about national emergency education plans in the event of a nuclear or large-scale military conflict or similar national emergency." Reply at 7-8. This assertion, and therefore the strength of DOE's interest, is difficult to assess, because defendant nowhere delineates the extent to which this material is disseminated within the agency. Moreover, this "national emergency" interest is not mentioned in the Plan, see Pls. Ex. G at x, nor is it discussed in the job descriptions of the employees who are subject to testing. Pls. Exs. H-M. DOE has painted a wide swath on the canvas of confidentiality. As a result, there is no way to know how many of the 88 ADPs would come into contact with the FEMA information and to discern whether this category has been defined "more broadly than necessary." Von Raab, 109 S. Ct. at 1397.
The Court finds that defendant has failed to demonstrate a compelling interest in subjecting the 88 ADPs to random urinalysis testing.
DOE is free, of course, to fashion a concrete agency policy with specific criteria, subject to court review. But, until and unless this occurs, DOE may not, consistent with the Fourth Amendment, implement testing of these employees on the present record. It will therefore be enjoined from ADP urinalysis testing.
VII. Reasonable Suspicion Testing
Judges of this Court have consistently held that reasonable suspicion testing does not transgress the Fourth Amendment. See NTEU v. Lyng, 706 F. Supp. 934, 948-50 (D.D.C. 1988) (Flannery); Bangert v. Hodel, 705 F. Supp. 643, 650-51 (D.D.C. 1989) (Greene); Hartness, slip op. at 16 (Oberdorfer); Watkins, slip op. at 11-12 (Pratt). AFGE does not directly challenge these decisions, but rather argues that each only approved reasonable suspicion testing with the proviso that the supervisor must have individualized suspicion that an employee is impaired while on duty. Motion at 45-46. Harmon made clear, however, that the Supreme Court dispensed with the requirement of individualized suspicion. Slip op. at 6.
Moreover, Skinner stated that "even if urine test results disclosed nothing more specific than the recent use of controlled substances by a covered employee, this information would provide the basis for further investigative work designed to determine whether the employee used drugs at the relevant times." 109 S. Ct. at 1421. AFGE's contention is also foreclosed by the recent decision in Jones v. Jenkins, 878 F.2d 1476 (D.C. Cir. 1989). In Jones, a case involving urinalysis testing of bus drivers in the District of Columbia school system, the court had originally stated, inter alia, that testing could be justified in the future only if it could detect whether an employee was under the influence of drugs while on duty. 833 F.2d 335, 340-41 (D.C. Cir. 1987). A petition for certiorari was filed in the Supreme Court, which vacated and remanded for further consideration in light of Von Raab and Skinner. 109 S. Ct. 1633. On remand, the court of appeals deleted its previous restriction, noted that the District of Columbia's testing was permissible under a "deterrence" rationale," and cited language from Skinner to that effect. Jones therefore provides an additional reason why AFGE's request for imposition of an "individualized suspicion of on-duty impairment" proviso must be rejected.
VIII. Statutory Claims
In Count Two of the complaint AFGE asserts that the DOE Plan violates not only the Civil Service Reform Act of 1978 (CSRA) but also the Administrative Procedure Act (APA). Neither contention has merit. The former is based on a provision of the CSRA that prohibits federal agencies from
discriminat[ing] for or against any employee or applicant for employment on the basis of conduct which does not adversely affect the performance of the employee or applicant or the performance of others.
5 U.S.C. § 2302(b)(10). Plaintiffs maintain that, because there is no nexus between a positive drug test and the efficiency of the federal service, the Plan violates the CSRA. But as Von Raab makes clear, the government also has an interest in deterring illegal drug use within the workplace in addition to the elimination of on-duty impairment. 109 S. Ct. at 1395. Moreover, the question whether an employee has been properly disciplined under the Plan is a fact-specific inquiry, and an individual seeking to challenge an adverse personnel action "will have ample opportunity to have his grievance reviewed by the Merit Systems Protection Board and ultimately the United States Court of Appeals for the Federal Circuit." NTEU v. Reagan, 685 F. Supp. 1346, 1355 (E.D. La. 1988). Plaintiffs' APA claim must also be rejected for, after raising it only in the complaint, plaintiffs never discussed it thereafter in their pleadings or at oral argument, leading to the conclusion that it had been abandoned.
As noted above, the Court has found that random testing of automatic data processors (as currently proposed by DOE) violates the Constitution. Although there are 88 such individuals, AFGE has only eight members within this category, and thus the Court must determine whether to enjoin testing of all employees in this group or only those who are members of AFGE.
In Harmon, the court of appeals did not reach the question whether its decision should be limited to named plaintiffs, since the agency had not challenged the injunction on that ground. Harmon, at 493 n.12.
But the majority gave strong indications that similarly-situated nonplaintiffs should also be covered. It was observed that, although the Harmon panel had earlier modified the district court's injunction to allow testing of employees in categories that were not represented by named plaintiffs, it had not simultaneously limited the injunction only to named plaintiffs. At 493 n.12. The Harmon court also noted that, under "traditional administrative law principles," when a court declares agency regulations to be invalid, "the ordinary result is that the rules are vacated -- not that their application to the individual petitioners is proscribed." Id. at 495 n. 21. This Court therefore concludes that the injunction should include similarly-situated non-plaintiffs and that testing of all 88 ADPs, not just the members of AFGE who are ADPs, must be enjoined.
For the reasons articulated above, the Court holds that only the random testing of the 88 automatic data processors constitutes an unreasonable search and seizure. Under the present decisional law, the other aspects of the DOE drug testing program at issue here pass constitutional examination.
Accordingly, it is
ORDERED that plaintiffs' motion for a permanent injunction be and it hereby is granted in part and denied in part; it is
FURTHER ORDERED that defendant's motion for summary judgment be and it hereby is granted in part and denied in part; and it is
FURTHER ORDERED that defendant Lauro Cavazos, the Secretary of Education, and all of his agents, be and they hereby are permanently enjoined from implementing the DOE Drug-Free Workforce Plan to the extent that it seeks random urinalysis testing of the automatic data processors currently designated for such testing within the Department of Education.
July 26, 1989