Willner v. Thornburgh, Civ. A. No. 90-0535.

CourtUnited States District Courts. United States District Court (Columbia)
Citation738 F. Supp. 1
Docket NumberCiv. A. No. 90-0535.
PartiesCarl WILLNER, Plaintiff, v. Richard L. THORNBURGH, et al., Defendants.
Decision Date15 May 1990

Stephen H. Sachs, Stephen M. Cutler, Washington, D.C., for plaintiff.

Peter Robbins, U.S. Dept. of Justice, Washington, D.C., for defendants.

MEMORANDUM

GESELL, District Judge.

This is yet another case concerning the federal government's effort to create a drug-free workplace for its employees by compelling urine drug testing without any suspicion of drug use. In this instance, the individual plaintiff, Carl Willner, challenges drug testing required during pre-screening of new employees under the Department of Justice Drug Free Work Place Plan ("DOJ Plan") adopted pursuant to Executive Order 12,564, which declared, inter alia, that "persons who use illegal drugs are not suitable for Federal employment."

Willner is an attorney who has been in private practice in the District of Columbia. He has been tentatively accepted for employment by the Antitrust Division of the Justice Department. His position would not require access to Top Secret classified information, at least initially. Nevertheless, pursuant to standard practice under the DOJ Plan, Willner was asked to submit to a urine test to determine possible recent drug use. He refused as a matter of principle and brought this action to test the constitutionality of this aspect of the DOJ Plan.

The case is before the Court on Willner's motion for preliminary injunction, which has been fully briefed and was argued on April 24, 1990. Because the motion papers, which include declarations and supporting data, fully present the issues, and controlling facts are undisputed, the Court will dispose of the case on the merits pursuant to Fed.R.Civ.P. 65(a)(2).1

A one-time mandatory pre-employment screening urine test is required of all attorneys accepted for positions in the Department of Justice's Offices, Boards and Divisions (OBD) component, which includes the Antitrust Division. Under the current, revised OBD plan, every individual tentatively selected for employment in OBD must provide a urine sample for drug testing in ordered to be hired. The relevant testing procedures are detailed in the Supreme Court's decision in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 1388-89, 103 L.Ed.2d 685 (1989). In general, the applicant is provided 48 hours advance notice. The applicant must go to a designated testing location and provide a sample behind a partition or stall with an attendant present outside. The attendant does not observe the urination unless there is reason to suspect tampering.

It is well settled that a non-consensual urine drug test is a search governed by the requirements of the Fourth Amendment to the Constitution. Von Raab, 109 S.Ct. at 1390. However, suspicionless testing is not unconstitutional per se, so long as it serves some government interest beyond the normal need for law enforcement. Id. In such cases, though, a reviewing court must "balance the individual's privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context." Id.

Various urine drug testing plans affecting federal employees have been the subject of various court decisions. The courts in this Circuit have applied the Fourth Amendment on a case-by-case basis. Suspicionless testing of employees or applicants, when allowed, has been carefully restricted to persons with special duties of particular public consequence, such as those requiring security clearance, those having direct involvement in jobs affecting public safety, and those working directly with aspects of drug enforcement. See Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990); National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990); American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1960, 109 L.Ed.2d 1960 (1990); Transportation Institute v. U.S. Coast Guard, 727 F.Supp. 648 (D.D.C.1989).

In Harmon, the Court of Appeals held that the government's interests in workforce integrity, public safety, and protecting sensitive information did not make reasonable under the Fourth Amendment OBD's plan for random drug testing of certain existing employees, including Antitrust Division attorneys. While the Court of Appeals upheld random testing for employees with access to Top Secret classified information and suggested that drug testing of drug prosecutors would be permissible, it rejected the Department's plan to drug-test all criminal prosecutors and all employees with access to grand jury materials. The central issue in this case, then, is whether, between a current Antitrust Division attorney and an applicant for such a position, there is a constitutional distinction that would render the testing of the latter permissible under the Fourth Amendment.

