Court Cases Court Cases
AL  AK  AZ  AR  CA  CO  CT  DE  FL  GA  HI  ID  IL  IN  IA  KS  KY  LA  ME  MD  MA  MI  MN  MS  MO  MT  NE  NV 
NH  NJ  NM  NY  NC  ND  OH  OK  OR  PA  RI  SC  SD  TN  TX  UT  VT  VA  WA  WV  WI  WY  EO  NR  PR  DC  US 
 
View Case Details
 
NATIONAL ASSOCIATION OF AIR TRAFFIC SPECIALISTS et al. Plaintiffs
vs.
THE HONORABLE ELIZABETH DOLE et al. Defendants
 
Case:
Case No. A87-073 Civil
 
Location:
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA
 
Date:
March 27 1987 Decided and Filed
 
Attorneys:
JAMES S. RUCKLE JR. Wheaton Maryland SUSAN B.H. TANNENBAUM Baltimore Maryland ROBERT H. WAGSTAFF Anchorage Alaska For Plaintiffs
RICHARD K. WILLARD Assistant Counsel General ROBERT J. CYNKAR Deputy Assistant Counsel General MICHAEL R. SPAAN United States Counsel DEBORAH SMITH Assistant United States Counsel Anchorage Alaska BROOK HEDGE RICHARD GREENBERG MARY GOETTEN BRIAN KENNEDY ROBERT CHESTNUT Counsels Department of Justice Washington D.C. For Defendants
 
Author:
The Hon. Justice Fitzgerald
 

The Federal Aviation Administration (F.A.A.) has primary responsibility for the safety of the nationwide air traffic control system. Actual or potential abuse of drugs narcotics or alcohol by F.A.A. employees whose jobs have an impact upon air safety is a matter of serious agency and public concern.

The petitioners flight service specialists are required to undergo an annual medical examination in order to retain a medical clearance to perform safety-related duties within the F.A.A. The Administrator of the agency Donald Engen ordered implementation of the F.A.A.'s 'Substance Abuse Control Program on February 15 1987. The program required flight service specialists and other designated F.A.A. employees to provide urine specimens during their annual medical examinations to be tested in a laboratory for specified levels of opiates cocaine amphetamines cannabinoids (marijuana/THC) and phencyclidine (PCP). Each urine specimen is taken in a collection room without observation although the doors to the collection room are under observation. An employee may request an aliquot part of the specimen for testing at a laboratory of his or her choice but must assume the costs of the retest. If an employee's test is confirmed positive for an illegal substance the employee will be offered an opportunity to attend a drug rehabilitation program. The employee's medical clearance for safety-related duties will be withdrawn and the employee reassigned to other non safety-related duties. When the employee is able to pass a drug screening test and obtain the necessary medical clearance the employee may resume safety-related duties. A positive drug test also will provide reasonable suspicion that the employee is a substance abuser and will subject the employee to more intrusive observed random urinalysis testing for a period of one year. The United States Department of Transportation (DOT) is preparing a comprehensive random testing program to be implemented in late 1987 and the F.A.A. will be required to comply with 'the DOT drug testing program when that program is adopted.

The flight service specialists and their association have filed a complaint seeking injunctive and declaratory relief. Petitioners have requested a temporary restraining order and preliminary injunction to enjoin the taking of any urine specimens for the purpose of drug testing. The federal defendants have submitted an opposition to petitioners' application for injunctive relief and have filed a motion for summary judgment on all issues.

I now determine on the present record only those issues necessary to decide petitioners' application for injunctive relief. I defer ruling on other issues which may be considered on the respondents' motion for summary judgment. I do not consider the proposed random drug testing program of the Department of Transportation since the parameters of that program are not yet known.

For the reasons set out below I now deny the petitioners' application for a preliminary injunction. I reject respondents' contention that the urinalysis testing does not constitute a search under the Fourth Amendment. I find however that the testing is reasonable under the Fourth Amendment because public safety considerations outweigh the intrusion upon petitioners' legitimate expectation of privacy resulting from the taking of an unobserved urine specimen and testing the specimen for drugs.

I conclude that the F.A.A.'s Substance Abuse Control Program meets the requirements of reasonableness under the due process clause and that the program does not violate the self-incrimination clause of the Fifth Amendment.

Finally I conclude that the privacy article of the Alaska Constitution does not apply to the F.A.A. Substance Abuse Control Program and that petitioners do not have a comparable right to privacy under the federal constitution.

I. DISCUSSION

A. The F.A.A. Substance Abuse Control Program.

In September 1984 the Inspector General of the Department of Transportation issued a report which detailed the results of an audit of the F.A.A.'s Drug and Alcohol Awareness Program. The purpose of the audit was to evaluate the program's ability to identify refer for treatment or monitor F.A.A. employees whose drug alcohol or other problems affected work performance. According to the audit the F.A.A.'s Drug and Alcohol Awareness Program had failed to reveal to F.A.A. management the full extent of employee drug and alcohol problems thereby impairing the capability of the F.A.A. to perform its responsibilities and causing a loss of productivity within the agency. According to Administrator Engen's declaration in 1986 seven air traffic controllers employed at San Juan Puerto Rico five controllers from the Los Angeles Air Route Traffic Control Center five controllers from the Kansas City Center two controllers from the Miami Center fifteen controllers from the Los Angeles Center two from the Oakland Center one from the Atlanta Center two from the Kansas City Flight Service Center one from the Memphis Flight Service Station one from the Brunswick Georgia Flight Service Station one from the Miami Flight Service Station and one each from the Fort Lauderdale St. Petersburg and Tampa Bay Florida Airport Traffic Control Towers entered into drug rehabilitation programs. Declaration of Donald D. Engen Exhibit A to Respondents' Opposition at paragraph 6 (hereinafter Engen Declaration). Obviously the agency has evidence of a substance abuse problem involving personnel performing safety-related duties.

Upon receipt of the audit criticizing the F.A.A.'s Drug and Alcohol Awareness Program the Administrator directed that a new agency policy on substance abuse be drafted. The new policy was announced to all F.A.A. employees on August 14 1985. The Administrator declared that the purpose of the new policy is to emphasize the rehabilitation of substance abusers rather than to punish them. Engen Declaration at paragraph 5. The Federal Air Surgeon was ordered to prepare appropriate procedures to screen agency employees for substance abuse as a part of the periodic physical examination required for certain F.A.A. employees.

Flight service specialists are required to comply with the medical standards *fn1 established by the Office of Personnel Management. *fn2 In order to maintain their medical clearance flight service specialists must requalify each year in a medical examination. The yearly medical examinations are conducted either by F.A.A. physicians or by Aviation Medical Examiners qualified by the agency to give examinations. Section G(4) of the Retention Requirements provides in relevant part that a flight service specialist must have no clinical diagnosis of addiction habituation dependence or abuse of any narcotic or non narcotic drug since these constitute a threat of safety in the air traffic control system.

Declaration of John L. Jordan Exhibit F to Respondents' Opposition at 3.

The Federal Air Surgeon responded to the Administrator's directive of August 1985 by preparing proposed standards and procedures to screen designated employees *fn3 including flight service specialists for substance abuse by a periodic urinalysis program. As part of their annual medical examination flight service specialists were already required to submit urine specimens for diabetes mellitus testing. The proposed F.A.A. Substance Abuse Control Program was incorporated into the F.A.A.'s periodic urinalysis program by the Administrator's memorandum dated September 15 1986. On October 23 1986 the Administrator approved F.A.A. Order 3210.1 establishing policy and procedures for the control program and on February 15 1987 approved the final Action Notice 3900.2. See Engen Declaration at paragraphs 9-10. The Action Notice orders into effect a program of testing urine specimens for specified levels of amphetamines opiates cannabinoids (marijuana/THC) cocaine and phencyclidine (PCP). The program requires use of a chain of custody form to identify the urine specimen to be tested and includes information relating to use of prescription or nonprescription drugs taken or used within thirty days prior to the time the specimen is taken. See Final Action Notice 3900.2 appended to Engen Declaration at 2-3.

COVERAGE. Effective in February 1987 employees in the following categories who are required to have a periodic medical examination will be tested for substance abuse as a part of the medical examination.

a. Inspection/Flight Test Pilots (GS-2181)

b. Air Traffic Control Specialists (GS-2152) (Includes developmental and operational controllers first-line supervisors and other GS-2152 personnel who are required to maintain operational occurrence. This includes Air Traffic Managers in facilities where there are no subordinate supervisors.)

c. Aviation Safety Inspectors (GS-1825)

d. Civil Aviation Security Specialists (Federal Air Marshals) (GS-1801)

e. Firefighters (GS-081)

f. Mobile Lounge Operators (WG-5701)

g. Police (GS-083)

h. Applicants for above positions

i. Pilots who fly agency owned or leased aircraft (This does not include pilots who fly privately owned or privately rented aircraft for reimbursable travel when it has been determined that other means of transportation are not available and the method of travel will be advantageous to the government in accordance with Chapter 3 agency Order 1500.13A.)

Final Action Notice 3900.2 appended to Engen Declaration at 1-2.

Program procedures require that testing for the designated substances be done by an independent laboratory. *fn4 The results of the urinalysis tests will not be reported as positive to the F.A.A. unless the presence of the prohibited substance is confirmed by gas chromatography/mass spectrometry. See final Action Notice 3900.2 at 5. The employee may request a onetime only retest of an aliquot part of the same positive specimen by a laboratory to be selected by the employee. The employee is responsible for the expense of the retest and the F.A.A. agrees not to request or demand a copy of the laboratory report on retest.

In the event that a designated employee tests positive the employee will be offered an opportunity to enter a rehabilitation program and will be relieved of aviation safety-related duties for assignment to other non safety non sensitive duties. The medical clearance of the employee will be withdrawn and the employee returned to aviation safety-related duties only upon reinstatement of the employee's medical clearance. Upon refusal to enter into or complete a rehabilitation program the employee may be separated. Id. at 5-6.

