Two unions seek to enjoin compulsory random urinalysis drug testing of certain civilian employees of the Department of the Army. These consolidated actions are before Court on plaintiffs' application for an expanded preliminary injunction and defendants' motion for summary judgment. As an employer the government has a compelling safety interest in some instances in maintaining a drug-free work place; it has not demonstrated however that urinalysis drug testing is capable of showing whether an individual is impaired by drugs or under the influence of drugs. Under Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 340-41 (D.C. Cir. 1987) urinalysis drug testing lacks the necessary nexus to the employer's safety concern to satisfy the Fourth Amendment. The government's nonsafety interests in maintaining a drug-free civilian work force are not sufficiently compelling to justify the substantial intrusion of mandatory random urinalysis. Thus the defendants have failed to show that the Army's civilian testing program is consistent with the Fourth Amendment. Accordingly Court shall deny defendants' motion for summary judgment and grant plaintiffs' application for an expanded preliminary injunction.

Court is aware that its decision cannot be squared with Mullholland v. Department of the Army 660 F. Supp. 1565 (E.D. Va. 1987) (upholding random urinalysis drug testing of civilian employees at Army air base) appeal docketed No. 87-2145 (4th Cir. Aug. 13 1987) and American Federation of Government Employees v. Dole 670 F. Supp. 445 (D.D.C. 1987) (upholding random urinalysis drug testing of employees of Department of Transportation) appeal docketed No. 87-5417 (D.C. Cir. Dec. 11 1987). On the other hand it is in conformity with Thomson v. Weinberger No. R-87-393 (D. Md. Feb. 27 1987) (granting preliminary injunction to two civilian employees of Department of Army) and Railway Labor Executives' Association v. Burnley 839 F.2d 575 1988 U.S. App. (9th Cir. 1988) (holding unconstitutional federal regulations mandating drug tests of railroad employees after certain train accidents). To date courts have confronted the difficult issues posed by random drug testing without benefit of direct guidance from the Supreme Court though Court recently granted certiorari in National Treasury Employees Union v. Von Raab 816 F.2d 170 (5th Cir. 1987) cert. granted 485 U.S. 903 108 S. Ct. 1072 99 L. Ed. 2d 232 56 U.S.L.W. 3590 (1988) (No. 86-1879). Court invites defendants to appeal this decision pursuant to 28 U.S.C. sec 1292(a)(1) (1982); additionally the Court respectfully suggests that Court of Appeals consolidate the appeal in this action with that in American Federation of Government Employees v. Dole and consider scheduling the cases for en banc hearing as presenting a question of exceptional importance. See Fed. R. App. P. 35(a)(2).

I. Procedural Background

The Army's program of random urinalysis drug testing of civilian employees has been the subject of no less than six court challenges since it was devised in 1986. Three of those suits have been consolidated into the present action. *fn1

The first of these consolidated cases was filed in this district under the name National Federation of Federal Employees v. Weinberger Civil Action No. 86-0681. Plaintiffs are the National Federation of Federal Employees (NFFE) a labor organization whose membership includes civilian employees of the Department of the Army; NFFE Local 2058 which represents a bargaining unit of 190 civilian guards employed by the Army at the Aberdeen Proving Ground in Maryland; and Charles W. Jackson a civilian Aberdeen guard and president of Local 2058. Defendants are the Secretary of Defense the Secretary of the Army and the commanding officer of Aberdeen Proving Ground.

This Court on June 23 1986 denied an application for a preliminary injunction and dismissed the case holding that it lacked subject matter jurisdiction when the union had not yet pursued its challenge before an appropriate administrative tribunal. National Federation of Federal Employees v. Weinberger 640 F. Supp. 642 (D.D.C. 1986). Court of Appeals for the District of Columbia Circuit reversed that decision on May 15 1987. National Federation of Federal Employees v. Weinberger 260 U.S. App. D.C. 286 818 F.2d 935 (D.C. Cir. 1987) (Edwards J.). Court of Appeals declined to decide the Fourth Amendment issues remanding the case for findings of fact with respect to the nature and scope of the drug testing program. Id. at 942. Court of Appeals did provide guidance on the constitutional issues however in the form of "general principles." Among them is the holding that compulsory urinalysis of public sector employees is a "search and seizure" within the meaning of the Fourth Amendment. Id. at 942-43. Court of Appeals also provided a framework for determining the reasonableness of compulsory urinalysis id. which of course will be utilized here.

The second case was filed as American Federation of Government Employees v. Weinberger in the Southern District of Georgia. Plaintiffs are the American Federation of Government Employees (AFGE) a labor organization representing civilian employees of the Department of the Army; AFGE Local 1922 which represents 2 200 civilian employees at Fort Stewart Georgia; and William Cox Thomas R. Daniels Joseph Lane and James Johnson civilian police officers employed by the Army at Fort Stewart. Defendants are the Secretary of Defense Secretary of the Army and the commander of operations at Fort Stewart. On December 2 1986 Court Edenfield issued a preliminary injunction against urinalysis drug testing of any civilian police officer at the Fort Stewart/ Hunter Army Airfield military installation absent reasonable suspicion that the employee has engaged in drug use. American Federation of Government Employees v. Weinberger 651 F. Supp. 726 (S.D. Ga. 1986). Court held that urinalysis drug testing without individualized suspicion is unreasonable under the Fourth Amendment. Id. at 733. Plaintiffs had requested a nationwide injunction but Court Edenfield saw fit to limit his order geographically so as not to conflict with this Court's earlier decision in National Federation of Federal Employees v. Weinberger 640 F. Supp. 642 (D.D.C. 1986). On June 29 1987 after Court of Appeals for the District of Columbia Circuit ruled in National Federation of Federal Employees v. Weinberger 260 U.S. App. D.C. 286 818 F.2d 935 (D.C. Cir. 1987) the Georgia District Court sua sponte ordered American Federation of Government Employees v. Weinberger transferred to this Court. The case was assigned Civil Action No. 87-1797.

