878 F.2d 484 (D.C. Cir. 1989), 88-5265, Harmon v. Thornburgh

Docket Nº:88-5265.
Citation:878 F.2d 484
Party Name:Mark B. HARMON, et al. v. Richard L. THORNBURGH, Attorney General of the United States, et al., Appellants.
Case Date:June 30, 1989
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 484

878 F.2d 484 (D.C. Cir. 1989)

Mark B. HARMON, et al.

v.

Richard L. THORNBURGH, Attorney General of the United

States, et al., Appellants.

No. 88-5265.

United States Court of Appeals, District of Columbia Circuit.

June 30, 1989

Rehearing and Rehearing En Banc Denied Sept. 1, 1989.

Argued December 15, 1988.

Page 485

Appeal from the United States District Court for the District of Columbia Circuit (Civil Action No. 88-01766).

John R. Bolton, Asst. Atty. Gen., with whom Jay B. Stephens, U.S. Atty., and Leonard Schaitman, Atty. Dept. of Justice, Washington, D.C., were on the brief, for appellants.

Stephen H. Sachs, with whom Carl Willner, Arthur B. Spitzer and Elizabeth Symonds Washington, D.C., were on the brief, for appellees.

Before WALD, Chief Judge, and ROBINSON and SILBERMAN, Circuit Judges.

Opinion for the court filed by Chief Judge WALD.

Opinion concurring in part and dissenting in part filed by Circuit Judge SILBERMAN.

WALD, Chief Judge:

Appellants Richard L. Thornburgh, et al., on behalf of the United States Department of Justice ("DOJ" or "Department"), appeal from a permanent injunction issued by the district court. That injunction, as subsequently modified by this court, forbade DOJ to implement a random urinalysis drug-testing program covering three categories of Department employees: prosecutors in criminal cases, employees with access to grand jury proceedings, and personnel holding top secret national security clearances. We conclude that intervening decisions of the United States Supreme Court require that the injunction be modified to permit the testing of employees holding top secret clearances. We believe, however, that DOJ has failed to justify its requirement that all workers within the other two categories must submit to random drug testing. We therefore affirm the trial court's judgment as it pertains to these employees.

  1. FACTS

    1. The Testing Program

      On September 15, 1986, President Reagan issued Executive Order No. 12,564,

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      which called for various measures designed to create a "drug-free Federal workplace." 51 Fed.Reg. 32,889 (September 17, 1986). That order required, inter alia, that "[t]he head of each Executive agency shall establish a program to test for the use of illegal drugs by employees in sensitive positions." Id. at 32,890. Pursuant to the Executive Order, the "Department of Justice Drug-Free Workplace Plan" (the "DOJ Plan") was issued on September 25, 1987, and amended on December 17, 1987. On June 27, 1988, DOJ issued the "Department of Justice Drug-Free Workplace Program for the Offices, Boards and Divisions," OBD 1792.1 (the "OBD Plan"). On the same day, the Department notified its employees that random drug testing could begin as soon as 60 days thereafter.

      Under the OBD Plan, five categories of DOJ employees in "sensitive" positions may be subjected to random drug testing. 1 These categories include (1) "[a]ll incumbents currently authorized to have access to top secret classified information in accordance with Executive Order 12356"; (2) "[a]ll attorneys responsible for conducting grand jury proceedings and all personnel deemed necessary to assist such attorneys in the performance of their duties"; (3) "[a]ll incumbents serving under Presidential appointments"; (4) "[a]ll incumbents whose assigned position duties include the prosecution of criminal cases"; and (5) "[a]ll incumbents whose assigned position duties include maintaining, storing or safeguarding a controlled substance...." OBD Plan at 6 (J.A. 307). Under the OBD Plan, testing is to be conducted for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). Id. at 7 (J.A. 308).

      An employee selected for random testing will be notified on "the same day, preferably within two hours, of the scheduled testing." DOJ Plan at 18 (J.A. 670). The Department's procedures for obtaining and testing urine specimens are governed by the "Mandatory Guidelines for Federal Workplace Drug Testing Programs" issued by the Department of Health and Human Services (the "HHS Guidelines"). See 53 Fed.Reg. 11,970 (April 11, 1988). After arriving at the test site, the employee will present photographic identification and will remove any outer garment such as a coat or jacket. The individual will be supervised by a monitor of the same gender, but will be allowed to urinate within a stall or partitioned area. The toilet water will be tinted with a bluing agent to ensure that the water is not used to adulterate the specimen. After the employee has furnished a specimen, the monitor will inspect the sample to ascertain that a sufficient volume is present, and that the sample is of normal color and temperature.