In his declaration the Administrator stated that in order to supplement the F.A.A. periodic drug screening program the Department of Transportation late in 1987 will begin an overall drug screening program which will emphasize random testing. Engen Declaration at paragraph 12. At that time F.A.A. employees in safety-related positions will be subjected to random testing. Since the parameters of the Department's random testing program are not yet defined consideration of that program is not appropriate at this time. However the F.A.A. Substance Abuse Control Program now in place provides for random testing in limited circumstances. If the laboratory reports a confirmed positive urinalysis indicating use of prohibited substances the agency must offer the employee who tested positive the opportunity to enter a drug rehabilitation program. The employee will not be returned to safety-related duty until he or she can submit a drug free urinalysis test. The employee also will be subjected to observed random urine drug testing for one year and any recurrence of substance abuse will result in removal from all safety-related positions and will be considered grounds for separation. Obviously the observed random urine drug testing is far more intrusive than periodic unobserved urine testing in conjunction with the annual medical examination. This greater intrusion however is arguably justified since a positive urinalysis for prohibited substances may identify the employee as a substance abuser and establishes reasonable suspicion warranting more intrusive drug testing.

Petitioners filed their complaint for injunctive and declaratory relief on February 23 1987. In their complaint petitioners ask this court to declare that Executive Order 12564 *fn5 violates the Fourth and Fifth Amendments of the United States Constitution and 5 U.S.C. SEC. 7513; that Office of Personnel Management Regulation FPM Letter 792 violates the Fourth and Fifth Amendments of the United States Constitution 5 U.S.C. SEC. 553 5 U.S.C. SEC. 7513 and 42 C.F.R. Part 2.1 et. seq. (1986); that the Federal Aviation Administration control program violates the Fourth Fifth and Ninth Amendments and penumbral rights to privacy of the Bill of Rights of the United States Constitution 5 U.S.C. SEC. 553 5 U.S.C. SEC. 7513 and 42 C.F.R. Part 2.1 et. seq. (1986) Executive Order 12564 Office of personnel Management Regulation FPM Letter 792 and Department of Health and Human Services guidelines entitled "Scientific and Technical Guidelines For Drug Testing Programs;" and that the Department of Transportation's proposed drug testing program violates the Fourth and Fifth Amendments to the United States Constitution.

B. Standards for Injunctive Relief.

The standard of review on a motion for a preliminary injunction is well settled in the Ninth Circuit which recognizes two formulations of the same rule. The two "tests referred to as the traditional" test and "alternative" test are not two separate tests but instead are "extremes of a single continuum." People of Village or Gambell v. Hodel 774 F.2d 1414 1419 (9th Cir. 1986) rev'd on other grounds sub nom. Amoco production Co. v. Village of Gambell __S.Ct. __ No. 85-1406 (Available on Westlaw SCT Library March 25 1987); American Motorcyclist Ass'n v. Watt 714 F.2d 962 965 (9th Cir. 1983); Benda 'v. Grand Lodge of IAM 584 F.2d 308 314-15 (9th Cir. 1978) cert dismissed 441 U.S. 937 (1979). The difference between them is insignificant and a claimant may prevail under either standard. Village of Gambell 774 F.2d at 1419; American Motorcyclist Ass'n 714 F.2d at 965; Benda 584 F.2d at 315. Furthermore the standard for determining a temporary restraining order is very similar to the standard for determining a preliminary injunction. City of Tenakee Springs v. Block 778 F.2d 1402 1407 (9th Cir. 1982). Thus I shall consider petitioners' applications for a temporary restraining order and for a preliminary injunction together.

The "traditional" test requires an evaluation of three factors: (a) has the moving party established a strong likelihood of success on the merits; (b) does the balance of irreparable harm favor the moving party and; (c) does the public interest favor granting the injunction. Village of Gambell 774 F.2d at 1419; American Motorcyclist Ass'n 714 F.2d at 965; Brenda 584 F.2d at 314-15. The latter formulation requires Court to weigh the interests of the movant's against the societal interests which will be adversely affected by granting the relief requested. Warm Springs Dam Task Force v. Gribble 565 F.2d 549 551 (9th Cir. 1977) application for stay denied in 439 U.S. 1392 (1978). See also Amoco Production Co. v. Village of Gambell, S.Ct. In each case a court must balance the competing claims of injury and must consider the effect on each party of granting or withholding the requested relief.")

Under the "alternative" test a moving party meets its burden by "demonstrating either a combination of probable success and the possibility of irreparable injury or that serious questions are raised and the balance of hardships tips sharply in its favor." American Motorcyclist Ass'n 714 F.2d at 965 (citing Benda 584 F.2d at 314-15). Relative hardship to the parties is the crucial element under the "alternative" test. Thus if the balance of hardships tips decidedly in favor of petitioners less likelihood of success on the merits is required although at a minimum petitioners must demonstrate some chance of success on the merits. Wilson v. Watt 703 F.2d 395 399 (9th Cir. 1983); Shorts Form. Inc. v. United Press International. Inc. 686 F.2d 750 753 (9th Cir. 1982). Further in cases where the public interest is a factor that interest should be strongly considered. See Lopez v. Heckler 713 F.2d 1432; 1435 stay granted in 463 U.S. 1328 (1983)

In their applications for injunctive relief petitioners seek to enjoin the federal defendants from conducting the collection of urine specimen from F.A.A. employees for the purpose of detecting the drug and/or alcohol content therein except upon an articulable reasonable suspicion.

Petitioners' Motion for a Preliminary Injunction at 2-3. Petitioners claim that the collection and testing of a urine sample will cause irreparable harm because the collection and testing constitutes a search and seizure under the Fourth Amendment is an invasion of privacy rights under other constitutional provisions and is a violation of the self-incrimination and due process clauses of the Fifth Amendment.

The Department of Justice and the United States Counsel promptly appeared on behalf of the federal defendants to oppose petitioners' application for a preliminary injunction and to request summary judgment on all claims made by petitioners. In their opposition to the petitioners' application for a preliminary injunction the federal defendants suggest that the "only issue" is whether urine submitted by designated employees in the course of periodic physical examinations may be tested for illegal drug use. Respondents say this is nothing more than a "minor change" in working conditions.

In the development of their position respondents argue that the F.A.A. program of periodic drug screening ordered into effect by the Administrator on February 15 1987 does not involve a search under the Fourth Amendment and while random urine drug testing programs might be instituted in the future since the details of such a program have not yet been determined consideration of these related issues is not appropriate at this time.

In order to determine whether petitioners have met the requirements for issuance of injunctive relief it is necessary at this point to address respondents' argument that the F.A.A.'s Substance Abuse Control Program does not involve a search or seizure under the Fourth Amendment or as respondents put it given that plaintiffs do not and cannot challenge the long-standing requirement that urine be provided in the course of periodic physical examinations the primary Fourth Amendment issue is whether subjecting the urine to an additional test for illegal drug or alcohol abuse implicates the Fourth Amendment. United States v. Jacobsen 466 U.S. 109-113 (1984) plainly says no.

Respondents' Opposition at 3-4.

C. Fourth Amendment Issues.

1. Whether Urinalysis Constitutes a Search.

Whether the taking of urine specimens from flight service specialists during a periodic medical examination to test for certain disabling diseases such as diabetes mellitus is a search under the Fourth Amendment has not been directly raised by the pleadings. *fn6 Respondents assuming that requiring a urine specimen is not a search suggest that expanding urine testing for substance abuse involves nothing more than a "minor change" in working conditions. I reject this contention.

The taking of urine specimens during the course of a periodic medical examinations to permit testing for diabetes mellitus involves different procedures than are required when taking urine specimens for the purpose of drug testing under the F.A.A.'s Substance Abuse Control Program. The guidelines and procedures for urine collection under the drug control program were disseminated by the Federal Air Surgeon to all F.A.A. regional flight surgeons on January 21 1987. Although collection of the urine specimen during the periodic examination need not be observed other procedures require completion of a chain of custody form to validate the urine specimen sent to the laboratory for drug testing. Doors to the collection room where the urine is taken must be observed by the collector until the employee exits. In order to avoid alteration or substitution of the specimen the toilet bowl or tank water will be colored. The employee must remove his or her outer garments before entering the collection room although normal indoor apparel may be left on. All personal belongings including purses or wallets must be left outside the collection room. After the employee exits the collection room and a specimen is obtained the collector must immediately initiate completion of the chain of custody form and prepare the specimen for shipment to the laboratory.

Respondents relying on the decision of the United States Supreme Court in United States v. Jacobsen 466 U.S. 109 (1983) say testing urine for illegal substances under the F.A.A.'s Substance Abuse Control Program is not a search. In Jacobsen employees of a private freight carrier opened a damaged package and found a white powdery substance which had been concealed within a tube inside the package. A federal drug enforcement agent was summoned. The agent removed the tube from the box examined the package taken from inside the tube and determined the substance to be cocaine. The precise issue in Jacobsen was the extent to which the officer's search exceeded the scope of the private search. Court concluded that the officer gained nothing of evidentiary value beyond that obtained as a result of the private search.

The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. Similarly the removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a 'search' within the meaning of the Fourth Amendment.

Jacobsen 466 U.S. at 119-20 (citations omitted). Respondents' reliance on Jacobsen is misplaced and the case may be readily distinguished on its facts. The urinalysis testing under the F.A.A.'s Substance Abuse Control Program is to identify substance abusers and goes well beyond testing for diabetes mellitus.

The two-part test to determine whether an intrusion constitutes a search under the Fourth Amendment was first articulated in Justice Harlan's concurrence in Katz v. United States 389 U.S. 347 (1967).

My understanding of the rule that has emerged from prior decisions is that there is a two-fold requirement first that a person have exhibited an actual (subjective) expectation of privacy and second that the expectation be one that society is prepared to recognize as 'reasonable'.