The third case was filed as American Federation of Government Employees v. Weinberger in the Eastern District of California. Plaintiffs are the American Federation of Government Employees (AFGE); AFGE Local 1546 which represents 355 civilian employees at Sharpe Army Depot in Lathrop California; and Rosemarie Alyce Duff Dewey Lee Monseis M. Ramos Ronald George Spooner and Daniel I. Straight civilian guards and police officers at Sharpe Army Depot. Defendants are the Secretary of Defense the Secretary of the Army and the commander of Sharpe Army Depot. Plaintiffs sought a nationwide injunction against testing of civilian employees. Court declined to address the application for a preliminary injunction instead granting on August 4 1987 defendants' motion to transfer the case to this Court where it was assigned Civil Action No. 87-2350.

The three cases were consolidated in the present action and the Court received extensive briefing reviewed voluminous exhibits and heard oral argument on plaintiffs' motion for an expanded preliminary injunction and defendants' motion for summary judgment on September 16 1987.

II. Facts

A. Directive 1010.9

On April 8 1985 the Department of Defense issued Directive 1010.9 authorizing each military department to establish a Civilian Employees Drug Abuse Testing Program. Under the Directive civilian employees in "critical jobs" and applicants for those jobs may be required to participate (and to sign a form agreeing to participate) in urinalysis drug testing in the following four circumstances: 1) before appointment or selection; 2) periodically thereafter "on basis of neutral criteria"; 3) when there is probable cause to believe that the employee is "under the influence of a controlled substance *fn2 while on duty"; and 4) in the course of investigating an accident "for the purpose of accident analysis and the development of countermeasures."

Jobs could be designated as "critical" only if they fell in a category deemed "sufficiently critical to the DoD mission or protection of public safety that screening to detect the presence of drugs is warranted as a job-related requirement": 1) jobs in law enforcement; 2) "positions involving the national security or the internal security of the Department of Defense in which drug abuse could cause disruption of operations destruction of property threats to the safety of personnel or the potential for unwarranted disclosure of classified information"; 3) jobs involving protection of property or persons from harm.

The program has three stated purposes:

1. Assist in determining fitness for appointment or assignment to or retention in a critical job.

2. Identify drug abusers and notify them of the availability of appropriate Counseling referral rehabilitation or other medical treatment.

3. Assist in maintaining the national security and the internal security of the Department of Defense by identifying persons whose drug abuse could cause disruption of property threats to the safety of themselves and others or the potential for unwarranted disclosure of classified information through drug-related blackmail.

The Department of Defense's initiative is not rooted in the discovery of any particular drug problem among its civilian employees or any group of those employees. Rather the program is a result of two factors. The first is the success of the Department of Defense in curbing illegal drug use among military personnel through urinalysis drug testing including random urinalysis. Defendants cite surveys and studies showing a marked decrease in drug use after the uniformed services began widescale urinalysis testing. *fn3 In 1980 27 percent of military personnel reported nonmedical drug use within the past 30 days; in 1982 the figure declined to 19 percent and in 1985 the percentage dropped to 9 percent.

The second factor leading to the Department of Defense civilian drug testing program was the general national concern with the problem of illegal drug use. It is beyond dispute that the nation suffers immensely from illegal drug use and that workers impaired by drugs on the job are less safe reliable and productive. The defendants do not contend that this problem is particularly prevalent among federal workers *fn4 or civilian employees of the Department of Defense. For example a 1983 report based on a survey of 7 000 randomly selected civilian employees of the Department of Defense showed only 4 percent of those employees used drugs for nonmedical purposes within the past 30 days. Even the anecdotal evidence of on-duty drug abuse by civilian employees is sparse and unconvincing. *fn5 Additionally the results of compulsory random urinalysis fail to demonstrate a serious drug abuse problem among civilian employees of the Army. In the six-month period ending March 31 1987 the Army tested the urine of 5 397 employees covered by the Civilian Employees Drug Abuse Testing Program. A total of 37 positive results were obtained or.68 percent. *fn6 Thirty employees tested positive for marijuana metabolites; four tested positive for cocaine metabolites; and three tested positive for both marijuana and cocaine metabolites.

B. Executive Order No. 12 564

The Department of Defense authorized its Civilian Employees Drug Abuse Testing Program and the Army implemented it at a time when the nation was focusing increased attention on the problems caused by illegal drugs. On March 3 1986 the President's Commission on Organized Crime citing the failure of law enforcement efforts to reduce the supply of drugs recommended "suitable drug testing" for all federal employees and employees of federal contractors as part of a renewed effort to reduce the demand for illegal drugs. President's Commission on Organized Crime America's Habit: Drug Abuse Drug Trafficking and Organized Crime 450 483 (1986). On September 14 1986 the President and First Lady addressed the nation on television launching a "national crusade" against drug abuse. President's Address to the Nation: National Campaign Against Drug Abuse 22 Weekly Comp. Pres. Doc. 1183 1185 (Sept. 14 1986).

The next day September 15 1986 President Reagan signed Executive Order No. 12 564 "Drug-Free Federal Workplace " 3 C.F.R. 224 (1987) directing all agency heads to develop programs to test "for the use of illegal drugs by employees in sensitive positions " id. at 226 and condemning the use of illegal drugs "on or off duty." Id. at 225. The President stated that drug testing "shall not be conducted pursuant to this Order for the purpose of gathering evidence for use in criminal proceedings." Id. at 228. He added: "Agencies are not required to report to the Counsel General for investigation or prosecution any information allegation or evidence relating to violations of Title 21 of the United States Code received as a result of the operation of drug testing programs established pursuant to this Order." Id. (emphasis added.) *fn7

Some members of Congress expressed misgivings about the scope of the testing of federal employees contemplated by Executive Order No. 12 564. As part of a compromise Congress delayed widespread testing but exempted a number of agencies including the Department of the Army the Department of Transportation some employees of the Department of Energy the Central Intelligence Agency the Bureau of Prisons the Drug Enforcement Agency the Federal Bureau of Investigation the Immigration and Naturalization Service the Customs Service the Bureau of Alcohol Tobacco and Firearms and the Secret Service. Supplemental Appropriations Act of 1987 Pub. L. No. 100-71 sec 503 101 Stat. 391 468-71; see Wash. Post. Sept. 11 1987 at A1 col. 5 A18 col. 6. The Department of Transportation began random testing of half of its 60 000 civilian employees on September 10 1987. A court challenge to the testing program was rejected. American Federation of Government Employees v. Dole 670 F. Supp. 445 (D.D.C. 1987) appeal docketed No. 87-5417 (D.C.Cir. 1987). The Department of Justice is preparing to test up to 60 000 of its employees. *fn8 After a series of delays government-wide random drug testing of federal workers in "sensitive" positions could go into effect as early as May. *fn9

