GERHARD A. GESELL, UNITED STATES DISTRICT JUDGE.
This is yet another case concerning the federal government's effort to create a drug-free workplace for its employees by compelling urine drug testing without any suspicion of drug use. In this instance, the individual plaintiff, Carl Willner, challenges drug testing required during pre-screening of new employees under the Department of Justice Drug Free Work Place Plan ("DOJ Plan") adopted pursuant to Executive Order 12,564, which declared, inter alia, that "persons who use illegal drugs are not suitable for Federal employment."
Willner is an attorney who has been in private practice in the District of Columbia. He has been tentatively accepted for employment by the Antitrust Division of the Justice Department. His position would not require access to Top Secret classified information, at least initially. Nevertheless, pursuant to standard practice under the DOJ Plan, Willner was asked to submit to a urine test to determine possible recent drug use. He refused as a matter of principle and brought this action to test the constitutionality of this aspect of the DOJ Plan.
The case is before the Court on Willner's motion for preliminary injunction, which has been fully briefed and was argued on April 24, 1990. Because the motion papers, which include declarations and supporting data, fully present the issues, and controlling facts are undisputed, the Court will dispose of the case on the merits pursuant to Fed.R.Civ.P. 65(a)(2).
A one-time mandatory pre-employment screening urine test is required of all attorneys accepted for positions in the Department of Justice's Offices, Boards and Divisions (OBD) component, which includes the Antitrust Division. Under the current, revised OBD plan, every individual tentatively selected for employment in OBD must provide a urine sample for drug testing in ordered to be hired. The relevant testing procedures are detailed in the Supreme Court's decision in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384, 1388-89 (1989). In general, the applicant is provided 48 hours advance notice. The applicant must go to a designated testing location and provide a sample behind a partition or stall with an attendant present outside. The attendant does not observe the urination unless there is reason to suspect tampering.
It is well settled that a non-consensual urine drug test is a search governed by the requirements of the Fourth Amendment to the Constitution. Von Raab, 109 S. Ct. at 1390. However, suspicionless testing is not unconstitutional per se, so long as it serves some government interest beyond the normal need for law enforcement. Id. In such cases, though, a reviewing court must "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." Id.
Various urine drug testing plans affecting federal employees have been the subject of various court decisions. The courts in this Circuit have applied the Fourth Amendment on a case-by-case basis. Suspicionless testing of employees or applicants, when allowed, has been carefully restricted to persons with special duties of particular public consequence, such as those requiring security clearance, those having direct involvement in jobs affecting public safety, and those working directly with aspects of drug enforcement. See Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484 (D.C.Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990); National Federation of Federal Employees v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603 (D.C.Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 948, 110 S. Ct. 864 (1990); American Federation of Government Employees v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884 (D.C.Cir. 1989), cert. denied, 495 U.S. 923, 58 U.S.L.W. 3694, 109 L. Ed. 2d 321, 110 S. Ct. 1960 (1990); Transportation Institute v. U.S. Coast Guard, 727 F. Supp. 648 (D.D.C. 1989).
In Harmon, the Court of Appeals held that the government's interests in workforce integrity, public safety, and protecting sensitive information did not make reasonable under the Fourth Amendment OBD's plan for random drug testing of certain existing employees, including Antitrust Division attorneys. While the Court of Appeals upheld random testing for employees with access to Top Secret classified information and suggested that drug testing of drug prosecutors would be permissible, it rejected the Department's plan to drug-test all criminal prosecutors and all employees with access to grand jury materials. The central issue in this case, then, is whether, between a current Antitrust Division attorney and an applicant for such a position, there is a constitutional distinction that would render the testing of the latter permissible under the Fourth Amendment.
The Department's position stems from its appraisal of the drug problem in the work place expressed in the following terms when the DOJ Plan was announced:
Studies show that employees who use drugs tend to be less productive and less reliable. Impairments from the use of illegal drugs can linger for days beyond the time the use may recognize the immediate effects of the drug. Even for employees who use drugs off-duty, then, illegal drug use can have an unpredictable impact on judgment and performance on duty. And, of course, there is no guarantee that an employee using drugs off-duty will not someday soon begin using illegal drugs on the job. Drugs can induce changes in behavior that endanger co-workers or members of the public. Drug-users may also be susceptible to espionage, bribery, and blackmail.