of marijuana decades ago could suddenly be required to undergo drug testing regardless of whether or not there is any evidence of current or recent drug use. There also appears to be no limit to the number of times the employees in this category could be tested. For example, if an employee with an arrest or conviction takes a urinalysis test next month and passes, he could, under the current criterion, be tested again and again on the theory that once he had been involved in drugs, he is always a likely drug user.
Yet employees who voluntarily come forward to reveal their drug use are not subject to this criterion, nor are employees who have previously used drugs but were never arrested. Consequently this criterion appears to be directed more at punishing people for past criminal conduct than at deterring or detecting current drug use. The government has not claimed to have this kind of punitive interest, nor is it clear that implementing this kind of punishment is a role the executive branch is entitled to play. See United States v. Stephaney Roberts, 726 F. Supp. 1359 (D.D.C. 1989). In any event, the criterion as presently drafted is not directed at detecting current drug use, the government's asserted interest, and it is therefore unreasonable under the Fourth Amendment.
Fourth. NTEU argues that standard number five which provides for reasonable suspicion testing based upon "newly discovered evidence that the employee has tampered with a previous drug test," is unreasonable because it does not create a suspicion that the employee uses illegal drugs on-duty. Reply at 21. The Court rejects this claim and finds that such evidence does constitute individualized, reasonable suspicion that an employee uses illegal drugs on-duty and that it is not unreasonable for the government to administer another drug test based upon such evidence.
Fifth. Under the program, employees subject to reasonable suspicion testing can be required to provide their urine samples under direct visual observation, simply by virtue of the fact that they are being tested pursuant to this program, rather than on the basis of some evidence that they have tampered with a sample in the past. Despite the fact that direct visual observation makes the testing qualitatively different and more invasive, the government has not articulated any compelling need for this additional protection against adulteration of the urine sample beyond the measures already provided. As it stands the plan already provides more than adequate protection against adulteration by requiring monitors (1) to ensure that employees remove all clothing which could be used to hide a urine sample, (2) to listen for unusual behavior; (3) to add bluing agents to the toilet water; (4) to prevent the employee from flushing; and (5) to check the temperature of the urine sample.
In upholding the drug testing of certain Customs agents, the Supreme Court was careful to note that there was "no direct observation of the act of urination, as the employee may provide a specimen in the privacy of a stall." Von Raab, 109 S. Ct. at 1394 n. 2. Similarly, in upholding the drug testing of rail crews, the Supreme Court credited the regulations in their effort to reduce the intrusiveness of the collection process by not requiring that the samples be furnished under direct observation. Skinner, 109 S. Ct. at 1418. Given that the government has not asserted a compelling interest in this additional protection against adulteration, nor has it cited any authority for the proposition that such direct visual observation is legitimate in the context of reasonable suspicion testing where there has been no evidence of an attempt to tamper with the urine sample, plaintiffs' request for a preliminary injunction with respect thereto shall be granted.
Accordingly, it is this 2nd day of March, 1990
ORDERED that the motion for a preliminary injunction with respect to the random testing of employees with top secret security clearances be and it is hereby denied; and it is further
ORDERED that the motion for a preliminary injunction with respect to the random testing of motor vehicle operators be and it is hereby denied; and it is further
ORDERED that the motion for a preliminary injunction with respect to post-accident testing be and it is hereby granted; and it is further
ORDERED that the motion for a preliminary injunction with respect to reasonable suspicion testing be and it is hereby granted in part and denied in part; and it is further
ORDERED that the claim under the Civil Service Reform Act be and it is hereby dismissed.