C. Interim Change I11 to Army Regulation 600-85

On February 10 1986 the Department of the Army promulgated regulations implementing Department of Defense Directive 1010.9. Army Regulation 600-85 Interim Change No. I11 (Feb. 10 1986). Interim Change No. I11 amends the existing Army Regulation 600-85 to include drug testing of civilians. It requires employees in critical jobs as well as applicants for those jobs to sign DA Form 5019-R titled "Condition of Employment for Certain Civilian Positions Identified as Critical Under the Drug Abuse Testing Program." Form 5019-R states:

SECTION A - REQUIREMENTS

As a prospective or current employee in a position designated by the Department of the Army and approved by the Office of the Secretary of Defense as critical to national or internal security or to the protection of persons or property you are required to read and sign this statement as a condition of employment. If you are an applicant for a critical job and fail to sign this agreement you will not be selected for the position. If you are currently in a critical job and refuse to sign the condition of employment you will be voluntarily or involuntarily reassigned or demoted to a noncritical job or separated from Federal employment. If you sign the condition and later refuse to submit to urinalysis testing you will be non-selected reassigned demoted or separated according to applicable regulations. To verify that you are not currently using drugs you will be required as a condition of your continued employment to submit a urine sample for testing purposes; (1) periodically on an unannounced basis (2) when there is probable cause to believe that you are under the influence of drugs and/or (3) when there is a mishap or safety investigation being conducted in relation to an accident involving government-owned vehicles aircraft or equipment. To assure the validity of these tests a staff member of the same sex will observe you while you are providing the sample. Detection of drug usage through confirmed positive urinalysis test results may be cause for a determination that you have failed to meet the conditions necessary for your continued employment in the position. Medically prescribed drugs authorized by a physician and confirmed by appropriate evidence are excluded from such determinations. The results of urinalysis will be used only for clinical and necessary administrative purposes. You are entitled to any additional and reasonable information or clarification you desire prior to signing the agreement. A copy of the signed agreement will be given to you and your supervisor. The original will be placed in your Official Personnel Folder.

SECTION B - AGREEMENT

This is to certify that I understand the contents of the policy described above and the reasons therefor and that I agree to adhere to the terms of this policy as a continuing condition of my employment in positions to which this agreement applies.

Interim Change No. I11 states that at least 90 days before the initial urinalysis test each employee holding a critical job must be informed of the reasons for the test and the consequences of failing the test or refusing to take it including "adverse action." Additionally employees must be told that they may submit supplemental medical documentation concerning the legitimate use of drugs and that drug abuse Counseling and referral services are available.

The regulation permitted "field testing" of urine samples but specified that positive results from field test of current employees would be considered preliminary until confirmed by subsequent laboratory testing or an admission of the employee. Only "temporary" personnel action may be taken on the basis of a positive result from a field test. The action must be rescinded if the test result is not confirmed by laboratory testing or an admission of the employee.

The regulation gives broad discretion to unit commanders to decide whom to test:

The decision to require an individual covered by the biochemical testing program to undergo such testing to detect drug abuse is the commander's prerogative. The management of available quotas both for field and laboratory tests is the commander's responsibility. He or she must decide which segments of the total population civilian and military are most at risk and allocate quotas accordingly. Beyond the pre-accession test for civilian employees in critical positions subsequent testing is left to the commander's discretion.

Interim Change No. I11 listed five categories of jobs designated as "critical" and subject to urinalysis testing:

1) Aviation positions: air traffic controller pilot aircraft engine mechanic aircraft overhaul specialist prop and motor mechanic aircraft mechanic and aircraft service.

2) Guard and police positions: guard police officer criminal investigator and correctional officer.

3) Personnel Reliability Program personnel: chemical and nuclear surety positions.

4) Alcohol and Drug Abuse Prevention and Control Program direct service staff.

5) All employees at Army forensic drug testing laboratories.

Defendants estimate a total of 9 400 of the Army's nearly 450 000 civilian employees are subject to random drug testing as follows: 2 800 in aviation positions; 3 700 in guard and police positions; 2 250 in the Personnel Reliability Program; and 650 in drug abuse and drug testing positions.

According to Raymond J. Sumser the Army's Director of Civilian Personnel a total of 65 job classes covering 20 000 employees were nominated by unit commanders as "critical" for purposes of drug testing. The Department of Defense reviewed the nominations and approved 16 job classes covering 9 400 employees as "critical" within the meaning of Department of Defense Directive 1010.9.

Sumser's declaration of August 20 1987 offered explanations of why each position was selected for the Civilian Employees Drug Abuse Testing Program:

Air traffic controllers -- Air traffic controllers provide information to pilots concerning weather air navigation and airfield conditions before and during flight. They provide information to pilots in distress orient lost pilots and initiate search and rescue action to locate overdue aircraft; control aircraft en route and near airfields to assure proper separation between aircraft and minimize delays caused by congestion. According to Sumser air traffic controllers "must have the ability to act decisively under stressful situations and maintain alertness over sustained periods of pressure. Controllers must be able to coordinate plans and actions and direct aircraft operating at very high speeds and exercise sound judgment to select and take the safest and most effective courses of action among several available choices."

Pilots -- Pilots of course fly aircraft; civilian pilots employed by the Army are responsible for transporting passengers and cargo including weapons munitions and other hazardous materials. "Performance of duties requires extreme precision in taxiing taking off climbing hovering approaching and landing using visual and instrument controls. In flight pilots must closely monitor sophisticated hydraulic electrical pressurization navigation and communications systems space patterns and fuel consumption."

Aircraft mechanics -- Aircraft mechanics inspect adjust and repair aircraft systems assemblies and surfaces. "Duties require visual checks of components parts and systems to determine the need for repair or replacement of parts and the extent of adjustment and alignment required as well as skills in the use of fixtures templates precision dial and feeder gauges test stands and cockpit instruments."