Id. at 361.

The decision of the Seventh Circuit in Div. 241 Amalgamated Transit Union v. Suscy 538 F.2d 1264 (7th Cir. 1976) cert. denied 429 U.S. 1029 (1976) is one of the earliest cases dealing with the constitutional issues related to drug testing. In Suscy rules of the Chicago Transit authority required blood or urinalysis testing for drugs or alcohol of operating employees who were suspected of being under the influence or who had been involved in a serious accident. The union on behalf of its members challenged the rules as unconstitutional. The Seventh Circuit held that the Fourth Amendment protects an individual's reasonable expectation of privacy from unreasonable intrusions by government agencies.

Whether an individual has a reasonable expectation of privacy and whether the intrusion is reasonable are determined by balancing the claims of the public against the interests of the individual. It is clear that a government agency can place reasonable conditions on public employment.

Id. at 1267 (citations omitted).

This statement in context may seem somewhat confusing since the test for determining whether a particular intrusion is a search under the Fourth Amendment requires application of the principles articulated by Justice Harlan in Katz. If a search the issue then becomes whether under the Fourth Amendment the search is reasonable and this requires a balancing of public need against the individual's legitimate privacy right. A careful reading of Court's decision in Suscy suggests that Court found that transit drivers could have no reasonable expectation of privacy in connection with submitting to drug or urine tests. However if the drug testing were assumed to constitute a search under the Fourth Amendment the Suscy court must have concluded that the search was reasonable.

Certainly the public interest in the safety of mass transit riders outweighs any individual interest in refusing to disclose physical evidence of intoxication or drug abuse. As we view them the CTA rules and General Bulletin facially comply with the Fourth Amendment standards; so that employees who fail to comply with these rules and the General Bulletin may be discharged.

Suscy supra at 1267.

Court went on to hold that urinalysis testing of operating employees involved "in any serious accident" or "suspected of being under the influence" of intoxicating liquor or narcotics was not required unless two supervisory officers concurred. Id. Under these circumstances and because "a valid public interest justifies the intrusion contemplated the Seventh Circuit found the existence of probable cause. Id.

While there may be some lingering doubt it can be said that the great majority of courts examining the question have found the taking of a urine sample for drug testing to be a search under the Fourth Amendment. See McDonell v. Hunter 809 F.2d 1302 1307 (8th Cir. 1987); Spence v. Farrier 807 F.2d 753 755 (8th Cir. 1986); Capua v. City of Plainfield 643 F.Supp. 1507 1513 (D. N.J. 1986); National Treasury Employees Union v. Von Raab 649 F.Supp. 380 386 (E.D. la. 1986) stay denied pending appeal 808 F.2d 1057 (5th Cir. 1987); Jones v. McKenzie 628 F.Supp. 1500 1508-09 (D. D.C. 1986); Allen v. City of Marietta 601 F.Supp. 482 488-89 (N.D. Ga 1985); Storms v. Coughlin 600 F.Supp. 1214 1217 (S.D. N.Y. 1984).

I conclude that flight service specialists have a reasonable expectation of privacy in the bodily function of urinating and that society is prepared to recognize that right. Furthermore the flight service specialists have a reasonable expectation of privacy with respect to the chemical content of urine sampled. Accordingly I conclude that urinalysis testing of flight service specialists for illegal substances constitutes a search under the Fourth Amendment.

2. Whether the Search is Reasonable: Applicable Standards.

The most critical issue raised by petitioners' application for injunctive relief is their claim that the F.A.A.'s substance abuse program amounts to an unreasonable search under the Fourth Amendment. In support of their contention petitioners rely on a number of recent decisions holding that the taking of a urine sample for drug testing without reasonable suspicion or probable cause constitutes a search prohibited by the Fourth Amendment. These decisions include McDonell v. Hunter 612 F.Supp. 1122 1130 (S.D. Iowa 1985) aff'd as modified in 809 F.2d 1302 (8th Cir. 1987); National Treasury Employees v. Von Raab supra; and Capua v. City of Plainfield supra.

In McDonell three correction institution employees of the State of Iowa brought a class action challenging the constitutionality of a departmental policy which subjected them to searches of their vehicles as well as body searches including urinalysis and blood tests. The trial court issued a preliminary injunction which was affirmed in McDonell v. Hunter 746 F.2d 785 (8th Cir. 1984) The trial court concluded that the Fourth Amendment allowed a urine blood or breath specimen for chemical analysis only upon reasonable suspicion based on specific objective facts and reasonable inference that the employee was then under the influence of alcohol or controlled substances.

The Eighth Circuit in the appeal on the merits found that urinalysis properly administered is not nearly as intrusive as a strip search or a blood test. McDonell 809 F.2d at 1308. Court determined that prison officials have a legitimate interest in assuring that the activities of employees who come into daily contact with inmates are not inhibited by drugs or alcohol so that the employees are fully capable of performing their duties. Id. In this connection Court stated:

In our opinion the use of drugs by employees who come into contact with the inmates in medium or maximum security facilities on a regular day-to-day basis poses a real threat to the security of the prison. The only way this can be controlled in a satisfactory manner is to permit limited uniform and random testing. The least intrusive method of doing so is through use of urinalysis. In our opinion it is also logical to assume that employees who use the drugs and who come into regular contact with the prisoners are more likely to supply drugs to the inmates although the trial court did not agree with this observation.

Id.

The Eighth Circuit modified the order of the district court to permit urinalysis drug testing performed uniformly or by systematic random selection of employees having regular contact with prisoners on a day-to-day basis in medium- or maximum-security prisons. Id. at 1309. Apart from a uniform or systematic random selection of designated employees drug testing within the confines of an institution was permitted only upon reasonable suspicion.

In Von Raab the United States Customs Service had implemented a drug testing program to screen designated customs employees for use of illegal drugs. The trial court found that the Customs Service drug testing program violated the Fourth Amendment and concluded that such a search was even more intrusive than a residence search. Von Raab 649 F.Supp. at 386-87. Court also concluded that the program violated the Fifth Amendment since in addition to the urine sample the program required submission of a pre-test form which requested a listing of any medications taken and the circumstances in which the subject might have been in contact with illegal substances. Id. at 388. Finally the district court found that the testing program violated the "penumbral rights of privacy" under the federal constitution and due process under the Fifth Amendment. Id. at 389. The trial court issued an injunction barring the implementation of the customs service drug testing program and the service promptly sought a stay of the order pending appeal on the merits. The Fifth Circuit declined to grant the stay. National Treasury Employees Union v. Von Raab 808 F.2d 1057 (5th Cir. 1987).

The rule of the Fifth Circuit for granting a stay pending appeal is that the moving party need only present a substantial case on the merits when a serious legal question is presented and show that the balance of equities weighs heavily in favor of the stay. Court agreed that the Customs Service had presented a substantial case on the merits Id. at 1059. However the customs service testing program had been in effect for three months prior to the district court's injunction but had been suspended for two months following the injunction and the appeal was to be heard in three weeks Court found that this on-again off-again approach to the Customs Service's drug testing program was not in the public interest. *fn7 Id. at 1060.

In Capua v. City of Plainfield municipal fire fighters and a police department employee challenged an order requiring them to submit to a surprise urinalysis test for drugs. The district court concluded that the mere possibility of discovering that some fire fighters were using drugs and might be impaired in their job performance at some future time could not without more render the seizure of urine specimens constitutionally reasonable. Capua 643 F.Supp. at 1520. Court Sarokin found outrageous conduct on the part of the municipal authorities. At 7:00 a.m. on May 26 1986 the municipal fire chief and the Director of Public Affairs and Safety entered the fire station secured and locked all station doors and awakened all fire fighters Id. at 1511. Each was required to submit a urine sample under the surveillance and supervision of agents employed by the municipality. Id. This procedure was repeated on two other occasions until approximately all fire fighters had been tested. Id.

I conclude that the procedures employed by the Municipality of Plainfield were far more intrusive than the F.A.A. procedures now under consideration Court Sarokin's conclusion that the Fourth Amendment permits urinalysis testing of employees for drugs only upon reasonable suspicion rested in part upon the district court decision in McDonell and the decision of the Seventh Circuit in Suscy 538 F.2d 1264 (7th Cir. 1976) As I have noted the order of the district court in McDonell was modified on appeal and urinalysis may now be required on a uniform or systematic selection for drug testing of prison guards in medium- or maximum-security prisons. Moreover in McDonell the Eighth Circuit concluded that urinalysis was the least intrusive method for determining whether correction officers were using or abusing drugs which affected their ability to perform their work within the prison safely. McDonell 809 F.2d at 1308.

Other cases can be found which hold that subjecting employees to urinalysis for drug testing without probable cause constitutes a Fourth Amendment violation. For example in Jones v. McKenzie 628 F.Supp. 1500 1507-09 (D.C. Cir. 1986) it was held that the termination of a school bus attendant on the basis of a single positive urinalysis drug test was arbitrary and capricious and that the employee's Fourth Amendment rights were violated by requiring urinalysis without probable cause The record disclosed that the school bus attendant was discharged solely on a positive EMIT test without other laboratory verification. See id. at 1503. This limited test was found to be arbitrary and capricious and a violation of the due process clause since the school bus attendant had a property interest in her employment Id. at 1507.

In addition to McDonell the Eighth Circuit considered the validity of a urinalysis program testing prisoners in Spence v. Farrier 807 F.2d 753 (8th Cir. 1986). In Spence prisoners of the Iowa penitentiary claimed that the drug testing and procedures of the penitentiary invaded their constitutional rights under the Fourth and Fourteenth Amendments. Id. at 754. As in McDonell the Eighth Circuit in Spence concluded that urinalysis constitutes a search and seizure under the Fourth Amendment. Id. at 755 Relying on the holding of the United States Supreme Court in Bell v. Wolfish 441 U.S. 520 547 the Spence court concluded:

A reasonableness analysis involves 'balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates' . . 807 F.2d at 755 (quoting Bell supra at 560). Applying this balancing test the Eighth Circuit found that prison security needs outweighed the prisoners' expectation of privacy and therefore the random urine collection and analysis program was reasonable under the Fourth Amendment See also storms v. Coughlin 600 F.Supp. 1214 (S.D.N.Y. 1984) (intrusive random urine testing by state officials met Fourth Amendment requirement of reasonableness); Bell 441 U.S. at 547 ("Prison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.")

