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March 2, 1990

Louis W. SULLIVAN, Defendant. NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs, v. Louis W. SULLIVAN, Defendant

Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE


 On September 15, 1986 President Reagan issued Executive Order 12564 *fn1" which requires federal agencies to develop and implement plans to attain a drug-free workplace, by, among other things, the use of compulsory drug testing of federal employees. Pursuant to this order, the Department of Health and Human Services (HHS) developed its "Drug-Free Workplace Plan," the implementation of which is now scheduled to begin on March 5, 1990. The actions before the Court challenge aspects of the HHS plan as unconstitutional. *fn2" Both the National Treasury Employees Union *fn3" and the American Federation of Government Employees *fn4" seek a preliminary injunction to enjoin the random testing of employees with security clearances, the random testing of motor vehicle operators, reasonable suspicion testing of all employees, and post-accident testing, on the grounds that all the proposed tests violate the Fourth Amendment of the Constitution. *fn5"


 The Targeted Groups and Procedures for Drug Testing

 The HHS plan provides for random drug testing of approximately 8500 employees occupying 45 different job categories *fn6" and that at least 10% of this group will be tested annually. AFGE motion at 6; Plan at 3. Many of the plaintiffs' bargaining units are targeted for random testing on the basis that they hold top secret security clearances *fn7" or occupy positions in the category of "Motor Vehicle Operator." *fn8" Plan at 31-33. *fn9"

 The plan also provides for the drug testing of any HHS employee who engages in what are deemed to be "unsafe on-duty job-related activities," or who is involved in an "on-the-job-accident," if the accident or unsafe act results in a death or personal injury requiring immediate hospitalization or damage to government or private property in excess of $ 1000. Plan at 39.

 Finally, the HHS plan permits drug testing of any employee who arouses the suspicions of a supervisor. Plan at 34. While "hunches" are not sufficient indicators to warrant testing, a reasonable suspicion may be founded on any of the following: (1) direct observation of the physical symptoms of being under the influence of a drug; (2) a pattern of abnormal conduct or erratic behavior; (3) status as an arrestee, convicted criminal, or target of a criminal investigation, for a drug-related offense; (4) information provided by reliable and credible sources or independently corroborated; and (5) newly discovered evidence that the employee has tampered with a previous drug test. Id.

 The drug testing procedures involve the physical collection of urine samples without advance notice, *fn10" and with little, if any privacy. Employees are required to report to a collection site where a monitor will check the employee's identification, demand the removal of all unnecessary outer garments which could be used to tamper with the urine sample, and secure the toilet by placing bluing agents in the tank water and bowl and cutting off other water. The employee is then required to wash his or her hands, and is expected to urinate while the monitor takes note of any unusual behavior. For employees subject to reasonable suspicion testing, the monitor may not only listen to the urination of the employee, but also view it directly. When the monitor receives the urine sample, the employee must await permission to flush the toilet, and may be required to try again if the sample is not sufficient. If the inadequacy is in amount, the employee may be required to drink additional fluids and repeat the test; if the inadequacy is in the temperature of the urine, the employee must provide another sample under the eye of the monitor. The extracted samples are then tested for traces of cocaine and marijuana, and may be tested for substances such as opiates, amphetamines and phencyclidine.

 The proposed drug testing plan is designed to serve the interest of HHS in eliminating illegal drug use from its workplace -- an interest the Department describes as compelling because the Department is "the country's leader in drug abuse prevention, education, research and treatment." Plan at 2. In addition to this leadership role, the Department has articulated an interest in establishing a drug-free workplace which will assure the "highest degree of safety and trust," in carrying out the responsibilities of the agency, which include:

protecting the Department's multi-billion dollar financial management responsibility from fraud, waste, and abuse; ensuring the integrity of biological and medical research dealing with contagious and communicable disease; ensuring the safety of foods, drugs, and medical devices used by the public; ensuring the accurate, timely, and uninterrupted delivery of benefits and services to elderly and disabled citizens; and the protection of public health and safety. Plan at 2-3.

 In short, the intended purpose of the plan is "to offer assistance to those who need it, while sending a clear message that illegal drug use is incompatible with federal service." Id. at 2.


 The Standard for Preliminary Injunctive Relief

 In deciding the merits of a motion for preliminary injunctive relief, four factors must be considered: (1) the likelihood that plaintiffs will succeed on the merits; (2) the threat of irreparable harm to plaintiffs if injunctive relief is not granted; (3) the possibility that defendants and others will suffer substantial harm if injunctive relief is issued; and (4) the public interest. Washington Metropolitan Area Transit Commission v. Holiday Tours, 182 U.S. App. D.C. 220, 559 F.2d 841, 843 (D.C. Cir. 1977). In addition, where the injury factors favor injunctive relief, preliminary relief may be granted even if the case only raises a serious legal question going to the merits. Population Institute v. McPherson, 254 U.S. App. D.C. 395, 797 F.2d 1062, 1078 (D.C. Cir. 1986).

 There can be no doubt that plaintiffs will suffer irreparable injury if the proposed drug-testing plan is implemented in violation of their constitutional rights. Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 (1976). The nature of the injury is especially substantial in a case like this where the government action will result in the supervision and coercion of one of the most basic and private practices of humankind. As described above, employees may be forced to urinate for testing with as little as two hours notice. In addition, an employee subject to reasonable suspicion testing is automatically a candidate for direct observation of his or her urination. Such direct supervision is triggered for all employees by such uncontrollable things as improper urine temperature. In addition, any employee who does not produce a sufficient amount of urine on demand must be detained, forced to drink more fluids, and required to urinate again. Moreover, the consequences for refusal to urinate on demand are severe. According to the plan, "an employee who refuses to be tested when so required will be subject to the full range of disciplinary action, including dismissal." Plan, Section VIII.E., p. 29.

 Against these intrusions into the most private aspects of human functions, the Court must weigh the harm to the Department of Health and Human Services which would result in a delay of the plan's implementation. This Court cannot quarrel with the merits of an executive branch desire to create a drug-free workplace for federal employees. It can, however, question the need for immediate implementation of the plan, given that its effectiveness has been delayed over forty-one months since President Reagan issued the authorizing Executive Order. Against the intended purpose of the plan -- to send "a clear message that illegal drug use is incompatible with federal service," Plan at 2, through the threat of urinalysis, the Court must weigh the potential infringement on the constitutional rights of the ...

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