Aircraft attendants -- Aircraft attendants meet and guide aircraft to parking areas secure aircraft with wheel chocks ground wires lock pins and engine covers refuel aircraft operate ground support equipment such as auxiliary power units and service aircraft with oil hydraulic fluid compressed air nitrogen and liquid oxygen. "Aircraft attendants must be skilled in safe work procedures involving hazardous operations such as engine starts and shutdowns and refueling aircraft while engineers are operating ('hot' refuels). Attendants must exercise care to ensure that fuel hydraulic fluid engine oil and other vital fluids replenished during servicing procedures meet the exact technical specifications for the various types of aircraft being serviced."

Sumser stated that the duties of aviation personnel require "keen sensory perception and neuromuscular coordination. Drug use could easily have an adverse impact on these faculties and increase the potential for undue distractions carelessness and accidents . . . . Even slight impairment could reduce the ability of an employee occupying one of these positions to recognize and react to potentially threatening circumstances and materially lessen the chance of preventing accidents." He concluded that drug use by these employees could result in "disruption of operations damage or destruction of extremely high-value equipment personal injury and loss of life."

It is apparent from the Army's rationale for testing these aviation employees that the government's interest is safety and its safety concern is identifying employees who are impaired by drugs on duty.

The next category of "critical" positions is law enforcement. Sumser stated that civilian guards and police employed by the Department of the Army perform typical law enforcement duties and are responsible as well for the protection of Army installations from the hazards of espionage sabotage fire theft and accidental or willful damage or destruction. Frequently this property includes very dangerous weapons and facilities including nuclear and chemical munitions and electronics and communications systems of vital importance. Additionally these employees perform courier duties or otherwise have access to classified information. Most guards are required to possess at least a "secret" security clearance. On-duty security personnel are armed some with automatic weapons and are authorized to use deadly force in certain circumstances. Their duties include enforcement of drug laws. "Obviously great doubt is cast on the ability of a law enforcement official who personally uses illegal substances to perform required drug suppression duties."

Some law enforcement officials must perform their duties in relative isolation "without close and continuous supervision " Sumser stated. "These employees must at all times be able to think rationally and respond intelligently despite adverse circumstances and deal effectively in interpersonal confrontations. The inability to fully perform their duties due to drug use could readily create the possibility of theft security breakdown damage to or destruction of sensitive government property personal injury to self and others and loss of life."

From this rationale for testing civilian law enforcement employees it is possible to identify three government interests. The first is safety and again the government's safety concern is identifying employees who are impaired by drugs on duty. The second concern is security and the government's security concern is identifying employees who use drugs on duty or off duty because of the possibility of "drug-related blackmail." The third concern might be labeled integrity and this concern is identifying employees who use drugs either on duty or off duty.

Third employees who receive special access certifications as part of the Army's Personnel Reliability Program (PRP) are automatically subject to drug testing. These jobs include supervisory personnel who administer the Personnel Reliability Program nuclear reactor operators nuclear weapons technicians chemical ammunition maintenance specialists quality assurance personnel material handlers laboratory workers and intrusion detection system maintenance personnel. Additionally "other employees who require routine access to surety material or require routine entry into chemical or nuclear exclusion areas" are included; for example a secretary might be included in the Personnel Reliability Program not because of his or her duties but because the workplace was within a secured area.

"Personnel occupying PRP positions are responsible for the custody transportation storage maintenance demilitarization and security of nuclear and chemical surety materials. Failure to perform these responsibilities increases the risk of untoward incidents unnecessary costs and unsafe work environments. This could lead to the definite potential for unthinkable danger to the public destruction of property mission degradation and major security problems. Drug abuse by personnel in these jobs poses a serious threat to the individual fellow workers and the surrounding community. Disruption of operations critical to national defense readiness destruction of property injury to persons and disclosure of highly classified information could occur."

The first rationale for drug testing of PRP employees is safety and the government's safety interest is identifying employees impaired by drugs on duty. The second interest is security which is served by identifying employees using drugs on duty or off duty.

Finally civilian employees involved in drug and alcohol Counseling employees in the chain of custody of samples taken for testing and employees of Army drug testing laboratories are subject of urinalysis drug testing. "Obviously testing of these personnel is essential to the continued credibility and integrity of the ADAPCP [Alcohol and Drug Abuse Prevention and Control Program] and the Army's biochemical testing program. If ADAPCP staff are to function properly in assisting with identification and treatment of military and other civilian personnel with substance abuse problems they must be certifiably drug free."

The rationale for testing these employees is integrity which is served by identifying those who use drugs on duty or off duty.

Sumser's declaration makes clear that jobs were designated as "critical" (and therefore subject to drug testing) solely on the basis of their duties and the safety security and integrity interests implicated. The designations were not based on drug-related problems that had arisen among particular employees or any suspicion concerning drug use by a group of employees. For example the defendants cite no examples of "drug-related blackmail " though reference is made to it in Directive 1010.9 and the defendants' pleadings.

D. Changes in Interim Change No. I11

The Army made two significant changes in its civilian drug testing program after the issuance of Interim Change No. I11 on February 10 1986. The first followed Executive Order No. 12 564's requirement that "procedures for providing urine specimens must allow individual privacy unless the agency has reason to believe that a particular individual may alter or substitute the specimen to be provided." 3 C.F.R. 224 226-27 (1987). On October 10 1986 the Pentagon established procedures conforming to the presidential order and notified unit commanders as follows:

A. Biochemical testing will be done with maximum respect and concern for human dignity.

B. The term "biochemical test monitor (BTM) will be used instead of "observer" for the purpose of the civilian urinalysis program. The BTM has the responsibility to ensure that the sample is not contaminated or altered in anyway.

C. Care must be taken to ensure that the individual cannot access a container previously filled with a foreign substance or a prepared sample. For example employees/applicants should not be allowed to carry such items as briefcases carry bags or purses into the collection area coats for all employees/applicants should be left outside sleeves should be rolled up and a visual check of potential hiding places in the stall or collection area should be made prior to giving the employees/applicants the collection bottle.

