Harmon v. Meese

• Citation: 690 F. Supp. 65
• Decision Date: 29 July 1988
• Docket Number: Civ. A. No. 88-1766.
• Parties: Mark B. HARMON, et al., Plaintiffs, v. Edwin MEESE III, Attorney General of the United States, and Harry H. Flickinger, Assistant Attorney General, Defendants.
• Court: U.S. District Court — District of Columbia

690 F. Supp. 65

Mark B. HARMON, et al., Plaintiffs, v. Edwin MEESE III, Attorney General of the United States, and Harry H. Flickinger, Assistant Attorney General, Defendants.

Civ. A. No. 88-1766.

United States District Court, District of Columbia.

July 29, 1988.

Stephen H. Sachs, Carl Willner, Stephen M. Cutler, Wilmer, Cutler & Pickering, Arthur Spitzer, Elizabeth Symonds, American Civil Liberties Union, Washington, D.C., for plaintiffs.

John R. Bolton, Asst. Atty. Gen., Robert J. Cynkar, Mary E. Goetten, Peter Robbins, Brooke Hedge, U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM OPINION AND ORDER

REVERCOMB, District Judge.

This matter is before the Court upon plaintiffs' motion for a preliminary injunction and defendants' motion to dismiss and for summary judgment.

Plaintiffs are forty-two employees of the Department of Justice who seek to enjoin implementation of the Department's "Drug Free Workplace Plan" in the Offices, Boards and Litigating Divisions of the Department. Under the plan, plaintiffs would be selected at random and ordered to produce urine specimens in order to permit the Department to ascertain whether they illegally use drugs. Plaintiffs contend that subjecting them to compulsory urinalyses without any suspicion of illegal drug use would violate their fourth amendment right to be free from unreasonable searches and seizures. Defendants, the Attorney General of the United States and the Assistant Attorney General for Administration, contend that the urinalyses to be conducted under the plan would constitute reasonable searches and therefore would not violate the fourth amendment.

The Department's drug testing program was created pursuant to Executive Order 12564, issued by President Reagan on September 15, 1986, which directed the head of each executive agency to develop plans to test all employees in "sensitive positions" for drug abuse in order to combat the "serious adverse effects of drug use upon a significant proportion of the national work force which results in billions of dollars of lost productivity each year." 51 Fed.Reg. 32,889. In accordance with this presidential directive, Attorney General Meese unveiled the "Department of Justice Drug-Free Workplace Plan" on September 25, 1987 (amended December 17, 1987) (the "DOJ Plan"), authorizing testing of, among others, all employees with less than one year's service ("probationary employees") holding sensitive positions and all employees in sensitive positions designated for drug testing ("testing designated positions or TDPs"). On December 15, 1987, defendants issued the Drug Free Workplace Plan (the "OBD Plan") of the Offices, Boards and Litigating Divisions of the Department of Justice. On June 27, 1988, defendants issued OBD Order 1792.1, giving notice of the implementation of the OBD Plan. All procedural hurdles have thus been cleared, and drug testing may commence in accordance with the OBD Plan as soon as August 26, 1988.

The OBD Plan calls for random testing of seven percent of all employees in testing designated positions, and mandatory testing of all probationary employees holding testing designated positions and all individuals tentatively selected for employment. The testing would seek evidence of use of marijuana, cocaine, opiates, amphetamines and phencyclidine. Employees would be selected for testing by neutral selection criteria, such as social security numbers. Disciplinary action would be initiated against any employee who tested positive or refused to be tested. Such disciplinary action could take various forms, including dismissal, suspension, removal from duty from a sensitive position, or reprimand. The employee would also be referred to a rehabilitation program. After an employee has once been found to use illegal drugs, dismissal would be mandatory if that employee refused to obtain rehabilitation or tested positive for drug use a second time.

Testing designated positions are determined according to criteria enumerated in the DOJ Plan. The factors include the extent to which a DOJ component "considers its mission inconsistent with illegal drug use" or "must foster public trust by preserving employee reputation for integrity, honesty and responsibility." DOJ Plan at 17. Also considered significant are whether in a particular position an employee carries firearms, deals with "sensitive" information, engages in law enforcement or in "activities affecting public health or safety"; is involved in the prosecution of criminal cases; or has access to grand jury proceedings. Id. at 17-18. The OBD Plan has designated for mandatory random testing all applicants tentatively selected for employment, all employees with top secret security clearances, all attorneys and support staff involved in conducting grand jury proceedings, all presidential appointees, all employees who prosecute criminal cases, and all employees whose duties include maintaining, storing or safeguarding controlled substances.