Cases may also be found which uphold urinalysis drug testing. In Shoemaker v. Handel 795 F.2d 1136 (3rd Cir.) cert. denied 107 S.Ct. 577 (1986) the Third Circuit held that jockeys trainees and grooms may be required to submit to breathalyzer and urine testing in order to detect alcohol or drug consumption. In Shoemaker jockeys applied for declaratory and injunction relief against officials of the New Jersey Racing Commission. Id. at 1137. They claimed that the commission's regulations requiring jockeys and others to submit to breathalyzer and urine testing ran afoul of the Fourth Fifth Ninth and Fourteenth Amendments. Under the regulations jockeys were selected for urine drug testing on a random basis. Id. at 1140. They also were required to complete certification forms concerning use of prescription or nonprescription medications Id. The urine testing by a laboratory would disclose not only use of drugs at the race track but also off premises drug use for as long as a week prior to the day of test Id. The Third Circuit concluded that the urine drug testing amounted to an administrative search under the Pervasively regulated business exception to the Fourth Amendment. Id. at 1142. Noting that the state had a strong interest in assuring the public of the integrity of persons engaged in the horse racing industry Court found that frequent alcohol and drug testing is an effective means of demonstrating that persons engaged in the horse racing industry are not subject 'to outside influences. In this connection the court said:

It is the public's perception not the known suspicion that triggers the state's strong interest in conducting warrantless testing. Id.

Another recent decision upholding the taking of urine specimens from employees for purposes of drug testing is Rushton v. Nebraska Public Power District __F. Supp. __ No. 86-L-308 (D. Neb. 1987) In Rushton the Nebraska Public Power District which operated the Cooper Nuclear Station adopted a fitness for duty drug/alcohol testing program in response to a policy statement published by the Nuclear Regulatory Commission The power district's program required the taking of a urine sample for drug testing in conjunction with employees' annual physical examination A positive test result required the employee to be placed on administrative leave without pay and to undergo a program of drug rehabilitation or be separated The employee would not be restored to duty until post rehabilitation drug tests were satisfactorily completed Certain employees challenged the power district's program on several grounds including the First Amendment (religious freedom) In this connection the employees suggested that less restrictive alternatives were available as an accommodation to religious freedom. However the district court found that "a chemical abuser would do just about anything to avoid detection . . . ." Rushton __ F Supp. ___ at. Court further found that "nothing less than Compulsory participation applied uniformly to all employees having unescorted access to [the nuclear plant would] reasonably assure fitness for duty." Id. at __.The employees also claimed that the drug testing violated their Fourth Amendment rights. The district court followed the balancing test articulated in New Jersey v. TLO 469 U.S. 325 337 (1985). The reasonableness standard discussed in TLO requires a balancing of the individual's legitimate expectations of privacy and personal security against the government's need for the search The district court concluded that since the nuclear power industry is Pervasively regulated the power district's drug testing program was a valid administrative search under the Fourth Amendment The district court relied upon Shoemaker and McDonell which Court construed as holding that the intrusion imposed on a legitimate expectation of privacy by compulsory annual and random drug screening was reasonable within the meaning of the Fourth Amendment

The district court in Rushton also addressed the employees' due process claims. As for the employees' substantive due process claim Court found that the EMIT test used in conjunction with such tests as gas chromatography/mass spectrometry was accurate and reliable Rushton __ F.Supp. at __ . Moreover Court noted 'that the Eighth Circuit in McDonell and Spence reviewed the use of the EMIT procedure with confirmatory testing and found that the testing met the requirements of due process. Finally the Rushton court addressed plaintiffs' claims of self-incrimination under the Fifth Amendment Noting that a consent form required the itemization of all medications taken within the last thirty days Court concluded that the use of medication either over the counter or by prescription did not constitute a criminal offense. Hence evidence of the use of medication does not compel an employee to be a witness against himself. See also Schmerber v. California 384 US 757 (1966) (extracting blood for alcohol testing in criminal context did not violate right against self-incrimination)

Drug testing of employees by urinalysis was also sustained in Allen v. City of Marietta 601 F.Supp. 482 (N.D. Ga. 1985). In that case municipal employees working in the vicinity of high voltage wires were thought to be using drugs The employees were given the option of resigning or submitting a urine sample for drug testing. Several tested positive for marijuana and were fired. Id. at 484. They brought an action claiming deprivation of constitutional rights. The district court found that the taking of the urine sample amounted to a search and seizure within the meaning of the Fourth Amendment Id. at 488. However the search was held to be reasonable Id. at 491. Court held that the municipality was justified in undertaking a warrantless search for the purpose of determining whether the employees were using or abusing drugs which would affect their ability to perform their work safely. Id.

The rationale of the Third Circuit upholding drug urinalysis for jockeys in order to protect the integrity of horse racing is even more compelling when the public need for air safety is considered. If horse racing is recognized as a closely or pervasively regulated activity then aviation activities and the aviation industry are as much or possibly more closely regulated. The F.A.A. regulates in detail the design and construction of aircraft and the instruments and equipment which must be carried aboard the aircraft. The agency regulates the use of aircraft and requires all who operate aircraft to be licensed It also requires licensing for those who are engaged in the repair of aircraft and aviation equipment

Indeed the creation of a federal agency charged with responsibility for ensuring safe air travel reflects the public interest in air safety. I find that the public perception of air safety not only is critical to the airline industry but to all who fly. I find that close and pervasive regulation of aviation related activities is well established and that air safety relates to serious risks or hazards which require close and constant attention. I do 'not believe petitioners challenge the public necessity for air safety. Instead the issue in the present case is the part which flight service specialists play in the agency's responsibility for air safety.

The United States Supreme Court recently addressed the reasonableness issue under the Fourth Amendment in New Jersey v. TLC 105 SCt 733 (1985) A warrantless search had been made by school officials of a high school student's purse Justice White writing for Court recognized that students have a legitimate privacy interest under the Fourth Amendment. Balanced against this interest was the substantial interest of school officials in maintaining discipline According to Justice White the determination of whether the search was reasonable required striking a balance between the student's legitimate expectation of privacy and the school's equally legitimate need to maintain an environment in which learning can take place. As a general rule probable cause is required to justify a search. But the Fourth Amendment requires only that the search be reasonable. When a careful balancing of governmental and private interests suggests that the public interest is best served by a Fourth Amendment standard of reasonableness that stops short of probable cause the Supreme Court has not hesitated to adopt that standard. In TLO the purse search was found to be reasonable.

Upon review of the authorities which have considered Fourth Amendment issues arising from drug testing employees for substance abuse I conclude that the rule to be applied is one of reasonableness Society recognizes that the intrusion into a bodily function to obtain a urine specimen for drug testing involves a legitimate right of privacy. This legitimate right of privacy is protected by the Fourth Amendment from Unreasonable searches. The test of reasonableness requires a balancing of the person's legitimate privacy right against the public need for the search.

To determine reasonableness the court must balance the intrusiveness of the search into the individual's legitimate expectation of privacy against the legitimate government interests promoted by the search. Factors to be considered are the scope of the particular intrusion the manner in which it is conducted the justification for initiating it and the place in which it is conducted

Bell 441 U.S. at 559.

II. ANALYSIS

A. Intrusiveness of Drug Testing Procedures.

I now apply the recognized rules to the present case. Petitioners first contend that the F.A.A.'s Substance Abuse Control Program must be administered consistently with procedures recently promulgated in Department of Health and Human Services (HHS) guidelines. *fn8 Petitioners suggest that the degree of intrusiveness of the drug screening program should be measured against the HHS procedures. According to petitioners the HHS guidelines were promulgated pursuant to executive order and are binding upon all agencies as of their February 13 1987 effective date. Respondents maintain that the procedures for collection set out in the F.A.A.'s final Action Notice 3900.2 are to be followed and not the HHS guidelines. According to respondents the HHS guidelines did not become effective until February 19 1987 and expressly exempted agencies already operating drug testing programs from compliance with the HHS guidelines for 180 days. Because the current F.A.A. program was implemented prior to the HHS effective date respondents assert that the F.A.A. need not comply with the HHS guidelines until mid-summer 1987.

Review of the HHS and F.A.A. programs and procedures is appropriate Executive Order 12564 September 15 1986 authorized HHS to promulgate scientific and technical guidelines for drug testing programs and ordered agencies to conduct their programs in accordance with the guidelines Section 6(d) Exec. Order 12564 51 Fed. Reg. 889 (1986) HHS has promulgated these guidelines As to specimen collection the procedures at issue here the HHS guidelines require

1. At the collection site toilet bluing agents shall be placed in the toilet tanks wherever possible so the reservoir of water in the toilet bowl always remains blue There should not be any other source of water (e.g. shower sink etc.) in the enclosure where urination occurs

3. The collection site person shall ask the individual to remove any unnecessary outer garments (e.g. coat jacket) that might conceal items or substances that could be used to tamper with or adulterate his/her urine specimen Also all personal belongings (e.g. purse briefcase) must remain with the outer garments; the individual may however retain his/her wallet. The collection site person shall note any unusual behavior or appearance

4. The individual shall be instructed to wash and dry his/her hands prior to urination.

5. After washing hands the individual shall remain in the presence of the collection site person and not have access to water fountains faucets soap dispensers or cleaning agents.

