The opinion of the court was delivered by: LOUIS F. OBERDORFER
This matter originated on behalf of a number of employees of the Executive Office of the President ("EOP") who were designated for randum urine tests as part of a Plan to establish a drug-free federal workplace in that office. It is now before the court on plaintiffs' motions for a permanent injunction and cross-motions for summary judgment. Plaintiffs contend the entire plan is invalid for failure to comply with the Administrative Procedures Act ("APA") and, alternatively, that the Plan's application to two plaintiffs, Ms. Barbara Doran and Ms. Donna Ferrantello, should be enjoined.
The EOP originally designated Ms. Doran for testing solely because she holds a pass to the Old EOB, which the President occassionally visits for a press conference or meeting, and where the Vice President has a second office. Defendants have provided no indication that either the President or the Vice President ever is in the Old EOB without heavy, close security. Nor are other visitors to the Old EOB, including government employees and private citizens, required to submit to urine tests as a requisite to entering.
Defendants further contend that Ms. Doran should submit to testing because, although she has no access to either top secret or secret documents, her computer work gives her access to unclassified, but "truly sensitive," information relating to the federal budget and similar information unrelated to national security.
Although Ms. Ferrantello also works at the New EOB with a pass to the Old EOB, she is designated for testing solely because she has a secret clearance.
The controlling Court of Appeals decision on this issue was by a divided panel. Hartness v. Bush, 287 App. D.C. 61, 919 F.2d 170 (D.C. Cir. 1990 ), reversing in part, 712 F. Supp. 986 (1989). The concurring judge joined that decision to permit testing holders of "secret" clearances (as well as those with "top secret" clearances and White House passes), significantly adding this caveat:
The difference between the government's interest in testing secret1 clearance-holders and its interest in testing top secret2 is not significant enough to tip the constitutional scales against testing. I do not think it necessary, however, to go beyond this narrow holding.3
Hartness v. Bush, 919 F.2d at 174 (Mikva, J., concurring).
Although I obviously agree with the dissenting judge who would have affirmed my decision, I am bound by the narrow holding agreed to by the two majority judges that limits the testing of EOP employees to those who have White House passes and thus have direct access to the President, as well as to those who hold top secret and secret clearances, but not "beyond." Id.
Ms. Doran does not fit into any of these categories approved for testing. She has no security clearance. The information accessible to her may be sensitive in a fiscal or political sense. But defendants have not asserted that she has access to any "truly sensitive" national security or foreign relations information such as that with respect to nuclear submarine construction considered in Department of Navy v. Egan, 484 U.S. 518, 98 L. Ed. 2d 918 , 108 S. Ct. 818 (1988), cited with approval in National Treasury Employees Union v. Von Raab 489 U.S. 656, 667, 103 L. Ed. 2d 685 , 109 S. Ct. 1384 (1989). Accordingly, I conclude that the difference between the government's interest in testing a person who has no security clearance because her security-minded supervisors do not find her job requires one and its interest in testing top secret and secret clearance holders is "significant enough to tip the constitutional scales against testing." Cf. Hartness v. Bush, 919 F.2d at 174 (Mikva, J. concurring).
A further question remains with respect to Ms. Ferrantello. If she is otherwise properly included in the category of EOP employees earmarked for testing, her "secret" clearance would preclude the relief she seeks, irrespective of her access to the Old EOB. However, Ms. Ferrantello objects that the Revised Plan violates the APA by relying upon Federal Personnel Manual Letter ("FPM") 792-16, which was issued without pre-publication notice and an opportunity for public comment. Plaintiffs argue that the "revised" Plan is a functional reiteration of the original Plan, which relies impermissibly upon FPM Letter 792-16 and does not even cite the superceding FPM Letter 792-19, 54 Fed. Reg. 47324 (Nov. 13, 1989), that was properly published after notice and comment.
Defendants note, however, that after the appellate ruling on the preliminary injunction in this case, they revised the Plan to take into account intervening court decisions and other developments. Defendants further point to Circuit authority for the proposition that neither the Plan nor the FPM Letters are subject to the APA notice and comment requirements because they are "paradigmatic examples of 'matter(s) relating to agency management of personnel" and therefore "exempt from the procedural (notice-and-comment) requirements of the Administrative Procedures Act . . ." Harmon v. Thornburgh, 278 App. D.C. 382, 878 F.2d 484, 495 n. 19 (D.C. Cir. 1989) (emphasis in original), cert. denied sub. nom. Bell v. Thornburgh, 493 ...