The opinion of the court was delivered by: RICHEY
The two plaintiffs are long-time career Economists with the Office of Management and Budget, Executive Office of the President (EOP). Their offices are located in the New Executive Office Building on Lafayette Square in Washington, D.C., but they hold passes to the Old Executive Office Building (OEOB) so as to enable them to see their supervisors. Pursuant to the EOP's drug testing plan promulgated pursuant to Executive Order 12,564, 51 Fed. Reg. 32,889 (Sept. 17, 1986), the plaintiffs are subject to random drug testing because they hold regular passes to the OEOB. On June 12, 1996, plaintiff Stigile was randomly selected for drug testing. Although in a "testing-designated position," plaintiff Balis has not yet been randomly selected for testing.
The government contends that the drug testing of the plaintiffs is necessary to ensure the safety and security of the President and Vice President. The question presented is whether, under the facts in this case, the plaintiffs have a Fourth Amendment right to refuse to submit themselves to a random drug test.
On July 10, 1996, with the consent of the defendants and pursuant to Rule 65(e) of the Federal Rules of Civil Procedure, the Court held a combined hearing on the plaintiffs' motion for a preliminary injunction and the merits of the plaintiffs' Complaint. After consideration of all the evidence presented in this case, the Court makes the following factual findings and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure:
1. The plaintiffs hold regular passes to the OEOB which provide them with 24 hour access to common areas of that building as well as to picnic grounds outside of the building.
2. There is no evidence in this case that OEOB passholders are more likely to use drugs than not, nor is there any evidence of a drug abuse problem by OEOB passholders.
3. The plaintiffs are subject to random drug testing under the EOP's program solely because the plaintiffs hold regular passes to the OEOB.
4. The government has not submitted any evidence, only argument, that employees who use illicit drugs are susceptible to blackmail or pose a safety hazard to fellow workers in a white collar office environment. However, based on the Supreme Court's holding in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 664, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), the Court finds that employees who use drugs, either on or off-duty, are susceptible to blackmail.
5. It is undisputed that the plaintiffs do not have a security clearance or access to classified documents, nor do they hold passes to the White House.
6. Certain common areas, or "vantage points", of the OEOB and the picnic grounds outside the building have views of the West Wing of the White House and the surrounding White House grounds. However, the facts belie the government's allegation that the plaintiffs' access to the aforementioned "vantage points" at the OEOB and the picnic area provides the plaintiffs and their guests with "sensitive" or secret information regarding the OEOB, the White House grounds, and the comings and goings of the President and Vice President:
a. A number of other federal buildings on Lafayette Square in Washington, D.C. also have views of the West Wing of the White House and the surrounding grounds;
b. Approximately 600 interns and a number of other individuals not subject to drug testing, including federal employees, contractors, and private sector maintenance personnel, have access to the same common areas of the OEOB as regular OEOB passholders. Many of these non-regular OEOB passholders have sufficient access to the vantage points to make the same observations about the OEOB, the White House grounds, and the comings and goings of the President and 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 ...