7. If the collection site uses a public restroom the following procedures should be followed: Females: A female collection site person should accompany the individual into the public restroom Toilet bluing should be placed into the toilet bowl The individual should be asked to void into the disposable specimen container and asked not to flush the toilet A disposable collection container with a wider mouth may be used to collect the urine The sample is then transferred to the collection container by the individual The collection site person remains in the restroom but outside the stall until the urine specimen is collected and handed to the collection site person by the individual The collection site person should flush the toilet and continue on with the chain of custody procedures.

Males: A male collection site person should accompany the individual into the public restroom. Toilet bluing should be placed into the urinal or the toilet bowl (whichever is being used). The individual should be asked to void into the disposable specimen container and asked not to flush the toilet The collection site person remains in the restroom but outside the stall until the urine specimen is collected and handed to the collection site person by the individual. The collection site person should flush the toilet and continue on with the chain of custody procedures.

Alcohol Drug Abuse and Mental Health Administration Department of Health and Human Services Scientific and Technical Guidelines for Drug Testing Programs at 4-5.

In August 1985 the F.A.A. announced its plan to periodically test certain employees for drug abuse. In response to the Administrator's directive the Federal Air Surgeon prepared proposed standards and procedures for testing. The proposed Substance Abuse Control Program was incorporated by the Administrator's memorandum of September 15 1986 into the existing periodic urinalysis required as part of the annual physical examination. On October 23 1986 the Administrator approved F.A.A. Order 3210.1 establishing policies and procedures for the Substance Abuse Control Program and as of that date the F.A.A's Substance Abuse Control Program was essentially in place. On February 15 1987 the Administrator approved final Action Notice 3900.2 ordering substance testing to begin. The F.A.A. program provides for the following specimen collection procedures:

(1) The collection room should have a single door which may be closed and watched by the collector until the donor exits Multiple doors make it necessary to observe each during the collection period.

(2) The collection room should be clear of any possible sources of adulteration or substitution For example any toilet bowl or tank water should be colored hot water sources should be turned off if possible no other containers should be available in the room and no sources of adulteration should be in the room (e.g. soap cleaners etc.).

(3) Prior to providing a urine specimen the donor shall be asked to remove his/her outer garments (jacket vest coat sweater etc.) but not normal indoor apparel. All personal belongings including purse or wallet must remain outside the collection room with the outer garments. NO OUTER GARMENTS OR PERSONAL BELONGINGS MAY BE TAKEN INTO THE COLLECTION ROOM WHILE THE INDIVIDUAL VOIDS.

(4) Only the examinee/donor alone shall be permitted in the collection room during collection.

Exhibit F to Jon L. Jordan Declaration at 70-71.Jordan the Acting Federal Air Surgeon states in his declaration that presently the F.A.A is not using the HHS guidelines regarding specimen collection as part of the specimen collection adjunct to the routine annual physical examinations Respondents contend that the HHS guidelines are not controlling at this date

The HHS guidelines are somewhat more intrusive than the F.A.A. procedures in that HHS requires closer observation of the specimen collection and also requires the monitor personally to observe the toilet bowl after collection and prior to flushing. However the F.A.A. developed its own periodic drug screening program after a lengthy proposal and notice period. Under these circumstances because the F.A.A. must initially determine what standards and procedures are to be applied to its own program I defer to agency interpretation of which standards are to control the specimen collection under the F.A.A.'s program But even were it assumed that the HHS guidelines apply and in any event the HHS guidelines will apply not more than 180 days from either February 13 or February 19 1987 the procedures are not as intrusive as those which have been approved elsewhere See e.g. McDonell v Hunter 809 F.2d at 1308.

B. public Necessity for Drug Testing.

1. F.A.A. Classification.

Petitioners in their reply brief suggest that the F.A.A. has in the past treated flight service specialists differently from "tower" or "center" employees which indicates they maintain that it is not necessary to screen flight service specialists for drug abuse. Petitioners quote extensively from past Congressional hearings at which Charles Weithoner an agency official presented the F.A.A.'s position on extending early retirement benefits and second career training which were already available to "tower" or "center" air traffic control specialists to flight service specialists. Mr. Weithoner stated:

The job of a flight service station specialist although an important component of our air transportation system is substantially different than that of the controller. FSS specialists do not control air traffic. Their function is to provide advisory services to pilots concerning weather conditions terrain features and the like. They are not called upon to make recurring time critical safety decisions as controllers are and the needs of aviation safety underlying much of the enactment of Public Law 92-297 simply do not encompass the type of work they perform

Air Traffic Controllers and Flight Service Station Specialists; Hearings on H.R. 1262 H.R. 1781 H.R. 3479 H.R. 3503 Before the Subcomm. on Civil Service of the House Comm. on Post Office and Civil Service 96th Cong. 1st Sess. 49 (1979) (statement of Charles E. Weithoner Associate Administrator FAA).

Mr. Weithoner at another hearing stated:

The reason we urged the comprehensive career program for our controllers was that aviation safety required that they maintain a high level of proficiency throughout their careers. Performance studies had revealed to us however that center and tower controllers generally tend to lose proficiency as a result of the normal aging process . . . . On the other hand even if we were to assume that FSS Specialists lose some proficiency due to the normal aging process this would not result in a derogation of aviation safety because of the substantially different type of work they perform compared to controllers. We simply have no evidence which suggests to us that it is either necessary or advisable in the interest of flight safety to strive for a younger work force in the flight service stations This is in direct contrast to the situation with our controller work force I should also note that there are different medical requirements for job retention for controllers than for FSS Specialists Lower medical requirements for job retention are in effect for FSS Specialists than for controllers in recognition of the difference in the demands of the jobs. .

. . Last since the Flight Service Station Specialists' duties are primarily of supportive/advisory nature as opposed to the active separation and control of air traffic which requires constant time critical decisions inclusion of FSS Specialists under the controller early retirement program is simply not necessary in the interest of aviation safety.

Civil Service Retirement System Amendments: Hearings on H.R. 1131 H.R. 989 H.R. 1518 Before SubComm. on Compensation and Employed Benefits of House Comm. on Post Office and Civil Service 99th Cong. 1st Sess. 120-121 (1985) (statement of Charles E. Weithoner Associate Administrator F.A.A.).

Petitioners also argue that they should not be subjected to drug screening because they are not in the class of federal employees covered by Executive Order 12564 which mandates that agencies implement drug testing programs for employees in "sensitive positions."

Executive Order 12564 Section 7(d) provides in part:

For purposes of this Order the term employee in a sensitive position" refers to:

(1) An employee in a position that an agency head designates Special Sensitive Critical-Sensitive or Non-critical-Sensitive under Chapter 731 of the Federal Personnel Manual or an employee in a position that an agency head designates as sensitive in accordance with Executive Order No. 10450 as amended; . . .

(5) Other positions that the agency head determines involve law enforcement national security the protection of life and property public health or safety or other functions requiring a high degree of trust and confidence.

Exec Order No. 12564 51 Fed. Reg. 32889 (1986).

According to petitioners flight service specialist is not a "sensitive position" because it has been classified as "non-sensitive" pursuant to Office of Personnel Management guidelines found in Federal Personnel Manual Chapter 731 and Appendix A to Chapter 731 (January 6 1984). Further the F.A.A. could not determine solely for purposes of EO 12564 that flight service specialists are in sensitive positions" without subjecting all "non-sensitive" designated federal employees to drug testing pursuant to EO 12564. In summary petitioners argue that the F.A.A. cannot classify flight service specialists as non-sensitive and unimportant for personnel and retirement purposes and then classify these same employees as sensitive" or "safety-related" pursuant to EO 12564 for purposes of the F.A.A. drug screening program.

Respondents argue that the EO 12564 mandates drug testing of employees in sensitive positions which includes employees whose jobs affect "public health and safety" under EO 12564 Section 7(d)(5). Respondents contend that the F.A.A. Administrator has authority to determine and has determined that flight service specialists affect public health and safety. Thus respondents argue it is necessary to screen petitioners' urine for illegal drug use and petitioners are employees subject to drug testing pursuant to EO 12564 Section 7(d)(5).

I disagree in part with both contentions. It appears that the agency may have appraised the duties and responsibilities of flight service specialists differently depending upon the nature of the agency interests. When 'evaluating the duties and responsibilities for purposes of compensation or early retirement benefits the agency minimizes the duties and responsibilities of flight service specialists. When evaluating flight service specialists for purposes of periodic drug screening the agency emphasizes safety-related duties and responsibilities.

Exhibits indicate that the F.A.A. has classified flight service specialist as a non-sensitive" position I am aware that these exhibits all date back to 1979-1980 prior to the effective date of FPM Chapter 731. *fn9 However I have no reason to assume that the position classifications provided by plaintiffs were not determined consistent with the factors set out in FPM Chapter 731. Chapter 731 expressly states that "these requirements continue past practices and internal policy with only minor changes in approach and procedures to clarify previous instructions often located in different FPM chapters supplements and other official decision documents." FPM at 3 Thus petitioners here occupy positions that the Administrator has classified "non-sensitive"

Chapter 731 sets forth a three-step process to determine position sensitivity. Initially the Administrator determines the importance of the program in which the position is placed. This involves assessing the program's impact on the efficiency of the agency by rating it on a seven-part scale that includes maximal major significant substantial moderate limited and minimal. Then the program's scope of operations is rated on position description request for personnel action and notification of personnel action.

The Administrator's sensitivity determination for flight services specialists sheds light on the F.A.A.'s own understanding of the role flight service specialists play within the agency. According to the chart set out in appendix A to Chapter 731 positions are designated non-sensitive in only two situations. First a moderate program level combined with risk points of 5 through 10 and second a lowest program level combined with risk points of 30 through 35. FPM Chapter 731 Appendix A at 6. The record does not indicate which situation is present here. However it is clear that the F.A.A. either (1) considered the program as moderately important but did not regard the risk factors including degree of public trust importance to the program or supervision received as being significant or (2) considered the program as of lowest importance while regarding the risk factors as being fairly significant Either conclusion indicates that the agency itself did not regard flight service specialists as of significant importance to the agency mission of providing safety in the nationwide air traffic control system. This of course implies that it is not necessary to the mission of the F.A.A. to test flight service specialists for use of drugs.

