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March 15, 1990

ROBERT V. CONNELLY, et al., Plaintiffs,
CONSTANCE NEWMAN, et al., Defendants

D. Lowell Jensen, United States District Judge.

The opinion of the court was delivered by: JENSEN


 On February 28, 1990, this Court heard plaintiffs' and defendants' cross-motions for summary judgment. Laurence Pulgram and Richard Marcantonio appeared for plaintiffs. Mary Magee appeared for defendants. For all the following reasons, the Court grants summary judgment to plaintiffs on the issue of post-accident testing, and permanently enjoins such testing by defendants. In addition, the Court grants partial summary judgment to defendant on the issue of reasonable suspicion testing. Defendants' motion for summary judgment as to post-accident testing, and plaintiffs' motion for summary judgment as to reasonable suspicion testing, are both denied.


 This is an action brought by certain government employees against the United States Office of Personnel Management ("OPM") challenging a recently implemented drug-testing plan. Plaintiffs contend that the OPM drug-testing plan violates the employees' rights under the Fourth Amendment by subjecting employees to unlawful searches and seizures.

 As the successor agency to the Civil Service Commission, the Office of Personnel Management is responsible for developing, implementing and overseeing federal personnel policies. OPM implemented its Drug-Free Workplace Plan ("the Plan") in September 1988, in response to Executive Order No. 12,564. 51 Fed. Reg. 32,889 (1986). This Order charges each executive agency to develop drug-testing programs that include post-accident and reasonable suspicion testing. The OPM Plan tests urine samples for the presence of five drugs: marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP).

 Plaintiff class consists of some 5800 OPM employees, all of whom are potentially subject to post-accident and reasonable suspicion drug testing under the OPM Plan. Procedures for collection and testing of urine samples are governed by the Department of Health and Human Services Guidelines ("HHS Guidelines"), 53 Fed. Reg. 11970 (1988), as described previously by this Court. See Order of June 15, 1989 at 3-4.

 In its order of June 15, 1989, the Court addressed three aspects of the OPM Plan: (1) random testing of all OPM employees at the investigator level or higher; (2) post-accident or unsafe practices testing whenever an injury results from an on-duty accident that requires hospitalization or causes property damage over $ 1000; and (3) reasonable suspicion testing. The Court preliminarily enjoined the random and post-accident drug testing portions of the OPM Plan, while allowing reasonable suspicion testing under the Plan to proceed before trial.

 The parties finalized the Court's injunction on random testing by stipulation. Plaintiffs now move for summary judgment, pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, regarding the two types of drug testing still at issue.


 In considering the constitutionality of drug-testing programs for government employees, the Court does not write on a blank slate. Rather, the Court is guided by two recent Supreme Court decisions, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), and Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989).

 Drug testing by the federal government of its employees is a search under the Fourth Amendment and therefore must meet the requirement of reasonableness. Skinner, 109 S. Ct. at 1413. Although there is a reduced expectation of privacy for federal employees at the workplace, these individuals do not forfeit their Fourth Amendment rights "merely because they work for the government instead of a private employer." O'Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 1498, 94 L. Ed. 2d 714 (1987).

 The warrant requirement generally applicable to searches and seizures under the Fourth Amendment does not necessarily apply to drug testing of federal employees. Skinner and Von Raab suggest that a different legal standard applies to searches performed in non-law enforcement contexts. Because drug testing of federal employees represents one such context, courts must consider whether "special governmental needs" beyond normal law enforcement justify departure from the usual warrant and probable-cause requirements. Von Raab, 109 S. Ct. at 1390-91; Skinner, 109 S. Ct. at 1414. If such special needs exist, courts consider all of the circumstances of the drug testing program at issue, balancing the individual's privacy expectations against the government's interests. Id. In evaluating whether a particular drug testing program is reasonable under the Fourth Amendment, a ...

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