The Department's position stems from its appraisal of the drug problem in the work place expressed in the following terms when the DOJ Plan was announced:

Studies show that employees who use drugs tend to be less productive and less reliable. Impairments from the use of illegal drugs can linger for days beyond the time the use may recognize the immediate effects of the drug. Even for employees who use drugs off-duty, then, illegal drug use can have an unpredictable impact on judgment and performance on duty. And, of course, there is no guarantee that an employee using drugs off-duty will not someday soon begin using illegal drugs on the job. Drugs can induce changes in behavior that endanger co-workers or members of the public. Drug-users may also be susceptible to espionage, bribery, and blackmail.

There is no basis in fact to dispute the Department's original view of the possible consequences of employees' drug use or these observations, although the examples of actual known use by Department of Justice workers are relatively few.

In support of its pre-screening test program, the Department emphasizes that an individual can avoid testing by withdrawing his application when notified of the testing requirement and argues (1) that the expectation of privacy and resulting invasion of privacy are less than that which occurs in the case of an existing employee singled out for random testing; and (2) that the need for drug testing of applicants is enhanced by the reduced opportunity to observe these individuals as compared to existing employees.

The Department's argument has little force in light of the Court of Appeals' decision in Harmon. The clear thrust of Harmon is not that existing employees have such strong privacy expectations as to overcome strong government interests in drug testing or that the opportunity to observe them is sufficient to foreclose the need for testing. See 878 F.2d at 489. Instead, Harmon rested on the court's firm rejection of the purported government interests in such testing. Harmon examined the three interests recognized as valid by the Supreme Court in Von Raab, workforce integrity, safety, and protecting sensitive information, and concluded that none of them were of value for most of the employees represented by the Harmon plaintiffs, including Antitrust Division attorneys without access to Top Secret information.

The Court of Appeals rejected the workforce integrity interest on the ground that "Von Raab ... suggests that the government may search its employees only when a clear, direct nexus exists between the nature of the employee's duty and the nature of the feared violation." 878 F.2d at 490. Harmon gave as an example of where there was no such nexus with drug use the case of "an attorney who prosecutes antitrust or securities fraud cases." 878 F.2d at 491. Plainly, then, the required nexus is lacking in Willner's case.

The Court of Appeals rejected the safety interest on the ground that an error by a Justice Department employee created only an "indirect risk ... wholly different from the risk posed by a worker who carries a gun or operates a train." 878 F.2d at 491. Willner is not seeking a position that puts him in a position to create direct safety risks as defined by the Court of Appeals.

Finally, the Court of Appeals rejected the sensitive information interest except with respect to employees whose jobs required Top Secret clearances, reasoning that "caution should be used in approving this justification for testing." The declaration of John W. Clark, deputy director of operations for the Antitrust Division, indicates that work in the division may require access to Top Secret classified information, that two attorneys in the Communications and Finance section, where Willner has been assigned, have standing Top Secret clearances, and that others may be required to obtain such clearances on relatively short notice. Willner, however, rests on the assurances of section officials that the position he seeks "would not require" him to obtain Top Secret clearance. It is clear, then that he has made a choice to sacrifice potential opportunities within the division and any contribution he could make in sensitive cases if such assignments would require the drug testing to which he so strenuously objects.2

Nothing in the Court of Appeals' discussion rejecting the validity of these government interests provides any basis for arguing that the analysis should be any different in the case of a job applicant. Thus the law of this Circuit does not allow this Court to act on the basis of the Department's serious but generalized concerns. Nevertheless, the Court will briefly consider the distinctions between an incumbent employee and an applicant such as Willner to make certain that these factors do not...

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2 cases
  • Willner v. Thornburgh
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 5, 1991
    ...that would render the testing of the latter permissible under the Fourth Amendment" (Memorandum of District Court, May 15, 1990, at 4) 738 F.Supp. 1. The court found no such distinction and concluded that the government's interests in requiring the test were the same as those Harmon rejecte......
  • Ritchie v. Walker Mfg. Co., 91-1307
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • May 21, 1992
    ...search and seizures 3 in contradiction of a series of decisions holding drug tests unconstitutional. See e.g., Willner v. Thornburgh, 738 F.Supp. 1 (D.D.C.1990); Beattie v. City of St. Petersburg Beach, 733 F.Supp. 1455 In relying on these cases and the public policy that emanates from them......

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