Federal drug-testing power expanded to all job seekers


WASHINGTON -- A federal appeals court gave the federal government yesterday the most sweeping constitutional authority for drug testing that a court has ever upheld: the power to require every applicant for a job to take a test.

The 2-1 decision by the U.S. Circuit Court of Appeals here, in fact, went further than the Bush administration and the Reagan administration ever had said they intended to go with mandatory urine testing.

In the 4 1/2 years since President Ronald Reagan announced plans to make the federal government a "drug-free workplace," the government has made plans only to test workers who seek or hold "sensitive positions."

Although some agencies, like the FBI, have labeled all of their positions "sensitive," they still have sought to justify testing for drugs on the premise that it is necessary to prevent a drug-abusing worker from holding a job in which he or she could cause harm.

The Circuit Court here, in all its past rulings on all kinds of tests for drugs, had always taken into account the nature of the job.

Yesterday's divided ruling by a three-judge panel of that court, -- however, indicated that the Constitution allows the testing of all potential employees, no matter what kind of job they would hold. No other federal court has left out, entirely, the consideration of a potential tie between the type of job and harm to public safety, law enforcement or national security.

The ruling came in a test case involving the Justice Department's program of testing applicants for jobs at its

Washington headquarters -- a program that itself is not department-wide but in general is limited to specific jobs in specific branches.

The case involved Carl Willner, a young Justice Department attorney

who had gone to court after refusing to take a drug test to get a job in the department's antitrust division. Mr. Willner had developed an interest in working at the department, ironically, when he sued it as a private lawyer over its drug-testing program for its existing employees.

He won his own challenge a year ago in U.S. District Court here and got a job. Yesterday, the two-judge majority in the Circuit Court overturned his victory.

In doing so, the majority declared that applicants for new jobs in the government have only minimal "privacy expectations," and the government can override those by arguing that applicants know they will have to take a test, that they will have to reveal other information about themselves and that they are "strangers" or "outsiders" that the government must test to bar drug-abusers from its ranks.

Another new facet of the decision is that it allows the government to justify drug testing of job applicants

the theory that such tests are necessary to support its "public image" -- a reason that the Circuit Court previously had ruled could not be used to defend mandatory drug testing of existing employees.

The majority, in an opinion written by Circuit Judge A. Raymond Randolph, also supported the government's broad drug-testing power by noting that such testing is now required widely in private industry -- a rationale not previously used by courts in upholding public employee drug tests.

The Randolph opinion was supported by Circuit Judge Laurence H. Silberman.

Circuit Judge Karen Henderson dissented, saying that the ruling logically could "sanction a blanket testing requirement for all federal job applicants."

She complained, in particular, about the majority's use of private industry practice to help justify government-ordered testing. She called that approach "both improper and dangerous."

Stephen H. Sachs, Maryland's former attorney general, now a private Washington lawyer who represents Mr. Willner, said he would ask the full 12-judge Circuit Court to review yesterday's decision -- something that the full court seldom does.

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