Vice President as do regular OEOB passholders;
c. The domestic and foreign press have access to the White House Press Room which is located on the north side of the West Wing of the White House, is closer to the West Wing and Oval Office than the OEOB, and has a view of the White House grounds.
d. There is no evidence that individuals entering the OEOB, including regular passholders, visitors, and others, are asked by the Secret Service to keep secret any information they observe from vantage points in the OEOB.
7. Based on the following facts, OEOB passholders and their guests do not have unique or special access to the President or Vice President such that the regular passholders or their guests pose a physical threat to the President or Vice President that is greater than the general risk the President or Vice President faces within and outside the OEOB when confronted with individuals not subject to random drug testing:
a. The entrance to the Vice President's office at the OEOB is manned by a Secret Service Agent, is always locked while the Vice President is in his office, and is restricted;
b. Although the President and Vice President visit the OEOB often, and although the President and Vice President may stroll the White House grounds, they are accompanied by their ever present Secret Service detail during said visits or strolls;
c. All entrants to the OEOB, regardless of passholder status, must pass through a magnetometer, pass their bags through an x-ray machine, and are subject to search by Secret Service agents;
d. Attendance at any event in the OEOB involving the President or Vice President requires a special invitation.
CONCLUSIONS OF LAW
1. The Fourth Amendment prohibits the government from conducting unreasonable searches. U.S. Const. amend. IV.
2. A random drug test is a search within the meaning of the Fourth Amendment. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989).
3. The reasonableness of a search, in the context of a random drug test not for the purpose of law enforcement, "'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.'" Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 616-18, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).
4. The Supreme Court and the Court of Appeals for the District of Columbia Circuit have found a strong governmental interest under the following circumstances, none of which are present in the case at bar : when an employee carries a firearm, see National Fed'n of Federal Employees v. Cheney, 280 U.S. App. D.C. 164, 884 F.2d 603, 612-13 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 948, 110 S. Ct. 864 (1990); when an employee is engaged in a safety sensitive occupation such as the operation of a train, see Skinner, 489 U.S. at 628; when an employee has access to classified or sensitive information, see Von Raab, 489 U.S. at 677; National Treasury Employees Union v. United States Customs Serv., 307 U.S. App. D.C. 173, 27 F.3d 623, 629 (D.C. Cir. 1994) (NTEU); Hartness v. Bush, 287 U.S. App. D.C. 61, 919 F.2d 170, 173-74 (D.C. Cir.), cert. denied, 501 U.S. 1251, 115 L. Ed. 2d 1055, 111 S. Ct. 2890 (1991); and when testing of high school athletes "was undertaken in furtherance of the government's responsibilities, under a public school system, as guardian and tutor of children entrusted to its care," Vernonia School Dist. v. Acton, U.S. , 132 L. Ed. 2d 564, 115 S. Ct. 2386, 2396 (1995).
5. A background investigation of a federal employee may lower, but does not eliminate, that employee's expectation of privacy regarding his or her bodily fluids, absent other intrusions (such as required medical examinations) not present in this case which may further diminish expectations of privacy. Cf. NTEU, 27 F.3d at 629.
6. The governmental interest in protecting the President and Vice President, while laudatory and essential, is not credible under the facts of this case. There is no evidence that the plaintiffs or their guests have access to "sensitive" information or that they have unique or special access to the President or Vice President such that the plaintiffs or their guests pose a physical threat to the President or Vice President. Accordingly, since the government does not have a legitimate interest in drug testing the plaintiffs, the government has no interest to tip the Constitutional scales in favor of drug testing as applied to the particular facts of this case.
7. In addition, while this Court abhors the sale, use, or distribution of drugs, it will not suspend the Constitution and the rights thereunto appertaining to federal employees when the government has not presented evidence implicating the types of circumstances set forth in P 4 of this Court's conclusions of law. While it may be that the government's program with respect to regular OEOB passholders may need revision, what revision is precisely needed is for another day and another case. The Secret Service, responsible for the safety of the President and Vice President and not a party to this case, and good lawyers can obviously deal with any exigencies that may exist regarding the security of the leaders of our Country, which, as the Court has already said, is essential for them and the general welfare of this Republic.
July 24th, 1996
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE
Based on the Court's Findings of Fact and Conclusions of Law of even date herewith, it is, by the Court, this 24th day of July, 1996,
ORDERED that the defendants are enjoined from administering a random drug test to the plaintiffs on the ground that the drug testing program, as applied to the plaintiffs under the particular facts of this case, violates their Fourth Amendment right to be free from an unreasonable search.
CHARLES R. RICHEY
UNITED STATES DISTRICT JUDGE