D. Individual privacy shall be assured by permitting employees or applicants to produce urine specimens alone in closed stalls or other similar structures or enclosures. There will be no observation of any employee's or applicant's private anatomy. The BTM will maintain control of the integrity of the specimen by listening for normal sounds associated with urination and by oversight of the setting.

E. When the bottle is returned to the BTM he or she will verify the normal warmth and appearance of the sample.

F. If at any time during the testing procedure the BTM has reason to believe or suspect that an employee or applicant is attempting to adulterate or substitute the sample he or she should stop the procedure and inform the installation biochemical testing coordinator (IBTC) of that individual's conduct. The IBTC will then determine if direct observation is required. . . .

On March 19 1987 the Pentagon revoked the authorization for field testing of urine samples of employees. It ordered that "all samples of civilian employees will now be forwarded directly to the forensic toxicology drug testing laboratory (FTDTL) for testing. " The sole exception permitting continued use of field testing as a pre-screen is for persons selected for critical positions; a positive result would delay hiring until the laboratory test was conducted. The field testing used by the Army was the Enzyme Multiplied Immunoassay Technique (EMIT) System marketed by Syva Company. The Army laboratories use a radioimmunoassay (RIA) test and a gas chromatography/mass spectrometry (GC/MS) test which is considered the most reliable and acceptable method of testing for drugs or drug metabolites.

E. Uses of Drug Test Results

The Army considers its civilian drug testing program "non-punitive and non-disciplinary in nature " in the words of Samuel S. Horn Deputy Chief of the Labor and Civilian Personnel Law Office, Office of the Court Advocate General Department of the Army. Nonetheless failure to take the test or a positive result could result in dismissal.

Horn explained in an August 11 1987 declaration that a current employee in a critical position who does not want to be subject to drug testing could request reassignment to a noncritical position for which he or she was qualified. "If there is no noncritical job available at the same grade level the employee may be offered a job at a lower grade level. In the event there is no alternative noncritical position available into which the employee may be assigned the employee may be separated from the service."

Nor does a positive urinalysis result in automatic dismissal although dismissal may result. An employee will be offered drug Counseling or treatment and will be "reassigned to an available noncritical position for which he or she is qualified with no loss of pay or benefits. If no noncritical positions are available at the same grade level the employee will be offered a position at a lower grade if such a position is available. Only if no alternative noncritical positions are available will the employee be separated for failure to meet a condition of employment."

Horn also stated that employees who successfully complete a treatment and rehabilitation program are eligible to return to their former jobs. The report for the six-month period ending March 31 1987 attached to Horn's declaration shows that of the 37 employees who tested positive four resigned; five employees were fired two because of a "second positive two for "other reasons " and one who was a temporary employee; the other 28 employees were detailed or reassigned with 14 still in rehabilitation eight refusing rehabilitation and six successfully rehabilitated and returned to a critical job.

F. Army Test Procedures

The Army has abandoned EMIT field testing of urine samples of current employees and instead relies on a two-tier laboratory testing procedure. Lieutenant Colonel John S. Jewell who holds a Ph.D. in organic chemistry and serves as consultant to the Surgeon General of the Army for drug laboratory operations said in an August 10 1987 declaration that the initial test used by all military laboratories is the radioimmunoassay (RIA) test which is based on immunological principles. If the RIA test is positive a gas chromatography/mass spectrometry (GS/MS) test is conducted. A positive result is issued only after both tests have confirmed the presence of the drug or drug metabolite above an administratively defined cutoff level. The administrative cutoff level is designed to screen out positive results that could be associated with passive inhalation or "non-participative ingestion" of drugs.

Jewell offered this explanation of how the tests work:

The RIA procedure (Abuscreen) is based on a physical reaction between antibodies (substances manufactured in the bodies of animals or humans to assist the bodies' elimination and/or detoxification of these substances) and antigens (drugs) that causes physical separation of these substances from urine. The end point consists of measuring a decrease in the radioactivity found as a result of competitive binding reactions between naturally occurring drugs and drugs modified with radioactive Iodine-125. The RIA procedure correctly identifies the presence of drug or drug metabolites greater than 99% of the time.

The GC/MS procedure combines both the physical and chemical properties of the molecule to be identified with the analytical capabilities of the instrument. The first part of the procedure relies on the physical and chemical properties of the drug or drug metabolite to separate them from the urine matrix. Then the drug or drug metabolite is usually taken through a chemical derivitization that makes use of the chemical properties of the compound to separate it from other molecules of different chemical structure. Then the derivatized drug or drug metabolite of interest is separated from all other molecules by its physical properties using gas chromatography and an absolute identification is made through a mass spectrometer fragmentation pattern. This procedure is recognized as the state-of-the-art method and is 100% accurate for chemical drug or drug metabolite identification. The GC/MS identification has been accepted by the scientific community as being the most reliable and acceptable method for drug or drug metabolite identification.

The tests detect the presence of drugs in some cases drug metabolites in others. A drug metabolite is an inactive product resulting from the body's breakdown of a drug. Cocaine is generally detected by its metabolite benzoylecgonine; the active ingredient of marijuana delta-9-tetrahydrocannabinol (THC) is also detected by its metabolites principally THC-9-carboxylic acid (THC-acid). Morphine phencyclidine (PCP) amphetamines barbiturates and LSD are excreted directly into the urine. Declaration of Robert E. Willette Ph.D. June 3 1987.

Even "state-of-the-art" tests have severe limitations; for example defendants' Counsel informed Court that the Army no longer tests civilians for opiates because consumption of a quantity of poppy seeds before testing produces a "false positive" test result for opiates. In other words the most technologically advanced urine test cannot distinguish between a heroin user and a person who eats poppy seed strudel.

More importantly it is beyond dispute that urinalysis drug testing whether by the EMIT method the RIA method or the GS/MS method is not capable of determining whether a person is impaired or intoxicated by drugs. Courts focusing on the issue have agreed that urinalysis cannot show impairment *fn10 and government Counsel have conceded the point at oral argument and in their pleadings and submissions. Willette provides one reason for this incontrovertible fact: "Unfortunately the relationship between concentrations of certain drug metabolites in urine and their parent drugs in the body is obscured by fluctuations in urine flow sometimes in differences in metabolic rates and other individual characteristics." Only a blood test can show a correlation between the effects of drugs and their concentrations in bodily fluids. *fn11 As the testing technology now stands tests for only one substance can show impairment; that substance is alcohol.