Apart from this petitioners contend that Executive Order 12564 does not authorize the testing of flight service specialist since these positions have been classified by the agency as non-sensitive In response the federal defendants suggest that the F.A.A. Substance Abuse Control Program is nothing more than a part of the present routine annual physical examination. Alternatively respondents contend that the definition of employee in a sensitive position in the executive order necessarily includes those in the position of flight service specialist. Section 7(d) of Executive Order 12564 provides in relevant part:

For purposes of this Order the employee in a sensitive position" refers to:

5) Other positions that the agency head determines involve law enforcement national security the protection of life and property public health and safety or other functions requiring a high degree of trust and confidence

Whether flight service specialists occupy positions involving the protection of life and property public health or safety or other functions requiring a high degree of trust and confidence must necessarily be resolved by a balancing of interests under the Fourth Amendment If I find that the F.A.A.'s Substance Abuse Control Program requiring a urine specimen for drug testing is reasonable under the Fourth Amendment because the public interest outweighs the individual's privacy interest then flight service specialists must meet the definition of "employee in a sensitive position within the meaning of executive order 12564 Section 7(d)(5).

A basic tenet of administrative law is that courts generally defer to informal agency decisions. see generally Administrative Procedure Act 5 U.S.C. SEC.. 706; Marathon Oil Co. v. United States 807 F.2d 759 765 (9th Cir. 1986) __ U.S.L.W. __ (U.S. December 19 1986). Informal agency decisions such as the agency classification here will not be reversed unless arbitrary capricious an abuse of discretion or contrary to law. See 5 U.S.C. SEC. 706(2)(A). Thus the agency's determination regarding the sensitivity level or importance of any given federal position may be followed by courts for some purposes

However as I have noted the Administrator's determination that flight service specialists are in positions affecting public health and safety goes to the heart of the Fourth Amendment analysis. In making that determination the Administrator must have considered the relationship between flight service specialists' duties and responsibilities and the F.A.A.'s responsibility of providing for air safety. This relationship and the Fourth Amendment public necessity analysis are closely intertwined.

An equally well-settled principle of administrative law is that courts need not defer to agency decisions which are contrary to a constitutional right. 5 U.S.C. SEC. 706(2)(B). Court in Porter v. Califano 592 F.2d 770 780 (5th Cir. 1979) noted:

the intent of Congress in 5 U.S.C SEC. 706(2)(B) was that courts should make an independent assessment of a citizen's claim of constitutional right when reviewing agency decision-making Whereas SEC. 706(2) authorizes reviewing courts to overturn agency findings and action involving unconstitutional claims only when the agency has abused its discretion SEC. 706(2)(A) acted arbitrarily and capriciously 706(2)(A) or made findings unsupported by substantial evidence 706(2)(E) section 706(2)(B) explicitly authorizes Court to set aside any agency action contrary to Constitutional right . . .

Id. at 780. (Emphasis in original).

The Porter court also observed that [o]ur literal reading of SEC. 706(2) (B) is consistent with general principles of constitutional adjudication. Id. at 781. Court cited Pickering v. Board of Education 391 U.S. 563 (1968) for the proposition that where constitutional rights are in issue an independent examination of the record will be made in order that the controlling legal principles may be applied to the actual facts of the case.

Pickering 391 U.S. at 578 n.2. See also Porter v. Heckler 780 F.2d 920 923 (11th Cir. 1986) (noting the impropriety inherent in relying heavily on investigative findings of an interested agency in a case involving constitutional rights) Therefore to determine whether the F.A.A. program complies with constitutional requirements I must independently review the public necessity for collecting and screening for drug use the urine of these particular F.A.A. employees.

Petitioners suggest that the FPM Chapter 731 non-sensitive" classification should be binding otherwise all "non-sensitive" federal employees could be subject to drug testing pursuant to EO 12564. I disagree. Constitutional analysis in the area of employee drug testing does not permit bright line distinctions. Instead such constitutional issues must be determined on a case-by-case basis Thus a determination that a Chapter 731 non-sensitive" position may constitutionally be subject to drug screening does not mean that all those in non-sensitive" federal positions may be tested

2. Scope of the F.A.A. Program.

Petitioners argue that the scope of the F.A.A.'s Substance Abuse Control Program far exceeds the actual scope of the drug problem. Petitioners contend that the F.A.A. program requires testing of approximately 20 000 employees. When the Department of Transportation implements its program including random drug testing approximately 26 500 F.A.A. employees will be tested. Petitioners compare these figures to the fact that according to Engen's declaration only 38 controllers have entered drug rehabilitation programs. The number of air controllers voluntarily entering drug rehabilitation programs or indeed the number of covered employees who may be required to submit a urine specimen for drug testing is not controlling. As I have noted it was the critical audit by the Inspector General of the Department of Transportation of the F.A.A.'s Drug Awareness Program along with the number of controllers voluntarily entering drug rehabilitation programs that caused Engen to order the preparation of the F.A.A. Substance Abuse Control Program. Moreover as the district court implicitly found in Rushton substance users are not rushing forward to reveal their drug abuse. Rushton supra at __ ("a chemical abuser would go to great lengths to conceal his or her own use.").

Respondents argue that the F.A.A. is not required to wait until drug abuse among air traffic specialists results in obvious on-duty impairment or life-threatening mishaps before it takes steps to deal with the problem.

One air traffic specialist abusing drugs could make a mistake in judgment leading to a catastrophic airline crash; such a risk is unacceptable.

Respondents March 11 Memorandum at 21. Even more compelling is the statistical information contained in the declaration of J. Michael Walsh the Director of the Workplace Initiatives at the National Institute of Drug Abuse. According to Walsh the National Institute of Drug Abuse since 1974 has been the federal agency responsible for monitoring national drug abuse trends and sponsoring drug-related research. Many of the statistics contained in Walsh's declaration are drawn from the 1985 National Institute's Household Survey.

According to Walsh's declaration the problem of drug use in the United States is pervasive. While there are differences in the extent of drug abuse depending on sex race-ethnicity and social class no segment of the population is immune to the problem. The statistical data provided in Walsh's declaration reveal:

Overall 70.4 million Americans age 12 and over (thirty-seven percent of the population) have used marijuana cocaine or other illicit drugs at least once in their lifetime. Nineteen percent of the population age 12 and over (36.8 million) have used illicit drugs at least once in the past year and twelve percent at least once during the month prior to being surveyed in the 1985 National Household Survey on Drug Abuse. In the eighteen to twenty-five young adult population representing those entering the workforce sixty-five percent have experience with illicit drugs forty-two percent in the past year (as of 1985).

Among the employed twenty- to forty-year olds twenty-nine percent reported use of an illicit drug in the past year and nineteen percent reported some illicit drug use at least once in the past month.

Among the employed twenty- to forty-year olds sixteen percent reported using marijuana and five percent reported using cocaine at least once during the past month.

The 1985 survey indicates trends in cocaine use which raise serious concerns The number of current cocaine users increased from 4.2 million in 1982 to 5.8 million in 1985. Recent cocaine users are far more likely to have used "free base" a method of smoking cocaine that is far more dangerous and likely to result in dependency than sniffing the drug; thirty-eight percent of those who had used cocaine in the past month report having smoked cocaine as compared to ten percent of those who had used cocaine more than a year ago. See also United States v. Alvarez 810 F.2d 879 891-92 (9th Cir. 1987) (Noonan J dissenting) (collecting statistics on the use and abuse of cocaine and its dangers).

Almost 62 million Americans (thirty-three percent) have tried marijuana at least once in their lives an increase of two percent since 1982. Ten percent of the population age 12 and over (18.2 million) currently use cocaine Many people who have tried marijuana have used the drug extensively. Among youth twenty-three percent of males and ten percent of females who reported trying marijuana have used it at least 100 times; among young adults thirty-nine percent of males and twenty-four percent of females who reported trying the drug have used it 100 or more times. Current users of marijuana are more likely to be current users of other drugs than persons not using marijuana

Hallucinogens which first gained prominence during the mid-sixties include such drugs as LSD PCP mescaline and peyote. Almost 13 million Americans have tried hallucinogens (seven percent) and nearly 1 million Americans (including 1.6% of all young adults eighteen to twenty-five) currently use hallucinogens.

In sum the evidence shows that drug use is widespread in the population as a whole and the F.A.A.'s concerns regarding use by its own employees are reasonable. Petitioners argue that observation by supervisors provides a less intrusive means than urinalysis testing for determining whether an employee is using prohibited substances The federal defendants on the other hand suggest that the primary purpose of the testing program is to rehabilitate employees in safety related positions and not to punish them For purposes of Fourth Amendment analysis it is immaterial whether a search is conducted for the purpose of benefiting employees who are substance abusers by offering the opportunity of rehabilitation may of course be considered in determining whether the control program will be effective in enhancing air safety and improving work performance It is true that supervisor observation may be less intrusive. However the evidence on the present record reveals that observation alone has not been effective in disclosing substance abusers within the agency. See generally Engen Declaration.

