The opinion of the court was delivered by: GREEN
JOYCE HENS GREEN, UNITED STATES DISTRICT JUDGE
On January 12, 1989, the United States Department of Education (DOE) published its Drug-Free Workforce Plan, a department-wide program of drug testing, education and counseling for its employees. Plaintiffs, the American Federation of Government Employees, AFL-CIO (AFGE), its local affiliate, and two DOE employees represented by AFGE, brought this action seeking to enjoin two aspects of DOE's drug testing program. Resolution of this lawsuit requires consideration of the Supreme Court's two major drug testing opinions, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989) and Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), as well as the most current decision from our court of appeals, Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989). Presently pending are plaintiffs' motion for a permanent injunction and a motion for summary judgment filed by defendant Lauro Cavazos, the Secretary of DOE. For the reasons articulated below, these motions will be granted in part and denied in part.
On September 15, 1986 President Ronald Reagan issued Executive Order No. 12,564. See Plaintiffs' Exhibit (Pls. Ex.) C; 51 Fed. Reg. 32,889 (1986). Entitled "Drug-Free Federal Workplace," the Order requires all federal employees to "refrain from the use of illegal drugs" and directs all heads of Executive Branch agencies to develop "a plan for achieving the objective of a drug-free workplace." Pls. Ex. C at 1-2. It further mandates that, as part of such a plan, each agency head establish "a program to test for the use of illegal drugs by employees in sensitive positions" (with the extent of and criteria for testing to be determined by each agency) as well as a program for voluntary testing. Id. at 2. Agencies are required to provide 60 days' notice to their employees prior to implementing their plans. Id.
On July 11, 1987 the Supplemental Appropriations Act of 1987 became law. See Pub. L. No. 100-71, 101 Stat. 391 et seq. (1987) (codified at 5 U.S.C. § 7310 note). Section 503 of the Act precluded the use of any federal monies to implement Executive Order 12,564 unless a number of requirements were fulfilled. Two are particularly relevant here. In section 503(a)(1)(A)(i), the Secretary of Health and Human Services (HHS) was directed to certify to Congress that the drug-free workplace plan of each federal agency met the dictates of Executive Order 12,564. In section 503(a)(1)(A)(ii), HHS was required to publish mandatory guidelines setting standards for laboratory drug testing and procedures.
HHS published its testing guidelines on April 11, 1988. See 53 Fed. Reg. 11,970 et seq. On April 27, 1988 the Secretary of HHS certified to Congress that DOE's plan was in conformance with Executive Order 12,564. See Pls. Ex. F. On January 12, 1989 DOE issued a revised version of its Plan. Pls. Ex. A. On February 6, 1989 Secretary Cavazos issued an administrative bulletin containing the 60-day notice of drug testing required by Executive Order 12,564.
II. The DOE Drug-Free Workforce Plan
DOE's Plan is a multi-faceted program designed to detect and prevent illegal drug use within the agency and to offer assistance to those individuals who need it. Pls. Ex. A at 1. Section III of the Plan establishes an Employee Assistance Program responsible for providing counseling and referral services for employees using drugs, offering education and training programs and assuring the confidentiality of drug testing results. Supervisory personnel are required by Section IV to receive training in the detection of drug abuse and the Department's drug policies and procedures. Section V states that education about the types and effects of drugs shall be offered to all DOE employees. Several positions are created in Section VI to carry out the mandates of the Plan. See generally id. at 7-15.
Drug testing is the centerpiece of the DOE Plan, however. Six types are envisioned:
1. Random testing of sensitive employees in certain specified positions (known as "testing designated positions" or "TDPs");
2. Reasonable suspicion testing;
3. Accident or unsafe practice testing;
5. Follow-up testing for those employees in counseling or rehabilitation; and
6. Testing of TDP applicants.
Pls. Ex. A at 3. This action concerns only the random and reasonable suspicion aspects of the DOE Plan; each is discussed in more detail below.
In Appendix A to the Plan, DOE listed 106 sensitive positions that would be subject to random drug testing. On May 1, 1989, however, the agency issued a revised list of 115 TDPs subject to random tests. See Pls. Ex. G. These 115 positions may be grouped into six categories: (1) law enforcement personnel; (2) operators of motor vehicles; (3) employees with access to sensitive computer or financial data; (4) Presidential appointees; (5) custodians of top secret documents and (6) individuals in the Office of Inspector General. Id. at i. A total of 189 employees (approximately 4% of all DOE workers) are eligible for testing, and 12% of them will be randomly tested each year. Id. The Plan lists numerous factors that the Secretary considered in selecting positions for random testing.
C. Reasonable Suspicion Testing
All DOE employees may be tested if a reasonable suspicion exists that they are using drugs. The Plan states that such a suspicion may arise (1) from direct observation of an individual; (2) from "[a] pattern of abnormal conduct or erratic behavior"; (3) when the individual has been arrested for, convicted of, or identified as the target of a criminal investigation into, a drug-related offense; (4) based on "information provided either by reliable and credible sources or independently corroborated"; and (5) when newly discovered evidence discloses that the employee tampered with a prior drug test. Pls. Ex. A at 22. The Plan also articulates a rough standard of proof: "although reasonable suspicion testing does not require certainty, mere 'hunches' are not sufficient to meet this standard." Id.
The Plan directs that, when an employee is suspected of using illegal drugs, his supervisor shall gather all relevant information that supports his suspicion. Id. He must then secure the approval of the second-line supervisor and the concurrence of the Chief of the Labor and Employee Relations Branch. Id. If reasonable suspicion is established, the supervisor must prepare a report detailing the reasons that led to the testing, the results of the test, and any action that was taken thereafter. Id. at 23.
D. Test Procedures and Results
The Guidelines also regulate the laboratories where testing is conducted. First, each lab must be certified to perform urinalysis testing. See §§ 3.1 et seq. Chain-of-custody, storage and security measures are specified. §§ 2.4(a)-(c). All samples are first subjected to immunoassay screening, § 2.4(e), and any positive results are then confirmed by means of a gas chromatography/mass spectrometry test. § 2.4(f). Specimens are checked for five drugs: marijuana, cocaine, opiates, amphetamines and phencyclidine. See Appendix B to Pls. Ex. A.
All results are transmitted directly by the laboratory to DOE's Medical Review Officer (MRO). When a confirmed positive result has been received, the employee is given an opportunity to justify the result to the MRO. In this regard, the MRO may choose to conduct medical interviews of the employee or review relevant medical history. Pls. Ex. A at 26. When, however, the positive result could have resulted from legally prescribed medication, the MRO "must review all medical records made available by the tested employee." Id.6 The Plan provides that "evidence to justify a positive result may include, but is not limited to: (1) a valid prescription; or (2) a verification from the individual's physician or a valid prescription." Id. Thereafter, the MRO produces a report on each positive result, whether justified or not, and forwards it to the administrator of the Employee Assistance Program. Id. at 14, 26.
When an employee is found to be using illegal drugs, certain mandatory actions follow. First, each employee must be referred to the Employee Assistance Program and must be removed from the federal service if counsel and rehabilitation are refused. Id. at 18. In addition, any employee who continues to use drugs after a first finding of illegal use must also be terminated. Id. An employee occupying a sensitive position who is found to use drugs must be "immediately remove[d]" from his job, but may be permitted to return if, in the discretion of the Secretary, such a return "would not endanger public health or safety or national security." Id.
All other employees found to use drugs must also be disciplined in some fashion, but the punishment "will depend on the circumstances of each case." Pls. Ex. A at 18. The possible measures include:
2. Placement on enforced ...