Doubts Reagan Program Is Lawful : Judge Bars Drug Testing of U.S. Prison Employees

A federal judge in San Francisco on Friday prohibited the Reagan Administration from beginning a program of random drug testing of all 13,000 federal prison employees, which was to begin Monday.

“The program would force law-abiding employees of the Bureau of Prisons to submit to testing even though not suspected of any wrongdoing, negligence or dereliction of duty,” U.S. District Court Judge Stanley A. Weigel said in a brief but strongly worded order. Weigel banned the tests until Thursday, when he holds a hearing to decide whether to issue a preliminary injunction.

Weigel said decisions by the U.S. Supreme Court and the federal 9th Circuit Court of Appeals, based in San Francisco, “cast serious doubt upon the constitutionality and lawfulness” of the program, which is part of massive drug-testing efforts launched by the Reagan Administration earlier this year.

Search and Seizure Issues

The Supreme Court has not ruled on the constitutionality of drug testing. Weigel apparently was alluding to Supreme Court decisions on Fourth Amendment search and seizure issues referred to in a brief by lawyers challenging the tests. The Fourth Amendment provides that the government cannot search a person without probable cause to believe that a crime has been committed.

The judge said his order does not preclude testing Bureau of Prisons employees for whom “there is a reasonable suspicion that drug use” is impairing performance.

The order has no impact on drug-testing programs being conducted by private businesses.

Attorneys for workers challenging the program were jubilant, while a Justice Department spokeswoman said it was too soon to determine the significance of the ruling.

Weigel’s ruling was in response to a lawsuit by the American Federation of Government Employees, which represents about 700,000 federal workers.

‘Ongoing Battle’

“This is a great victory in our ongoing battle to stop the Reagan Administration from continuing to trample on federal workers’ constitutional rights,” Kenneth T. Blaylock, president of the union, said in a statement.

The organization also has filed suit in the same court challenging the executive order Reagan issued in September calling for random urinalysis of 345,000 federal employees who hold “sensitive” jobs. The Bureau of Prisons has declared that all of its employees hold sensitive jobs.

“We believe that under current 9th Circuit case law, random drug testing by the government is unconstitutional under the Fourth Amendment,” said Mark Roth, general counsel for the union. “Therefore, it’s likely that major portions of the President’s dragnet testing of federal employees which we’re challenging in the same court will be struck down,” Roth predicted.

Late Friday, Amy Brown, a Justice Department spokeswoman in Washington, said Weigel’s decision “is not unimportant, but it’s not fully resolved yet.” She said that if Weigel issues a preliminary injunction, the Justice Department may seek a stay of the injunction to put the testing program into effect while further litigation on the case ensues.

Rulings Conflict

Earlier decisions by federal appeals courts on random drug testing of federal employees have been in conflict.

In January, 1987, a federal appeals court in New Orleans approved a random testing program allowing the U.S. Customs Service to test new employees and those who want promotions to sensitive jobs. The 2-1 decision, written by Judge Alvin B. Rubin, held that it is reasonable for the government to set strict standards for employees charged with stopping the flow of drugs into the United States.

However, in February, a 2-1 decision written by federal appeals Judge Thomas Tang in San Francisco held that the Transportation Department had to show a “particularized suspicion” of an employee before a urine test could be imposed on a railway worker.

High Court to Act

The conflict between the two federal appeals courts, plus the arrival of new Supreme Court Justice Anthony M. Kennedy, apparently prompted the high court to take on the issue. An appeal of the New Orleans decision by the National Treasury Employees Union will be heard in October and a ruling is expected several months afterward.

Cliff Palefsky, a San Francisco lawyer who is co-counsel for the government employees union in the prison workers case, said it is possible the Supreme Court eventually will hear several drug testing cases because of factual distinctions.

“You could distinguish Customs employees from private employees working on a railroad or secretaries working in a prison,” he said.