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.
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.
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,
the court finds that this interest does not justify the significant intrusion represented by the USDA's proposed random urinalysis testing.
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,
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,
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.
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.
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.
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.
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.
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.
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.
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").
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,
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.
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.
III. STANDARD FOR A PRELIMINARY INJUNCTION
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.
IV. REMAINING CLAIMS AND MOTIONS
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.
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.