moving party is entitled to a preliminary injunction if that party demonstrates: 1) a likelihood of prevailing on the merits; 2) the likelihood that the moving party will suffer irreparable harm absent relief; 3) that other interested parties will not suffer substantial harm if the court grants the relief requested; and 4) that the public interest favors granting the relief sought. Washington Metropolitan Area Transit Commission v. Holiday Tours, Inc., 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977).

 The court finds it likely that the plaintiffs here will prevail on the merits of their challenge to the constitutionality of the USDA's proposed random urinalysis testing. The law is well settled that the burden is on the government to show that a warrantless search is reasonable under the Fourth Amendment. 4 W. LaFave, Search and Seizure, § 11.2(b), at 218 (2d ed. 1987). The defendants have failed to demonstrate that the USDA's proposed random urinalysis testing program is justified at its inception.

 Without the requested relief, employees in testing designated positions in the two collective bargaining units must either undergo an unconstitutional search or face immediate dismissal. The USDA will suffer no substantial harm from a preliminary injunction barring random urinalysis testing. Finally, the court finds that the public interest favors the suspension of unconstitutional searches. As Judge Revercomb noted in Harmon, in light of the urinalysis cases pending before the Supreme Court and the D.C. Circuit, the public interest will be "well served" by the maintenance of the status quo in this limited instance.

 The court finds, however, that the plaintiffs have demonstrated neither "a likelihood of success on the merits" nor "a serious legal question going to the merits" under Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1078 (D.C. Cir. 1986) in their constitutional challenge to the USDA's proposed "reasonable suspicion" urinalysis testing program, as clarified by the court's accompanying order. As such, the court declines to preliminarily enjoin the USDA's proposed "reasonable suspicion" urinalysis testing.


 The Plaintiffs have also challenged the USDA's proposed urinalysis testing program under the Civil Service Reform Act of 1978 and the Rehabilitation Act of 1973. The defendants have moved to dismiss both of these claims under Fed. R. Civ. Pro. 12. In light of the court's ruling above modifying the USDA's proposed urinalysis testing program, the court denies these motions without prejudice to their subsequent resubmission. The parties are directed to consider the effect of today's ruling on each of these claims and to reassert those that remain viable. *fn60"

 Finally, two nettlesome issues have been raised by the "proposed order" submissions of the parties. Plaintiff NTEU included in its proposed order a paragraph that would enjoin the USDA from conducting post-accident testing of employees within the represented bargaining units "unless there exists reasonable grounds to believe that because of illegal drug use the employee caused the incidents enumerated therein." The court finds this paragraph troubling for a number of reasons not the least of which is that this is the first mention of any challenge to post-accident testing raised in this case. If it is indeed plaintiff-NTEU's intention to challenge this provision, the issue must be fully briefed by both sides.

 The defendants proposed order makes no direct reference to its standing objections despite the inclusion of the following heading in their reply brief filed on the date of the hearing on the various motions: "PLAINTIFF UNIONS HAVE ASSOCIATIONAL STANDING TO SUE ONLY ON BEHALF OF THEIR MEMBERS AFFECTED BY THE PLAN." Deft's Reply at 3 (emphasis added). While the court has assumed that defendants have waived their objections to NTEU's standing to challenge the random urinalysis of the computer operator positions, see supra n.3, the court is frankly confused as to the status of defendants' objection with respect to plaintiffs' challenge to the USDA's proposed applicant testing provisions.

 The court notes that in the only direct challenge to applicant testing provisions brought to its attention, the Fifth Circuit noted that "because no applicant for initial employment is a party to this suit, we consider the constitutionality of the program only as it applies to current employees seeking transfer." National Treasury Employees Union v. Von Raab, 816 F.2d 170, 173 (5th Cir. 1987), cert. granted, 485 U.S. 903, 108 S. Ct. 1072, 99 L. Ed. 2d 232 (1988). While the court is concerned about the proposed urinalysis testing of applicants for the reasons set forth above, it is equally concerned about the standing of the plaintiffs to raise this objection. Accordingly, the court will deny that part of the plaintiffs' motion seeking to enjoin the USDA from conducting applicant testing pending clarification of the issue by both sides in light of today's opinion.


 For the reasons set forth above, the court will enter a preliminary injunction against the USDA's proposed random urinalysis testing program. The court will deny that part of plaintiffs' motion for an injunction of the USDA's proposed "reasonable suspicion" urinalysis testing provided that such testing is modified as specified in the accompanying order. Finally, the court will deny that part of plaintiffs' motion for an injunction of the USDA's applicant testing pending further clarification of the issue by both sides. An appropriate order accompanies this opinion.

 ORDER - December 8, 1988, Filed

 Upon consideration of the plaintiffs' motion for a preliminary injunction, the defendants' motion for summary judgment, the respective oppositions and replies filed by the parties, the entire record herein, and for the reasons set forth in the accompanying memorandum opinion, it is by the court, this 8th day of December, 1988,

 ORDERED that the plaintiffs' motion for a preliminary injunction is granted in part and denied in part; and it is further

 ORDERED that defendants are enjoined from conducting proposed random urinalysis testing as set forth in the United States Department of Agriculture's Department Personnel Manual Supplement 792-3 ("DPM Supp. 792-3") for the testing designated positions within the collective bargaining units represented; and it is further

 ORDERED that plaintiffs' motion for a preliminary injunction enjoining defendants from conducting proposed "reasonable suspicion" drug testing as set forth in DPM Supp. 792-3 is denied provided that such testing of employees within the collective bargaining units represented is based upon reasonable, articulable, and individualized suspicion that a specific employee may be under the influence of drugs while on duty; and it is further

 ORDERED that the remaining provisions of plaintiffs motion for a preliminary injunction of other provisions of the USDA's proposed urinalysis testing, namely provisions for post-accident and applicant testing, are denied; and it is further

 ORDERED that the defendants' motion for summary judgment and their motion for dismissal of various counts of the plaintiffs' complaint are denied.

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