I find that there is ample evidence on the present record to justify the F.A.A.'s Substance Abuse Control Program provided the program as it is applied to flight service specialists otherwise meets constitutional requirements This depends on whether there is a public need to test these petitioners sufficient to outweigh their expectation of privacy. Determining the public necessity to screen petitioner-periodically for drug abuse requires an extensive analysis of the entire record in order to determine the duties and responsibilities of flight service specialists. Among other things it is necessary to consider the extent to which the information provided by flight service specialists is relied upon by pilots or air traffic controllers when making important decisions affecting public air safety and the degree to which flight service specialists themselves make decisions which affect the safety and welfare of those engaged in air flight including the degree to which flight service specialists work without supervision

3. Flight Service Specialists' and Air Safety.

The job description for Air Traffic Control Specialists (Station) also referred to as flight service specialists indicates that their principal duties and responsibilities include preflight and in-flight duties. Preflight duties include:

providing all necessary information required by a pilot to safely complete his intended flight and to assist the pilot in making flight decisions and calculations where required. This responsibility is satisfied by the ability to select pertinent information from the data available and to impart it to the pilot in a manner equal to his ability to comprehend

Exhibit 1 of Pippin Affidavit at 2. Such information relates to hazardous weather conditions along the intended route and the weather forecast for points of departure en-route and destination; aeronautical information concerning military operations; current information concerning the Airman's Information Manual and flight information publications; and any other information determined necessary by the pilot or the specialist Id.

In-flight duties are the same as preflight duties except that all "decisions and assistance rendered are time critical in nature because the aircraft is airborne" Id. Flight service specialists must also monitor navigational aids and communications collect interpret and disseminate pilot reports provide airport advisory service if necessary initiate action on overdue aircraft assist aircraft using VOR or ADF if necessary provide effective Position-fixing information to aircraft and in emergency situations provide instrument approach guidance. Id. Finally the job description indicates that flight service specialists work under general supervision but are required to perform established duties independently. Id.

Plaintiffs Mary J. Pippin Mark A. LaChapelle and Mark A. Boberick all describe their job duties similarly. They state:

My primary responsibilities as an Air Traffic Control Specialist (Station) are pilot weather briefings preflight planning (fuel consumption computation navigational procedures selection of most advantageous route estimated time en-route filing flight plans) in-flight advisories (severe weather avoidance failure of navigational aids pilot reports up-date weather conditions) search and rescue coordination of medivac flights and emergency services. In situations where I have been assigned or detailed to a flight service station located at an airport without a tower I was responsible for control zone operations in special VFR (visual flight rules) situations

Pippin Affidavit at 2; LaChapelle Affidavit at 2; and Boberick Affidavit at 2.

Petitioners Mary J. Pippin and Mark A. LaChapelle also state the degree of supervision they receive while working at the Anchorage Flight Service Station. They state:

Upon reporting for duty I proceed to the supervisors desk and enter my name on the sign-on log. The supervisor will verify my presence and is in a position to observe my general appearance and behavior During the course of the work day there is a supervisor at the supervisor's desk at all times. The supervisor's desk is in the operations area from which a supervisor can monitor employee behavior and the general operation of all specialists on the floor. At Anchorage Flight Service Station the manager routinely comes into the operations area each morning to observe the operations area and talk to each specialist on duty at the time.

Pippin Affidavit at 2-3. LaChapelle Affidavit at 2-3. Plaintiff Mark A. Boberick relates the same level of supervision at the Fairbanks Flight Service Station. See Boberick Affidavit at 2-3.

Henry A. Elias Manager of the Air Traffic Division Federal Aviation Administration Alaska Region worked as a flight service specialist in Alaska and other states from 1961 to 1970. He is now responsible for the operation of all air traffic control and flight service station facilities in the Alaska Region and is familiar with the staffing levels operational duties and performance requirements of flight service station specialists in the Alaska Region. Elias' declaration addresses job duties whether pilots rely on information provided by flight service specialists their importance to the safety of those engaged in air flight and the degree of supervision they receive. As to job duties he states:

A flight service station specialist's primary responsibility is to provide pilots with accurate and timely information concerning weather conditions and forecasts . . . A flight service specialist provides preflight and in-flight advisories to pilots to inform them of any hazards or unusual conditions they right encounter in their flights . . . Flight service specialists also participate in preflight planning by assisting the pilots in their calculation of fuel consumption recommending navigational procedures and optimum flight paths and helping the pilot file a flight plan. Flight service specialists are also required to detect overdue flights and to provide fast and accurate assistance in search and rescue missions coordinate Medivac flights and to render other services as necessary in response to accidents or emergencies . . . The flight service specialist is also responsible for relaying verbatim ATC clearances and control instructions between aircraft and those ATC facilities having jurisdiction of the airspace in which the aircraft is operating when the aircraft is not in direct communication with such ATC facility . . .Flight Service Specialists also have the responsibility for providing emergency flight assist services to pilots in an infinite variety of emergency situations.

Elias Declaration at 1-4.

Whether pilots rely on information provided by flight service specialists when making important decisions affecting public safety is also addressed by Elias. He states:

Pilots rely heavily on this weather information in determining whether they can operate their aircraft under visual flight rules (VFR) or whether they must be prepared and qualified to operate under the more complicated and difficult instrument flight rules (IFR). Pilots also use this information to decide whether they should even attempt a flight or to select their landing locations. Inaccurate or incomplete weather information from a flight service specialist can result in a pilot encountering weather conditions for which he/she is neither prepared nor qualified . . . Pilots rely upon flight service specialists to inform them fully and accurately of advisories as to out-of-service navigational aids changes in operational procedures pilot reports of dangerous conditions special military operations etc. because this information is not readily available to the public from any other source. Inaccurate or incomplete preflight or in flight advisories can place a pilot and of course any passengers in serious jeopardy if they are not informed of relevant hazards or unusual conditions.

Elias Declaration at 2-4.

Elias also addresses the degree to which flight service specialists themselves make decisions affecting public safety and the degree of supervision they receive. He states:

Flight service specialists must function relatively independently. Pilot weather briefings and preflight planning are all conducted directly between the controller and the pilot either face to face at the facility over the telephone or through the use of radio transmissions. It is not possible for a supervisor to closely monitor each of these conversations throughout an entire shift to determine whether there is any sign of impairment or whether a critical error or omission has been committed. Moreover at the larger flight service stations such as Anchorage and Fairbanks Flight Service Stations management staffing levels do not permit close observation of the performance of the controllers. At smaller facilities such as Barrow Bethel Yakutat Deadhorse Gulkana Northway and Bettles controllers work alone and without any supervisors present except during the hours from E a.m. to 4 p.m. Further facilities such a Illiamna Tanana and Palmer (as well as others) have no supervisors physically located at the facility.

Elias Declaration at d-5. Elias also notes that flight service specialists "must perform (their) duties "instantly and independently during times of crisis under circumstances where they cannot be closely monitored and at most times are performing without assistance."

C. Conclusion.

My analysis of the duties of flight service specialists leads me to conclude that they play an important part in the discharge of the F.A.A.'s nationwide responsibility for air safety. There is actually little if any underlying dispute between the petitioners' affidavits and the declaration of Elias regarding the responsibilities of flight service specialists. Flight Service Specialists perform important and vital duties. They must detect overdue flights and provide fast and accurate assistance in search and rescue missions Flight Service Specialists advise pilots of possible or potential hazards to be encountered in flight provide weather information assist in calculating fuel consumption preparing and filing flight plans and otherwise providing information upon which pilots are expected to and do rely.

For some time a medical clearance has been required of flight service specialists to determine whether they are fit to perform their duties. It is important that flight service specialists not be impaired in the performance of these duties because of substance abuse. Urinalysis testing is an effective means of screening employees for drug use and I conclude that the procedures for taking urine specimens are not unduly intrusive either under the standards prepared by the Federal Air Surgeon or under the standards adopted by the HHS. Indeed other more intrusive procedures in taking urine specimens have been upheld.

I now conclude that the national interests in air safety and the public's perception of safety justifies the intrusion into the legitimate expectation of privacy of flight service specialists resulting from the F.A.A. drug testing program. On balance I conclude that while the taking of a urine specimen for drug testing is a search in these circumstances the search is reasonable under the Fourth Amendment

III. PETITIONERS' OTHER ARGUMENTS

Petitioners maintain that the F.A.A. drug screening program unconstitutionally infringes their right to privacy explicitly protected by Article I Section 22 of the Alaska Constitution and implicitly protected by the First Fourth Fifth and Ninth Amendments to the United States Constitution and by the "penumbras of the Bill of Rights." Pet. Brief at 25.

It is true that the Alaska Constitution explicitly protects an individual's right to personal privacy. However it has long been established that a state constitution does not control or limit in any way the discretion of the head of a federal administrative agency unless Congress expressly declares otherwise See Mayo v. United States 319 U.S. 441 445 (1943). Thus petitioners' reliance on Alaska cases interpreting the Alaska Constitution to establish their privacy right simply is misplaced.

With respect to petitioners' claimed privacy right I am un-persuaded that respondents' drug testing program implicates any such right. Recently the United States Supreme Court in Bowers v. Hardwick 106 S.Ct. 2841 (1986) refused to extend the constitutional right of privacy emanating from the Due Process Clause of the Fourteenth Amendment to homosexual sodomy. Id. at 2844. The Bowers Court citing Carey v. Population Services 431 U.S. 678 (1977) noted that the right of privacy claimed by the respondent there resembled none of the privacy rights previously announced by Court. Id. Indeed in Carey Court noted that the right of "personal privacy includes the interest in independence in making certain kinds of important decisions . . . ; 3250 Carey 431 U.S. at 684 (citing Whalen v. Roe 429 U.S. 589 599-600 (1977) but Court linked such decisions to areas previously recognized by Court. See Carey supra at 685. See e.g. Pierce v. Society of Sisters 268 U.S. 510 (1925) (child rearing and education); Meyer v. Nebraska 252 U.S. 390 (1923) (child rearing and education); Prince v. Massachusetts 321 U.S. 158 (1944) (family relationships); Skinner v. Oklahoma 316 U.S. 535 (1942) (procreation); Loving v. Virginia 388 U.S. 1 (1967) (marriage); Griswold v. Connecticut 381 U.S. 479 (1965) (contraception); Eisenstadt v. Baird 405 U.S. 438 (1972) (contraception); and Roe v. Wade 410 U.S. 113 (1973) (abortion). The privacy rights alleged here have nothing to do with family matters or procreation. Thus given the Bowers' Court refusal broadly to privacy rights I do not find a constitutionally protected privacy right under the facts of the present case. see Von Raab 808 F.2d at 1061 (Higgonbotham J. concurring).

