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May 15, 1990

CARL WILLNER, Plaintiff,

Gerhard A. Gesell, United States District Judge.

The opinion of the court was delivered by: GESELL


 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). *fn1"

 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:

 There is no basis in fact to dispute the Department's original view of the possible consequences of employees' drug use or these observations, although the examples of actual known use by Department of Justice workers are relatively few.

 In support of its pre-screening test program, the Department emphasizes that an individual can avoid testing by withdrawing his application when notified of the testing requirement and argues (1) that the expectation of privacy and resulting invasion of privacy are less than that which occurs in the case of an existing employee singled out for random testing; and (2) that the need for drug testing of applicants is enhanced by the reduced opportunity to observe these individuals as compared to existing employees.

 The Department's argument has little force in light of the Court of Appeals' decision in Harmon. The clear thrust of Harmon is not that existing employees have such strong privacy expectations as to overcome strong government interests in drug testing or that the opportunity to observe them is sufficient to foreclose the need for testing. See 878 F.2d at 489. Instead, Harmon rested on the court's firm rejection of the purported government interests in such testing. Harmon examined the three interests recognized as valid by the Supreme Court in Von Raab, workforce integrity, safety, and protecting sensitive information, and concluded that none of ...

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