The National Institute on Drug Abuse of the U.S. Department of Health and Human Services states flatly that urinalysis testing can detect only prior drug use not present impairment. "Although urine screening technology is effective in determining prior drug use positive results of a urine screen do not prove intoxication or impaired performance. Drugs or their metabolites any appear in urine for several days even weeks (depending upon the drug) without apparent impairment." National Institute on Drug Abuse Consensus Summary: Interdisciplinary Approaches to the Problem of Drug Abuse in the Workplace 6 (1986). *fn12

G. Alternatives to Urinalysis

Defendants have presented no evidence that alternative methods of detecting drug use have been seriously considered or attempted. Defendants merely note that the nature of some jobs makes close supervision difficult because the employees often work alone. They also point out that drug tests result in some positive results when a trained observer would detect no impairment; in light of the foregoing that is both not surprising and not supportive of the government's position. Executive Order No. 12 564 requires that each agency's drug testing plan include "supervisory training to assist in identifying and addressing illegal drug use by agency employees." 3 C.F.R. 224 226 (1987). However this requirement is not incorporated in Department of Defense Directive 1010.9 or Interim Change I11 to Army Regulation 600-85.

Alternative methods of detecting drug use by employees are suggested by the plaintiffs and criticized by the defendants in the pleadings before Court. Court also finds helpful Court Getzendanner's discussion of alternative methods of detection in Taylor v. O'Grady 669 F. Supp. 1422 1431-33 (N.D. Ill. 1987) (enjoining compulsory urine testing of county correctional officers).

The first alternative is observation by trained supervisors which can detect chronic drug use and some on-duty drug use; it cannot detect off-duty use that does not manifest itself on the job. The second alternative is neurobehavioral testing or testing the behavioral output of the brain to determine whether a worker's thinking or behavioral processes are impaired. There is no evidence in the record before Court that defendants have seriously considered either alternative.

III. Conclusions of Law

Plaintiffs raise a number of constitutional and statutory issues in addition to their main challenge under the Fourth Amendment. Court finds it unnecessary to address those issues at this juncture because Fourth Amendment considerations entitle plaintiffs to injunctive relief.

A. General Fourth Amendment Principles

The Fourth Amendment provides:

The right of the people to be secure in their persons houses papers and effects against unreasonable searches and seizures shall not be violated and no Warrants shall issue but upon probable cause supported by Oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

It restricts the activities of civilian authorities as well as law enforcement officers New Jersey v. T.L.O. 469 U.S. 325 335-37 83 L. Ed. 2d 720 105 S. Ct. 733 (1985) and applies to the conduct of governmental employers. O'Connor v. Ortega 480 U.S. 709 107 S. Ct. 1492 1497 94 L. Ed. 2d 714 (1987) (plurality opinion).

Fourth Amendment does not restrict all searches and seizures by the government but it does prohibit all unreasonable searches and seizures. Fourth Amendment analysis proceeds in two steps. First Court must determine whether the government's conduct constitutes a search or seizure by infringing upon a reasonable expectation of privacy. Compulsory urinalysis of public employees is a "search and seizure" in this Circuit. Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 338 (D.C. Cir. 1987); National Federation of Federal Employees v. Weinberger 260 U.S. App. D.C. 286 818 F.2d 935 942 (D.C. Cir. 1987) (NFFE). Second if a search or seizure occurred Court must determine whether it was reasonable.

The interest served by the Fourth Amendment is the protection of the "privacy and security of individuals against arbitrary invasions by government officials." Camara v. Municipal Court 387 U.S. 523 528 18 L. Ed. 2d 930 87 S. Ct. 1727 (1967). To safeguard this interest "one governing principle justified by history and by current experience has consistently been followed: except in certain carefully defined classes of cases a search of private property without proper consent is 'unreasonable' unless it has been authorized by a valid search warrant." Id. at 528-29. Even where warrantless searches are permitted they ordinarily "must be based upon 'probable cause' to believe that a violation of the law has occurred." T.L.O. 469 U.S. at 340.

However neither a warrant nor probable cause is an irreducible requirement of a valid search and seizure. "The fundamental command of the Fourth Amendment is that the searches and seizures be reasonable and although 'both the concept of probable cause and the requirement of a warrant bear on the reasonableness of a search . . . in certain limited circumstances neither is required.'" Id. at 340 (quoting Almeida-Sanchez v. United States 413 U.S. 266 277 37 L. Ed. 2d 596 93 S. Ct. 2535 (1973) (Powell J. concurring)).

There are even some rare circumstances where individualized suspicion is not necessary to validate a search. T.L.O. 469 U.S. at 342 n.8. Nevertheless "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure " id. (quoting United States v. Martinez-Fuerte 428 U.S. 543 560-61 49 L. Ed. 2d 1116 96 S. Ct. 3074 (1976)) and "exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal . . . ." T.L.O. 469 U.S. at 342 n.8.

Because the privacy intrusion represented by urinalysis is not "minimal " Jones v. McKenzie 833 F.2d at 339 ("strong privacy interests are involved") the Fourth Amendment requires a heavy presumption against searches not based on individualized suspicion. *fn13 Only a compelling need of the government as employer could justify dispensing with the requirement of individualized suspicion. Random testing of course is based on no suspicion whatsoever and there exist no grounds at all for suspecting that the search represented by urinalysis will turn up evidence. Indeed the government's goal is to obtain no positive results.

The Supreme Court has been guided by a twofold inquiry in determining whether a search without a warrant or probable cause is reasonable: "first one must consider 'whether the . . . action was justified at its inception.' Terry v. Ohio 392 U.S. [1] 20 88 S. Ct. 1868 20 L. Ed. 2d 889 [(1968)]; second one must determine whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place ' ibid." T.L.O. 469 U.S. at 341.