Petitioners raise several other constitutional arguments that I do not find persuasive Petitioners argue that the F.A.A. program violates their Fifth Amendment right against self-incrimination because prior to urine collection employees are required to fill out forms listing the prescription and nonprescription drugs such employees are taking. This argument lacks merit. The Fifth Amendment privilege extends only to evidence of a communicative or testimonial nature. See Schmerber v. California 384 U.S. 757 761 (1966). Petitioner seek to enjoin the collection and screening of urine for the presence of drugs. This does not in any way involve evidence of a testimonial or communicative nature. See Schmerber 384 U.S. at 761 (withdrawing of blood does not violate Fifth Amendment privilege); National Treasury Employees Union Von Raab 808 F.2d at 1062-63 (Higginbotham J. concurring) (accord). Evidence of a communicative nature is compelled by requiring an employee to list medications he or she is taking. However the use of prescription or nonprescription medication is not a criminal offense. Thus respondents do not compel any employee to be a witness against himself in violation of the Fifth Amendment

Petitioners argue that the F.A.A. program violates several Fifth Amendment due process liberty and property guarantees. None of these arguments has merit. Petitioners broadly state that requiring employees to undergo drug abuse treatment or rehabilitation is arbitrary and capricious and violates substantive due process. Petitioners offer little in the way of analysis or argument in support of this particular proposition. Petitioners al Co argue that the screening process produces many false positive results. This may lead to arbitrary action against an employee which in turn impinges upon due process of laws disagree with the factual contention I am satisfied based on the record that the procedures and standards provide accurate test results. If an employee tests positive on the EMIT test his urine is re-tested using the highly accurate gas chromatography/mass spectrometer which has been viewed by courts as "the most accurate test available." Williams v. Secretary of the Navy 787 F.2d 552 555 (Fed. Cir. 1986). These procedures were sustained by the Eighth Circuit in McDonell 809 F.2d at 1308. Accord Rushton supra.

Finally petitioners argue that the F.A.A. program may abridge a property interest in continued employment and a liberty interest in reputation without providing procedural due process of law. Without deciding the scope of the procedural protection due employees subject to periodic drug to periodic testing I find that petitioners were adequately notified that the F.A.A. could institute a program for collecting urine specimens during the periodic physical examination and that these specimens would be screened for alcohol and drugs. Procedural due process issues concerning the consequences following a positive test including drug rehabilitation and the possibility of separation may be more fully considered on summary judgment.

Petitioners to enjoin not only the F.A.A. drug-testing program but the Department of Transportation program as well. Petitioners characterize the F.A.A. program as mandatory periodic drug testing and the DOT program as mandatory random drug-testing. Petitioners argue that their challenge to the DOT program is ripe because random drug testing by the DOT will be conducted. Petitioners state that "the only considerations now are the program procedures Respondents reply that the DOT program is not ripe since it remains in the "drafting stages"

The doctrine of ripeness prevents courts through avoidance of premature adjudication from entangling themselves in abstract disagreements over administrative policies and also to protect the agencies from judicial interference until an administration decision has been formalized and its effects felt in a concrete way by the challenging parties

Abbott Laboratories v. Gardner 387 U.S. 136 148-49 (1967) Moreover a claim is ripe for consideration "if the issues raised are primarily legal and do not require further factual development and the challenged action is final." Trustees for Alaska v. Hodel 806 F.2d 1378 1381 (9th Cir 1986) Ripeness is a question Of timing and a court looks to "the facts as they exist today in evaluating whether the controversy before us is sufficiently concrete to warrant our intervention." Assiniboine and Sioux Tribes v. Board of Oil and Gas 792 F.2d 782 788 (9th Cir.1986).

The facts as they exist today are these: On January 21 1987 the Secretary of Transportation Elizabeth Hanford Dole issued a memorandum to all DOT employees announcing a department-wide drug testing program. The memorandum stated that employees in critical safety and security positions whose functions directly affect public health and safety the protection of life and property or national security would be subject to testing. The announcement stated that employees in critical safety and security positions would be subject to pre-employment random periodic and reasonable suspicion accident and unsafe-practice testing. All other DOT employees would be subject to reasonable suspicion accident and unsafe practice testing. Secretary Dole stated that the details of the program would be announced in the future. As of now the DOT program has yet to take effect.

These facts demonstrate that the DOT program has not yet been fully defined and that the program has not been implemented. No random drug testing of F.A.A. employees is now being conducted by the DOT. Moreover further factual development may be necessary before any well-informed decision could be rendered with respect to the DOT program. I conclude that petitioners challenge of the DOT program is not ripe at this time

IV. CONCLUSION

I conclude that petitioners fail under either test followed in the Ninth Circuit for injunctive relief. See generally American Motorcyclist Ass'n v. Watt 714 F.2d 962 965 (9th Cir. 1983). Petitioners have failed to establish either probable success on the merits or that the balance of hardships tip sharply in their favor. The evidence shows that drug abuse is sufficiently widespread to justify the F.A.A.'s concern. The record also indicates that flight service specialists play an important role in the F.A.A.'s primary duty of ensuring safe air travel for the public. Urinalysis is an accurate method of testing employees for drug abuse and is a "limited intrusion" into the petitioners legitimate expectation of privacy. McDonell 808 F.2d at 1308. The public's substantial interest in air safety outweighs this intrusion and therefore for purposes of the injunctive relief requested here I conclude that the F.A.A.'s Substance Abuse Control Program meets the reasonableness test of the Fourth Amendment and otherwise complies with the due process and self-incrimination clauses of the Fifth Amendment. For the reasons stated I reject petitioners application for a preliminary injunction.

 
Notes:

*fn1 Part of the Qualification Standards for Air Traffic Control Series 2152.

*fn2 Formerly the Civil Service Commission.

*fn3 The employees who are subject to the F.A.A. Substance Abuse Control Program are listed in the F.A.A. notice establishing procedural guidelines for the Program:

*fn4 CompuChem Laboratories in Research Triangle Park North Carolina.

*fn5 President Reagan on September 15 1986 issued Executive Order 12564 (EO 12564) ordering the head of each executive agency to develop a plan for achieving a drug free workplace. EO 12564 mandates that agencies implement the following:

1. Mandatory drug testing programs for any job applicant and for employees in "sensitive positions" as well as voluntary testing programs for all employees. The programs shall test for the presence of "illegal drugs which includes controlled substances listed in Schedule I or II as defined by section 802(6) of 21 U.S.C. the possession of which is unlawful and does not include use of a controlled substance pursuant to a valid prescription.

2. Mandatory drug testing for all employees if there is reasonable suspicion that the employee uses illegal drugs; in an examination regarding an accident or "unsafe practice or as part of a follow-up rehabilitation program for employees who tested positive.

3. Agencies shall develop an Employee Assistance Program (EAP) to provide Counseling and rehabilitation for all employees who test positive or who voluntarily identify themselves as illegal drug users.

4. Agencies shall initiate removal actions pursuant to applicable statutes for all employees subject to mandatory testing who refuse to submit; for employees testing positive who refuse to participate in EAP; and for employees testing positive and participating in EAP but who continue using illegal drugs. EO 12564 also requires agencies to give notice to employees sixty days prior to implementing a drug testing program but exempts existing drug testing programs from the notice requirement. EO 12564 authorizes the Secretary of Health and Human Services to promulgate scientific and technical 'guidelines for drug testing programs and requires agencies to comply with those guidelines once promulgated. Finally EO 12564 directs the Office of Personnel Management (OPM) to issue guidance to agencies on the implementation of this EP and to develop a model EAP for the agencies.

*fn6 I suspect a test for physical disability would become much more controversial if a blood specimen were required for testing of Acquired Immunity Deficiency Syndrome.

*fn7 Circuit Court Higginbotham wrote a concurrence observing that the trial court's conclusion that the Customs Service drug testing program invaded penumbral rights of privacy under the federal constitution added nothing. Id. at 1061. Moreover he found error in the district court's sua sponte determination that the program violated the self incrimination and due process clauses of the Fifth Amendment. Id. at 1062. Court Higginbotham observed that the fifth Amendment privilege against self-incrimination "protects an accused only from being compelled to testify against himself or to provide evidence of a testimonial or communication nature Id. Moreover contrary to the 'findings of the district court Court Higginbothm concluded that no court has ever held that the combination of tests relied upon in the Customs Service testing program amounted to a denial of due process. Id. at 1063.

*fn8 The HHS guidelines were issued pursuant to 'Executive Order 12564 by the Alcohol Drug Abuse and Mental Health Administration of the Department of Health and Human Services.

*fn9 Chapter 731 of the Federal Personnel Manual incorporates the Office of Personnel Management's suitability program. It requires designating every position within the federal competitive service as either special sensitive critical-sensitive non-critical sensitive or non-sensitive This program ensures that "the employment and continued employment of each person in the competitive service of the Executive Branch of the Government will 'promote the efficiency of the Service'" Federal Personnel Manual Cahopter 731 at 3-4 (Jan. 6 1984) (hereinafter FPM). Suitability to ensure the efficiency of the agency in carrying out its function includes determining the sensitivity of the employee's position FPM at 4 Agency heads are required to designate the sensitivity level of each agency program and competitive service position in accordance with the uniform established criteria of Chapter 731. Every position must be designated at a level that corresponds with the responsibilities and other attributes of the position as they relate to the agency's function. FPM at 7 Levels of responsibility are ranked "according to the degree of adverse impact upon the efficiency of the service that could result from its incumbency by an unsuitable person with special sensitive having the most adverse impact and non-sensitive the least adverse impact. Id.