The traditional standards governing the issuance of a preliminary injunction require us to consider: (1) the likelihood that plaintiff will succeed on the merits; (2) the threat of irreparable harm to the plaintiff if the injunction is not granted; (3) the possibility that the defendant and others will suffer substantial harm in the event that injunctive relief is granted; and (4) the interest of the public. Washington Metropolitan Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841 (D.C.Cir. 1977); see also Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1078 (D.C.Cir. 1986).
An extended review of these issues is not required in view of the fact that several other members of this court, Judges Oberdorfer,
have been presented with the same problem. In the majority of these cases, the court has enjoined the random testing provisions of the drug-testing plans at issue. Hartness v. Bush, 712 F. Supp. 986 (D.D.C. 1989);
Bangert v. Hodel, 705 F. Supp. 643 (D.D.C. 1989); National Treasury Employees Union v. Lyng, 706 F. Supp. 934 (D.D.C. 1988); Harmon v. Meese, 690 F. Supp. 65 (D.D.C. 1988), appeal pending, No. 88-427 (D.C.Cir.); National Federation of Federal Employees v. Carlucci, 680 F. Supp. 416 (D.D.C. 1988), appeal pending, No. 88-5080 (D.C.Cir.). In each case in which the issue was raised (Hartness, Lyng and Bangert), the court narrowed the reasonable suspicion testing programs.
The Supreme Court has recently issued two decisions that offer us some guidance. Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (upholding post-accident testing of railroad employees); National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) (upholding one-time testing during medical examination of employees who apply for promotion to positions of the Customs Service that directly involve drug interdiction or require firearms). Neither deals directly with the issue of random drug testing. However, both tend to confirm the analysis employed by the district courts in this Circuit in earlier cases, focusing on the nature of the governmental interests to be protected as balanced against the nature of the privacy interests at stake. Specifically, the cases direct us to consider the extent of the privacy invasion, including the circumstances which enhance or reduce the employees' legitimate expectation of privacy, and any "special governmental needs" which may make the testing necessary. Von Raab, 109 S. Ct. at 1390.
In the present case, the government, in support of random testing, cites its interest in safety considerations attendant to the operators of motor vehicles or employees who carry firearms and its interest in the integrity of employees who have access to sensitive or classified information.
We believe that the safety risks involved with the motor vehicle operators carrying-out their duties are no greater than the normal risks associated with vehicle use by the general public. See NTEU v. Lyng, 706 F. Supp. at 947. The fact that three of the motor vehicle operators are required to carry firearms is not dispositive. Numerous courts have rejected random or compulsory testing of employees who carry firearms as part of their appointed duties. See Bangert, 705 F. Supp. 643, 648 & n. 17. But see Hartness, 712 F. Supp. 986, slip op. at 15-16. These drivers, unlike the employees in Von Raab, are not law enforcement officers with on-going contact with the public, engaged in the dangerous task of tracking criminals. Rather, they are engaged in the task of document transportation. The likelihood of the drivers ever needing to use their guns appears, on the record before us, extremely remote.
DOE also argues that the motor vehicle operators and computer and communication specialists and assistants have a diminished expectation of privacy by virtue of possessing security clearances. This claim, which requires speculation on our part, is not persuasive. We believe the fact that the employees at issue here hold security clearances tends more to reflect an expectation of decreased privacy in the screening process that such an investigation entails than an expectation resulting from an ongoing, surprise surveillance that the proposed random testing would entail. See Von Raab, 109 S. Ct. at 1397 (likening urine testing to the screening involved in background investigations and medical investigations). Although the employees at issue have administrative contact with sensitive documents -- either transporting them in the case of the drivers, or transmitting them in the case of the computer and communications specialists and assistants -- the employees, thus far, have never been subjected to ongoing security checks or strict job controls once their security clearance has been determined. They are not required to routinely disclose information concerning their medical or financial circumstances and are not required to undergo routine physical examinations for work.
Moreover, the government's interest in randomly testing these employees is sharply undercut by the complete absence of any history of drug-related accidents, safety violations or a single incident of blackmail or bribery involving employees in these positions.
Although the lack of evidence pointing to widespread drug use is not conclusive and, of course, not itself fatal to a drug-testing program, especially where extraordinary safety and national security hazards are present, Von Raab, 109 S. Ct. at 1395, it nevertheless appears to be a factor to consider when reviewing "all the circumstances surrounding the search." Skinner, 109 S. Ct. at 1414, quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 87 L. Ed. 2d 381, 105 S. Ct. 3304 (1985); see also Hartness, 712 F. Supp. 986, slip op. at 12 (noting that "while Skinner and Von Raab abandoned any requirement for particularized, individualized suspicion as a predicate for random testing, the fact bound opinions require substantial generalized suspicion").
Defendant has not demonstrated that these employees pose the imminent risk of "disastrous consequences" that supported the government's interest in Skinner and Von Raab. Cf. Skinner, 109 S. Ct. at 1407-8; Von Raab, 109 S. Ct. at 1392.
The government would be on surer footing in the factual setting of a one-time post-accident testing or a one-time scheduled testing as a prerequisite for promotion, as were at issue in Skinner and Von Raab. The situation is quite different here. The proposed random testing requires employees to expose themselves to an invasion of personal privacy on a recurring and surprise basis during the ordinary workday. This is more than even a non-sensitive person should be required to undergo.
While the issue is not completely free from doubt, the court finds that there is a substantial likelihood that plaintiff will prevail on the merits of its challenge to the constitutionality of DOE's proposed random urinalysis testing. Defendant has failed to justify the reasonableness of the search at issue. Without the requested relief, these employees must either submit to an unconstitutional search or risk dismissal. DOE will not suffer any substantial harm from a preliminary injunction barring the random urine testing of these employees. We find that the public interest also will be well served by maintaining the status quo, particularly in view of the random testing cases pending before the D.C.Circuit.
With regard to reasonable suspicion testing, the issue is clearer. Other judges in this Circuit who have addressed the issue have permitted such testing to go forward provided that there is a reasonable, articulable and individualized suspicion that a specific employee may be under the influence of drugs while on duty.
We too agree and shall uphold reasonable suspicion testing provided that DOE adheres to the additional safeguard 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.
An order consistent with the forgoing has been entered this day.
Date: 16 June 89
ORDER - June 16, 1989, Filed
Upon consideration of plaintiff's motion for a preliminary injunction, defendant's opposition thereto, and the entire record herein, and for the reasons set forth in the accompanying memorandum opinion, it is by the Court this 16th day of June, 1989
ORDERED that plaintiff's motion for a preliminary injunction is granted in part and denied in part; and it is
ORDERED that, pending a decision on the merits, defendant is enjoined from conducting proposed random urinalysis testing of plaintiff's members who hold positions as motor vehicle operators or computer and communications specialists or assistants; and it is
FURTHER ORDERED that plaintiff's motion for a preliminary injunction enjoining defendant from conducting proposed "reasonable suspicion" drug testing is denied, provided that such testing of NTEU members represented in this case is based upon reasonable, articulable and individualized suspicion that a specific employee may be under the influence of drugs while on duty.