This requirement that both the inception and scope of the intrusion be reasonable applies to the government workplace. O'Connor v. Ortega 107 S. Ct. at 1502-03. Determining the "standard of reasonableness applicable to a particular class of searches requires 'balanc[ing] the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion. '" Id. at 1499 (quoting United States v. Place 462 U.S. 696 703 77 L. Ed. 2d 110 103 S. Ct. 2637 (1983)).

The D.C. Circuit elaborated on this inquiry in the context of compulsory urinalysis in NFFE:

On the one side of this balance in the matter at hand are the employees' reasonable expectations of privacy -- those expectations which society is "prepared to recognize as legitimate." On the other side of the balance s "the governmental interest [in] the efficient and proper operation of the workplace." This balancing inquiry has two reference points: Court must determine first "whether the [search] was justified at its inception "-- i.e. whether "reasonable grounds [exist] for suspecting that the search will turn up evidence" of work-related drug use; and second "whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place '" -- i.e. whether "the measures adopted are reasonably related to the objectives of the search and not excessively intrusive."

NFFE 818 F.2d at 942-43 (citations omitted). *fn14

B. Jones v. McKenzie

The D.C. Circuit again speaking through Court Edwards revisited drug testing of public employees recently in Jones v. McKenzie 266 U.S. App. D.C. 85 833 F.2d 335 (D.C. Cir. 1987). While the factual situation was somewhat different the case has elements in common with the case sub judice. Jones v. McKenzie involved drug testing in the context of a regular medical examination not random testing of school bus drivers mechanics and attendants employed by the District of Columbia Public School System. The testing program arose from a perceived "drug culture" among the employees and the record contained repeated incidents of "bizarre or dangerous drug-related behavior by drivers and attendants while on duty." Id. at 336. Syringes and bloody needles were found in restrooms and the head of the Transportation Branch estimated 60 percent of the employees were using narcotics. In response to this perceived problem the School System decided to include drug testing in its medical examinations and so notified the employees. Id. at 336-37.

The purpose of the tests was to enforce a long-standing directive prohibiting employees "to possess use or be under the influence of intoxicating liquors narcotics or other drugs such as LSD marijuana and the like while on school premises." Id. at 337. Employees were required as part of medical examinations to provide urine specimens in the privacy of a restroom. The samples were tested with the EMIT Cannabinoid Urine Assay. An employee who was fired after a positive test for THC metabolites filed suit in district court. Court held the testing was an unreasonable search "in the absence of particularized probable cause." Jones v. McKenzie 628 F. Supp. 1500 (D.D.C. 1986) (order).

Court of Appeals reversed as to the requirement of "probable cause " holding that testing could be required when safety interests were high the testing was part of a routine employment-related medical examination and "the test employed is one that has a nexus to the employer's legitimate safety concern." Jones v. McKenzie 833 F.2d at 340.

Court found or rather found the School System had conceded that the EMIT test used "is not a valid measure of whether the subject is in possession of is using or is under the influence of illicit drugs at the time of the test. As this test therefore lacks a sufficient nexus to the appellant's legitimate concern that its employees not possess use or be under the influence of drugs while on duty it is clear that the School System could not constitutionally test its employees for drugs in the manner Jones was tested . . . ." Id. at 339.

The more sophisticated RIA and GS/MS tests used by the Department of the Army are perhaps more reliable than the EMIT test but they do not reveal any more information about whether a person is impaired by or under the influence of drugs while on duty. Like the EMIT test they detect only relatively recent drug use.

C. Application of the Law to This Case

1. Justified at Inception

The first prong of the reasonableness test is whether the search is justified at its inception. The government has advanced three interests in compulsory random urinalysis. Only "strong governmental concerns" can outweigh the privacy interests involved here Jones v. McKenzie 335 F.2d at 340. The first interest is safety of the workers the workplace and the public. This is an important and serious interest. "The case law on this point is clear that a governmental concern is particularly compelling when it involves the physical safety of the employees themselves or others." Id. This interest is served by detecting on-duty impairment. At this stage of the scientific development of drug testing urinalysis testing does not advance this interest because there is no convincing evidence that a positive result can ipso facto be equated to on-duty impairment. Off-duty drug use does not automatically mean on-duty impairment any more than off-duty consumption of alcoholic beverages means on-duty impairment.

The second interest is security. This too can be a compelling interest in the context of the nation's defense. The government argues that on-duty drug use could lead to breaches of security directly and that off-duty drug use could lead to breaches of security because of bribery or blackmail possibilities. No evidence correlating off-duty drug use to bribery and blackmail has been produced and on the facts presented to date Court considers this relationship speculative. *fn15

The third interest is integrity. The government argues that those responsible for enforcing the law and conducting the testing program must be "certifiably drug free" if they are to have the respect and confidence of those they police and test and of the public. Under this rationale all Cabinet officers and the President should undergo random drug testing. Court finds this interest less compelling than safety and security. The government has presented only supposition but no evidence of any harm that would occur if the personnel were not "certifiably drug free." This interest of course would be advanced by testing for any drug use off-duty as well as on-duty. *fn16

On the issue of whether the search represented by compulsory random urinalysis is "justified at its inception " Court concludes as follows:

The government's safety interest where compelling justifies testing for on-duty impairment. Safety does not justify testing for off-duty drug use because there is insufficient demonstrable effect on workplace safety.

The government's security interest where compelling justifies testing for on-duty impairment. Security does not justify testing for off-duty drug use because there is insufficient showing that off-duty drug use is related to security.

The government's interest in integrity as presently articulated as to the job categories under consideration does not justify testing for off-duty drug use because the interest is not sufficiently compelling in the face of the intrusion represented by random urinalysis and because there is insufficient evidence suggesting that employees must be "certifiably drug-free" to perform their duties.

To summarize compulsory random urinalysis is justified at its inception by compelling safety and security concerns that would be jeopardized if employees were impaired or under the influence of drugs while on duty. Testing for off-duty drug use is not justified at its inception because the government's interest in integrity as presented in this record is not sufficiently compelling and the government's safety and security concerns are not jeopardized by off-duty drug use with not on-duty consequences.

2. Related in Scope

The next step in the analysis is to determine "whether the search as actually conducted 'was reasonably related in scope to the circumstances which justified the interference in the first place.'" T.L.O. 469 U.S. at 341 (quoting Terry v. Ohio 392 U.S. at 20).

