The opinion of the court was delivered by: GREENE
The legal principles which govern the validity of such programs are well known, having been laid out fully and fairly by my colleagues, Judges Flannery,
applying the analytical framework established in Jones v. McKenzie, 266 U.S. App. D.C. 85, 833 F.2d 335, 338-39 (D.C. Cir. 1987), and National Federation of Federal Employees v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 942-43 (D.C. Cir. 1987). These principles are considered, albeit not at great length because of their familiarity, in Part II, infra. Part III briefly discusses the government's standing and class action arguments in relation to the random testing aspect of the suit. Part IV deals with the discrete and less expansive "reasonable suspicion" part of the program; and in Part V, the Court discusses some of the broader issues raised by a program such as that under consideration here.
The drug testing program of the Department of the Interior stems from Executive Order 12,654, 51 Fed. Reg. 32,889 (1986), issued in 1986. That Order requires federal agencies to develop and implement plans to achieve a drug-free workplace by, among other means, the testing of their employees for illegal drug use.
Pursuant to that authority, the Department, on December 17, 1987, promulgated its "Drug Free Workplace Policy and Procedures" (hereinafter plan or Department plan). Under this plan, the Secretary identified those positions deemed sufficiently sensitive to warrant "random urinalysis testing" for five specified drugs.
The plan also includes "reasonable suspicion" urinalysis testing based on a non-exclusive list of five criteria.
The random testing plan identifies sensitive positions as those "characterized by critical safety or security responsibilities as related to the mission of the Department." Department plan, Part II, section.8C. According to the Department, these are positions that "directly and immediately relate to public health and safety, the protection of life and property, law enforcement, or national security." Id. Fully one-quarter of the Department's employees were determined to be in sufficiently sensitive positions to warrant random testing.
On July 5, 1988, the Department's employees were given notice that testing would begin no earlier than in sixty days. Those in the positions subject to random testing were to be given an additional thirty-day notice before their testing would begin. Random testing was slated to start in Washington, D.C. and in Denver, Colorado on January 9, 1989, and in other areas on March 1, 1989, but due to the pendency of this action, the government agreed to withhold all random testing until January 31, 1989. The Department planned to implement reasonable suspicion testing on October 1, 1988, but to date no one has been tested under this aspect of the program.
Once random testing begins, approximately fifteen percent of the workers in the various designated positions will initially be chosen,
essentially by lottery, on the basis of their social security numbers. An employee selected for random testing will be notified on the day of testing, preferably within two hours of the test.
A positive test result leads to disciplinary action, ranging from a reprimand to dismissal. Additionally, an employee testing positive will be immediately removed from his position, if it is a sensitive position as defined by the plan, and referred to the Department's drug counselling and treatment program. Refusal to proceed to counseling may likewise lead to dismissal.
The testing procedures themselves are governed by guidelines promulgated by the Department of Health and Human Services.
These procedures operate as follows.
An employee selected for random testing must proceed to a designated private site or a restroom stall in the company of a collection site monitor. Upon entering the restroom, the employee must remove any unnecessary outer garments that might conceal items or substances that could be used to tamper with the specimen. The employee must then wash his or her hands before urinating and remain in the restroom or collection site throughout the collection process. During this period, the employee will be denied any further access to water fountains, faucets, soap dispensers, and cleaning agents. As a security measure, the collection site monitor places "bluing" agents in the tank water and bowl of the toilet that the employee will use. The collection site monitor then remains close by, listens to the urination, and notes any "unusual behavior" while the employee is urinating. The employee is instructed not to flush the toilet until the urine specimen is turned over to the collection site person.
As soon as the employee hands over the specimen, the monitor determines whether there is a sufficient amount of urine in the container (at least sixty milliliters), and if there is not, the employee may be required to drink liquids and urinate again. The monitor also measures the temperature of the urine, and he inspects it for signs of contaminants. If the temperature falls outside an established range, the employee must urinate once more, this time under direct observation to provide another specimen.
When the monitor has reason to believe that an employee has tampered or may tamper with the specimen, he may, once again, require that individual to urinate, but this time under direct visual observation.
All employees tested on the basis of reasonable suspicion must also urinate under the visual observation of a monitor. Department plan, Part II, section.3.
Courts must weigh four factors in considering a motion for preliminary injunction: (I) the likelihood that plaintiffs will succeed on the merits; (2) the threat of irreparable harm to plaintiffs if the injunction is not granted; (3) the possibility that the defendants and others will suffer substantial harm in the event that injunctive relief is issued; and (4) the interest of the public. Washington Metropolitan Area Transit Commission v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). Consideration of these factors leads the Court to conclude that a preliminary injunction against random drug testing should be issued.
These propositions of course merely mark the beginning of the analysis, for the Fourth Amendment only bars unreasonable searches, NFFE v. Weinberger, 818 F.2d at 942, and the question therefore must be considered whether the drug testing program is reasonable. A determination of the applicable standard of reasonableness requires a "balanc[ing of] 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, supra, 480 U.S. at 719.
Rules have also been established for this balancing. The Court of Appeals for this Circuit held in Weinberger, supra, that on one side of the balance are the employee's reasonable expectations of privacy which society is "prepared to recognize as legitimate." 818 F.2d at 942 (quoting New Jersey v. T.L.O., 469 U.S. 325, 338, 83 L. Ed. 2d 720, 105 S. Ct. 733 (1985)). On the other side lie the government's interests in the "efficient and proper operation of the workplace." Id. Weinberger further instructs the district courts that the balancing inquiry 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 ...