The opinion of the court was delivered by: FLANNERY
THOMAS A. FLANNERY, UNITED STATES DISTRICT JUDGE
The National Treasury Employees Union ("NTEU") and the National Association of Agricultural Employees ("NAAE"), which are collective bargaining representatives for certain employees of the U.S. Department of Agriculture ("USDA" or "the government"), have moved for summary judgment on the constitutionality of various aspects of the USDA's Drug Free Workplace Program (the "plan" or "program"). Specifically, the plaintiff unions have asked this court to make permanent the preliminary injunction it entered against the USDA's plan subjecting various members of the plaintiffs' collective bargaining units to random urinalysis testing for drugs.
The government defendants, the Secretary of Agriculture and other officers, have in turn filed a cross motion for summary judgment that essentially seeks to remove any obstacles to implementing the urinalysis testing program.
After balancing the employees' privacy interests against the government's asserted interests in support of the various aspects of the testing program, this court permanently enjoins the USDA from implementing the random urinalysis testing provisions of the plan as applied to non-management Plant Protection and Quarantine Officers, and computer specialists. The court, however, grants the defendants' motion for summary judgment on the remaining counts of the underlying complaints in this consolidated action.
NTEU is the collective bargaining representative of about 812 employees of the USDA's Food and Nutrition Service ("FNS"). All of the employees represented by NTEU will be subject to the program's post-accident and "reasonable suspicion" urinalysis testing for drugs. A total of five employees represented by NTEU will be subject to random urinalysis testing for drugs. These employees fall into two job categories, motor vehicle operators (three employees) and computer specialists (two employees). At least one of the employees in each of the two job categories is also a member of NTEU. Finally, NTEU also challenges the program's applicant testing provisions on behalf of the three motor vehicle operators who they allege would be subject to this requirement when seeking promotions.
NAAE is the exclusive collective bargaining unit representing approximately 1,000 non-management employees of the Plant Protection and Quarantine ("PPQ") program within the USDA's Animal and Plant Health Inspection Service ("APHIS"). Some 600 NAAE members (and about 761 non-management PPQ officers total) will be subject to random, reasonable suspicion and post-accident testing. The defendants in these cases include President Bush, USDA Secretary Yeutter, and the current FNS and APHIS administrators.
On August 8, 1988, under authority granted by President Reagan in Executive Order 12564,
the USDA announced the details of its Drug Free Workplace Plan. U.S. Agriculture Dep't Personnel Manual Supp. 792-3 ("DPM Supp."). Although acknowledging that illegal drug use among its employees was "low when compared to the number of employees" in the Department, the program included provisions for urinalysis testing for drugs in six categories: 1) applicant testing, 2) random testing, 3) reasonable suspicion testing, 4) injury, illness, unsafe or unhealthful practice testing, 5) voluntary testing, and 6) testing as part of or as follow-up to counseling or rehabilitation. DPM Supp. at 1.
As noted, the plan calls for injury, illness, unsafe or unhealthful practice ("post-accident") testing. Under this provision, any USDA employee must undergo urinalysis testing for drugs when that employee has "on-the-job apparently caused" one or more fatalities, the hospitalization of one or more persons, or damage to property in excess of $ 10,000. DPM Supp. at 18.
The plan also calls for urinalysis testing for drugs of applicants to certain safety-related positions in the Department.
This requirement applies both to individuals tentatively selected for employment from outside the Department and individuals tentatively selected for movement from within the service to one of these safety-related positions. DPM Supp. at 17. Under the plan, an otherwise successful applicant will be directed to an appropriate collection facility and must provide a sample "as soon as possible" and no later than 48 hours after notification. Id. All agencies within the Department will decline to extend final offers of employment to any applicant with a verified positive test result. Id. The only position subjected to applicant testing at issue here are motor vehicle operators.
Since this court ruled on the plaintiffs' preliminary injunction motion, the legal framework for analyzing the Fourth Amendment implications of governmentally compelled urinalysis testing for drugs has changed. The disposition of the pending motion is now largely controlled by five recent decisions involving constitutional challenges to suspicionless, governmentally sponsored urinalysis testing for drugs. The first two decisions were issued by the Supreme Court and involved challenges to post-accident testing in the railroad industry, Skinner v. Railway Labor Executives Association, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989), and to applicant testing for certain positions in the Customs Department. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). The three most recent decisions, issued by the United States Court of Appeals for the District of Columbia Circuit, involved challenges to random testing in the Department of Justice, Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484 (D.C.Cir. 1989), random testing of various civilians in the Department of the Army, National Federation of Federal Employees ("NFFE") v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C.Cir. 1989), and random testing of certain employees in the Department of Transportation. American Federation of Government Employees ("AFGE") v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884 (D.C.Cir. 1989).
These decisions have established certain general principles. First, because "collection and testing of urine samples intrudes upon expectations of privacy that society has long recognized as reasonable," government-sponsored urine testing for drugs "must be deemed [a] search under the Fourth Amendment." Skinner, 109 S. Ct. at 1413; Von Raab, 109 S. Ct. at 1390 (Fourth Amendment protects against "unreasonable" searches conducted by the Government when it "acts as an employer"). But, the recognition that the Fourth Amendment applies to urine testing only starts the inquiry because the Fourth Amendment forbids only "unreasonable" searches and seizures. Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1413-14; AFGE v. Skinner, 885 F.2d at 889 ("This approach necessarily recognizes that not every invasion of privacy is proscribed by the Fourth Amendment.").