Here the search as actually conducted is not reasonably related to the justification in two ways: first urinalysis is not "reasonably related" to the justification because as the technology now stands it fails to show whether an employee is impaired on the job. This is the same conclusion reached by the Ninth Circuit recently in Railway Labor Executives ' Association v. Burnley 839 F.2d 575 588 1988 U.S. App. (9th Cir. 1988). In that case federal regulations mandating drug tests of employees after certain train accidents were struck down as unreasonable under the Fourth Amendment. Court found suspicionless testing constitutionally infirm because the tests do not detect on-the-job drug use:

We see one flaw in the reasonableness of this approach to the problem. Blood and urine tests intended to establish drug use other than alcohol are not reasonably related to the stated purpose of the tests because the tests cannot measure current drug intoxication or degree of impairment.

Id.

Second urinalysis is "excessively intrusive" because it reveals information in which the employee has a legitimate expectation of privacy concerning his or her personal life while off-duty. *fn17 In short the test employed fails to validly detect the activity with which the government is legitimately concerned.

Whether random urinalysis is "excessively intrusive" turns on whether less intrusive but effective alternatives are available. Both trained supervision and neurobehavioral testing can usually detect those who are impaired at work because of drug use something urinalysis drug testing cannot do. Thus to the extent that the legitimate government interest is served by detecting on-duty drug use less intrusive alternatives make random urinalysis excessively intrusive.

It is worth noting that the random urinalysis testing at issue here is more intrusive than the regular or announced testing as part of an employment-related medical examination reviewed in Jones v. McKenzie. The only "notice" given of the Army testing program is that an employee is henceforth subject to random unannounced testing; the employee's only alternative to undergoing testing is giving up the "critical" job. The testing also is more intrusive than that in Jones v. McKenzie because it occurs in the work setting not in a physician's office or other medical facility. While the Army's procedures were changed to provide more privacy in that no visual observation is permitted absent suspicion of tampering the intrusion can only be minimized not eliminated. The act of urinating is still "observed" by senses other than sight.

Accordingly as it now stands absent some scientific advances urinalysis is both not "reasonably related" to the government's safety interest and is "excessively intrusive " and therefore necessarily violates the Fourth Amendment. Illegal drugs are an enormous and dangerous problem in this country. It is with some regret that Court removes what might be a powerful weapon from the nation's arsenal in the campaign against illegal drug use but the values represented by the Constitution and the Fourth Amendment are transcendent.

Court's analysis has been guided by the teachings of the Supreme Court on general Fourth Amendment principles and Court of Appeals for the District of Columbia Circuit on drug testing of public employees. It has striven to be faithful to controlling precedent even where Court might have reached a different result were it writing on a blank slate. No attempt has been made to line up the many cases decided by federal and state trial and appellate courts on this difficult subject first because they are not relevant to the extent that they depart from cases decided by this Circuit and second because they simply cannot be lined up. Court across the nation have struggled to balance the public and private interests at stake often reaching irreconcilable results. The prospect of Supreme Court guidance is a welcome one.

IV. Standards for a Preliminary Injunction

Four factors are to be considered in determining whether a preliminary injunction is warranted: 1) the likelihood that the party seeking the preliminary injunction will prevail on the merits; 2) the likelihood that the moving party will be irreparably harmed absent such relief; 3) the prospect that others will be harmed if the court grants a preliminary injunction; and 4) the public interest in granting the relief sought. Washington Metropolitan Area Transit Commission v. Holiday Tours Inc. 182 U.S. App. D.C. 220 559 F.2d 841 842-42 & n.1 (D.C. Cir. 1977); Virginia Petroleum Jobbers v. FPC 104 U.S. App. D.C. 106 259 F.2d 921 925 (D.C. Cir. 1958).

Here Court finds it likely the plaintiffs will prevail on the merits of their Fourth Amendment claim. The law is well settled that the burden is on the government to show that a warrantless search is reasonable under the Fourth Amendment. "Those seeking to invoke an exception to the warrant requirement bear the burden of establishing that circumstances required dispensing with that requirement." United States v. Longmire 761 F.2d 411 417 (7th Cir. 1985) (collecting cases); see also 4 W. LaFave Search and Seizure sec 11.2(b) at 218 (2d ed. 1987) (burden on defendant when attacking search pursuant to warrant; burden on government when warrantless search is attacked). Here the government has failed to demonstrate that compulsory random urinalysis is justified at its inception and reasonably related to the objectives and not excessively intrusive.

Without the relief requested plaintiffs must undergo an unconstitutional search or face transfer demotion or even dismissal. No substantial harm to other parties will result from a preliminary injunction because urinalysis drug testing does not detect drug-related impairment on the job and other methods of detecting such impairment are available. Finally Court concludes that the public interest lies in enjoining unconstitutional searches.

V. Conclusion

For these reasons Court shall preliminarily enjoin the Department of the Army from compulsory random urinalysis of its civilian employees under Army Regulation 600-85. An order consistent with the foregoing accompanies this memorandum opinion.

ORDER

Pursuant to Fed. R. Civ. P. 25(d)(1) it is this 1st day of March 1988

ORDERED that Frank C. Carlucci Secretary of Defense is substituted as defendant in this consolidated action for Casper Weinberger who has resigned as Secretary of Defense.

ORDER

Upon consideration of plaintiff's motion for an expanded preliminary injunction defendants' motion for summary judgment the oppositions and replies thereto supporting memoranda oral argument and the entire record herein and for the reasons set forth in the accompanying Memorandum Opinion it is this 1^st day of March 1988

ORDERED that defendants are hereby restrained from implementing or enforcing Department of Defense Directive 1010.9 and Interim Change No. I11 amending Army Regulation 660-85 as they pertain to suspicionless drug testing of civilian employees of the Department of the Army. Defendants are specifically enjoined from conducting any urinalysis or other drug test unless the test is based upon a reasonable articulable and individualized suspicion that a specific employee is under the influence of drugs or alcohol while on duty; it is

FURTHER ORDERED that security pursuant to Fed. R. Civ. R. 65(c) is set in the amount of $ 0.00 and no bond need be posted.