      The laboratory to which specimens are sent will first employ an immunoassay test; any sample identified as positive will then be tested using gas chromatography/mass spectrometry (GC/MS) techniques. If this second test confirms the positive result, a Medical Review Officer shall "review and interpret" the test, "examin[ing] alternate medical explanations for any positive test result." 53 Fed.Reg. 11,985. Before verifying a positive result, the Officer must allow the employee an opportunity to discuss the test. 2 If the Officer verifies the positive result, the employee will be removed from his sensitive position and will be subject to disciplinary proceedings. Possible penalties range from a reprimand to dismissal. See Declaration of Joseph A. Norris III at 15 (J.A. 468). 3

    2. This Litigation

      The plaintiffs in this case include 38 attorneys, three paralegals, and one economist

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      in various divisions of the Department of Justice. Plaintiffs all occupy positions which have been designated for, or may be subject to, random drug testing. They filed suit on June 28, 1988, one day after the issuance of the OBD Plan. Their complaint requested that the district court declare the DOJ and OBD Plans to be unconstitutional; that it enjoin defendants from implementing drug testing under the Plans; and that it award costs and attorneys' fees. See Complaint at 20-21 (J.A. 28-29).

      On July 29, 1988, the district court issued a preliminary injunction against the implementation of the OBD Plan. Harmon v. Meese, 690 F.Supp. 65 (D.D.C.1988). The court noted that compulsory urinalysis, under our circuit's precedents, constituted a "search" governed by the fourth amendment. 4 Id. at 67. The trial judge also noted the absence of any documented drug problem within the Department. Id. at 68. The court concluded that the OBD Plan was unreasonable, and therefore proscribed by the Constitution, "because there is no nexus between fitness for duty, security and integrity on the one hand, and compulsory random urinalysis drug testing on the other, where no drug problem is believed to exist." Id. The court therefore ordered that "defendants are enjoined from implementing mandatory random drug testing by urinalysis in the Offices, Boards and Litigating Divisions of the Department of Justice under the 'Department of Justice Drug-Free Workplace Plan.' " Id. at 70. On the unopposed motion of the Department, the district court ordered that the preliminary injunction be made permanent. Id. On August 5, 1988, DOJ filed a notice of appeal.

      In its brief to this court, the Department pointed out that none of the plaintiffs was a Presidential appointee, nor was any plaintiff responsible for maintaining, storing, or safeguarding controlled substances. See Brief for Thornburgh at 26 n. 19, 32 n. 24. Therefore, DOJ argued, the plaintiffs lacked standing to challenge the OBD Plan insofar as it mandated the random testing of these categories of employees. On December 16, 1988, the day after oral argument, this court ordered that the injunction be modified to permit the random testing of workers in these categories. At present, therefore, the controversy is limited to the Department's requirement of random drug testing for federal prosecutors, workers with access to grand jury proceedings, and employees holding top secret national security clearances.

    3. Intervening Supreme Court Decisions

      Our disposition of this case is guided--and, to a large extent, controlled--by the Supreme Court's recent decisions in National Treasury Employees Union v. Von Raab, --- U.S. ----, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives' Association, --- U.S. ----, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In Von Raab, the Court upheld the requirement that workers seeking transfer or promotion to specified positions within the United States Customs Service must undergo urinalysis. In Skinner, the Court sustained Federal Railroad Administration regulations which required blood and urine tests for train workers in the event of certain types of railway accidents. These regulations also permitted, but did not require, the testing of employees who had been found to violate certain safety rules.

      From these decisions certain general principles may be gleaned. Urinalysis, if compelled by the government, is a "search" subject to the restrictions of the fourth amendment. See Skinner, 109 S.Ct. at 1412-13; Von Raab, 109 S.Ct. at 1390. However, individualized suspicion of a particular employee is not required by the Constitution. See Skinner, 109 S.Ct. at 1417; Von Raab, 109 S.Ct. at 1390. Nor is it necessary that a documented drug problem exist within the particular workplace at issue. See Von Raab, 109 S.Ct. at 1395 ("The mere circumstance that all but a few

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      of the employees tested are entirely innocent of wrongdoing does not impugn the program's validity."). Rather, "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the...

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