While a search must usually be supported by a warrant and probable cause to meet the Fourth Amendment's reasonableness requirement, "neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1414-16, 1417 ("We have made it clear, however, that a showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable."). Instead, the Court has recognized "that where a Fourth Amendment intrusion serves special needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Von Raab, 109 S. Ct. at 1390; Skinner, 109 S. Ct. at 1414.
After finding that certain special governmental needs existed in both Skinner and Von Raab, the Court applied this balancing test and sustained different types of suspicionless drug testing.
In Skinner, the Court found that the government's "surpassing" interest in ensuring the safety of the railroad industry outweighed the covered train workers' diminished expectations of privacy and sustained Federal Railroad Administration regulations that required blood and urine tests following certain types of accidents. In Von Raab, the Court found that the government's compelling interest in the integrity of the country's borders and in protecting the public outweighed the diminished privacy interests of the affected employees and sustained suspicionless, urinalysis testing for drugs of applicants to certain positions inside the Customs Department.
As recognized by the D.C. Circuit, the Supreme Court's decisions underscore certain additional principles important to the analysis here. First, the Court's decision in Von Raab indicates "that a documented drug problem . . . within a particular work place" need not be shown to justify a suspicionless drug testing program. Harmon, 878 F.2d at 487; AFGE v. Skinner, 885 F.2d at 895 (" Von Raab indicates that a history of intra-agency drug use is not an essential ingredient in establishing the reasonableness of a testing regime."). Second, while "a coherent theory might be constructed which would make" the privacy intrusion occasioned by a random urinalysis testing program "a fundamental distinction" from the analysis in Von Raab, the D.C. Circuit noted that "the Supreme Court has not encouraged the construction of such a theory." Harmon, 878 F.2d at 489. Instead, the D.C. Circuit has concluded that the random nature of a challenged urinalysis testing program is only a " relevant consideration" to be factored into the balancing test which, "in a particularly close case . . . would [possibly] tip the scales [against sustaining a particular program]." Id. (emphasis in original); Cheney, 884 F.2d at 608-09 ("'the random nature of the [subject] testing plan is a relevant consideration,' but does not 'require us to undertake a fundamentally different analysis from that pursued by the Supreme Court.'" (quoting Harmon, 878 F.2d at 489)); AFGE v. Skinner, 885 F.2d at 891 ("While it is true that the regulations sustained in Skinner required testing only after a triggering event . . . we do not find that . . . [this] fact compels 'a fundamentally different analysis from that pursued by the Supreme Court.'" (quoting Harmon, 878 F.2d at 489)).
Although the analytical framework used by the Supreme Court in Skinner and Von Raab has apparently discarded the two-pronged inquiry mandated by the D.C. Circuit (and applied by this court) that required a Fourth Amendment intrusion to be justified at its inception and reasonably related in scope to the circumstances that first justified the intrusion, Jones v. McKenzie, 266 App. D.C. 85, 833 F.2d 335, 339 (D.C.Cir. 1987), vacated and remanded, 490 U.S. 1001, 104 L. Ed. 2d 149, 109 S. Ct. 1633 (1989), and National Federation of Federal Employees ("NFFE") v. Weinberger, 260 U.S. App. D.C. 286, 818 F.2d 935, 943 (D.C.Cir. 1987), the essential elements in the balancing test remain the same. The court must again weigh the strength of the government's asserted interests supporting the urinalysis testing program against the individual's privacy interests to determine if the intrusion is reasonable under the Fourth Amendment.
The D.C. Circuit confirmed this conclusion in Cheney :
"In Von Raab and Skinner the Supreme Court laid out a balancing test that, while not self-executing, focuses our attention on a single question: Does the government's need to conduct the suspicionless searches outweigh the privacy interests of the covered employees in such a fashion that it is 'impractical to require a warrant or some level of individualized suspicion?'"
Cheney, 884 F.2d at 608; see also AFGE v. Skinner, 885 F.2d at 889.
The nature of the balancing test employed by Skinner and Von Raab was aptly summarized by the D.C. Circuit in Harmon : "The Supreme Court has quite clearly eschewed an approach to drug testing based on bright lines and clean analytic principles, and has instead mandated case-by-case balancing of individual and societal interests." Harmon, 878 F.2d at 490 n. 9.
This court now turns to the balancing of these interests here.
Plant Protection and Quarantine Officers
The government defendants argue that random testing of the PPQ officers is justified by the compelling government interest "in ensuring front-line [drug] interdiction personnel are physically fit, and have unimpeachable integrity." Deft's Reply at 18 (quoting Von Raab). They argue that PPQ officers, like the Customs Officers in Von Raab, are "in an ideal position to assist drug smugglers if under the influence of criminal elements." Id. at 19.
In short, the government defendants rely upon the Supreme Court's recognition in Von Raab of the government's compelling interest "in the integrity of our ...