Appendix A to the OBD Plan lists testing designated positions within various OBD offices and the reasons why those positions within the particular office merit drug testing. Positions deemed "sensitive" and designated for testing include, for example, the chief, economists, financial analysts, mathematical statisticians, financial assistants, social science analysts, and secretaries within the Antitrust Division's Economic Litigation Section. A description of the incumbents' duties indicates that they "analyze and advise on all economic issues that arise in Division cases and investigations, merger reviews, regulatory agency proceedings, and legislative matters." The positions are designated for drug testing because:

Impaired judgment and performance due to illegal drug use could result in a failure to consider adequately the economic implications of Division positions and actions, which could lead to higher prices, lower quality of goods and services, and lessened competitiveness of American businesses in world markets. Drug usage could also result in mishandling of Top Secret, grand jury, and other sensitive information, jeopardizing existing investigations and compromising both the integrity of the criminal enforcement process and national security.

OBD Plan, appendix A. Similar rationales are expressed for designating positions for drug testing within other sections of the Antitrust Division.

Similarly, trial attorneys in the Appellate Section of the Civil Rights Division are designated for drug testing because:

Illegal drug use by incumbents could constitute a serious breach of public trust and could compromise decisions regarding litigation and legislation, resulting in a negative effect on the overall success of the program.

Id.

Employees selected for providing urine samples would be required to follow procedures that would be "as non-intrusive as possible." Memorandum of Law in Support of Defendants' Motion to Dismiss at 23. The employee who had been selected for random testing would report to a collection site. After showing photo identification, removing outer garments and washing hands, the employee would be directed to a rest room stall and required to produce a urine specimen of at least 60 milliliters. The employee would not be watched unless the collection monitor had reason to believe the employee might alter or substitute the specimen. After the sample had been taken, the collection monitor, in the presence of the employee, would transfer the sample to a bottle and measure its temperature to ascertain that the sample had not been altered or substituted. An identification label with the employee's fingerprint and identification number would be placed around the bottle. The employee would then sign a log book which in turn would be initialed by the collection monitor. Strict chain of custody procedures would be in place to ensure accuracy of the test results. The sample would be transported to a laboratory meeting strict quality control guidelines. Samples that initially tested positive under a Radio-Immuno-Assay test would be retested by the more exacting gas chromatography/mass spectrometry technique, which is the most reliable indicator of the presence of drug metabolites in urine. The government concedes, however, that neither technique can measure current impairment, but rather can detect only whether the subject has used drugs relatively recently.

The Court agrees that drug abuse by federal employees is intolerable and that defendants' efforts to eradicate drugs from the federal workplace are well intentioned. It is the means defendants propose to achieve this laudable end that give the Court grounds for pause. Quite simply, the issue "is not whether drug use, off-duty or on-duty is incompatible with federal employment. Rather, the question is by what means it is permissible to come by evidence of such drug use." American Federation of Government Employees v. Weinberger, 651 F.Supp. 726, 735 (S.D.Ga. 1986) (emphasis in original).

Compulsory urinalysis of a public employee is a "search and seizure" because it infringes on a legitimate expectation of privacy. Jones v. McKenzie, 833 F.2d 335, 338 (D.C.Cir.1987); National Federation of Federal Employees ("NFFE") v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987); NFFE v. Carlucci, 680 F.Supp. 416, 430 (D.D.C.1988), stayed pending appeal, No. 88-5080 (D.C.Cir. Mar. 30, 1988); American Federation of Gov't Employees v. Dole, 670 F.Supp. 445, 447 (D.D.C.1987), appeal docketed, No. 87-5417 (D.C.Cir. Dec. 11, 1987). By its terms, the fourth amendment requires that governmental searches and seizures be reasonable. The reasonableness of a search depends upon the context in which it takes place. New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985). For example, to be reasonable, a public employer's search of his employee's desk and files need not be based upon a search warrant and probable cause, but...