deciding whom to test under this rubric" must be considered. Id. at 1397.
The government contends, in effect, that information classified as "secret" is by definition as "truly sensitive" as top secret information so that employees who hold "secret" security clearances must be subjected to urine testing for drugs at the discretion of the employing government agency. In support of this contention, the government relies upon American Federation of Government Employees v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884 (D.C. Cir. 1989). In that case, our Court of Appeals approved the testing of urine of Department of Transportation van drivers who, operating without the close supervision of an office environment, transported classified documents by motor vehicle. The Court of Appeals, however, did not rest its approval of this drivers' testing program solely upon the fact that the drivers held secret security clearances. Rather, it relied heavily upon, among other things, traffic safety concerns authoritatively addressed in Skinner v. Railway Labor Executives' Association, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), as well as the drivers' "regular access to classified information" in an unsupervised environment. 885 F.2d at 893. It is not at all clear in the present state of the controlling decisions that the government may test the urine of all employees solely because they possess secret security clearances irrespective of the circumstances (e.g., their actual access to documents classified as "secret," the general subject matter of the information, and the feasibility of reliance on individualized suspicion to detect drug abuse in the employee's working environment). In fact, on this record, the government is not likely to prevail on what is apparently the essence of its rationale: that a government agency may, in its discretion, test the urine of any employee who possesses a secret security clearance.
The efficient resolution of this original question and efficient review of any decision will be facilitated by further discovery in order to create a reviewable record regarding the criteria the government relied upon to select positions to be tested (including positions with top secret clearances) and whether application of those factors to the particular persons to be tested was reasonable. Accordingly, it is this 26th day of January, 1990, hereby
ORDERED: that defendants' motion to vacate the preliminary injunction should be, and is hereby, granted in part; and it is further
ORDERED: that the preliminary injunction entered in this matter on May 19, 1989, is modified to permit testing of named plaintiffs who have been cleared for access to top secret information; and it is further
ORDERED: that defendants' motion to stay discovery or for a protective order, should be, and is hereby, denied; and it is further
ORDERED: that discovery with regard to the validity of defendants' procedures, rationale, and conclusions concerning designation of positions as Testing Designated Positions because of possession of a Secret or Top Secret security clearance may be conducted until April 26, 1990; and it is further
ORDERED: that this matter shall be referred to Magistrate Attridge for supervision of discovery and resolution of any discovery disputes; and it is further
ORDERED: that supplemental motions for summary judgment shall be filed on or before May 28, 1990.
Louis F. Oberdorfer
UNITED STATES DISTRICT JUDGE
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