MEMORANDUM
On September 15,1986 President Reagan issued Executive Order 12564
1
which requires federal agencies to develop and implement plans to attain a drug-free workplace, in part by the use of compulsory drug testing. Pursuant to this order, the Deрartment of Health and Human Services developed its “Drug-Free Workplace Plan.” The American Federatiоn of Government Employees (AFGE) and the National Treasury Employees Union (NTEU) sought a preliminary injunction to enjoin thе random testing of certain employees under this plan. The Court granted the motions in part and denied them in part with rеspect to certain employees.
American Federation of Gov’t Employees v. Sullivan,
The issue here is whether HHS may designate for random drug testing employees who arе motor vehicle operators but who do not carry passengers. The two positions in question are Messenger/Motоr Vehicle Operators, who act as couriers, and Mail Clerk/Motor Vehicle Operators who receivе, sort, and deliver mail. The plaintiffs and the defendant have each moved for summary judgment.
The reasonableness of random drug testing is determined by “balancing] the individual’s privacy expectations against the Government’s interests to detеrmine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.”
National Treasury Employees Union v. Von Raab,
Applying this balancing test, the Court of Appeals for this Circuit upheld the testing of mail van operators who had undergone extensive background investigations and possessed either top secret or secret security clearances.
American Federation of Gov’t Employees v. Skinner,
*257
In
National Treasury Employees Union v. Yeutter,
As noted, the reasonableness of drug testing turns on balancing the government’s interest against the individual’s privacy expectation. The employees at issue here do not carry passengers and do not have access to classified information. Therefore, neither the national security concerns articulated in
Skinner
nor the passenger safety rationale of
Yeutter
is applicable. The government’s interest here is the safety risk that an impaired government driver might pоse to other drivers on the road. While not insubstantial, this is obviously no different than the interest the public and the government hаve in keeping any potentially impaired driver off the road. If this is a sufficient “special government need[ ]” to рermit warrantless searches under
Von Raab,
The intrusion into an individual’s expectation of privacy is obvious and substantial:
An employee selected for random testing must proceed to a designated private site or a restroom stall in the company оf a collection site monitor. Upon entering the restroom, the employee must remove any unnecessаry outer garments that might conceal items or substances that could be used to tamper with the specimen. The еmployee must then wash his or her hands before urinating and remain in the restroom or collection site throughout the collection process ... The collection site monitor then remains close by, listens to the urination, and notеs any “unusual behavior” while the employee is urinating. The employee is instructed not to flush the toilet until the urine speсimen is turned over to the collection site person.
Bangert v. Hodel,
In the view of this Court, the individual’s expectation of privacy and his rights under the Fourth Amendment to the Constitution outweigh the government’s legitimate interests here, and accordingly it would be unreasonable and hence unconstitutional to subject these motor vehicle operators to random drug testing.
An' Order consistent with this Memorandum is issued contempоraneously herewith.
ORDER
Upon consideration of plaintiffs’ motions for summary judgment and for a permanent injunction, defendant’s motion for summary judgment, the oppositions and replies thereto, it is this 23rd day of March, *258 1992, in accordance with a Memorandum issued this date
ORDERED that the defendant’s motion for summary judgment be and it is hereby denied; and it is further
ORDERED that the plaintiffs’ motions for summary judgment and for a permanent injunction against thе random drug testing of motor vehicle operators whose duties do not include the transportation of passengers be and they are hereby granted.
Notes
. Reprinted in 51 Fed.Reg. 32889-32893 (Sept. 15, 1986).
. The court in
Yeutter
characterized this concern as "more rhetoric than argument” but that was in the context of considering government drivers who are responsible for the safety of their passengers and fellow government employees. The court specifically went on to question whether the government could justify testing drivers who do not carry passengers.