Roberts

The Attorney General and the Federal Bureau of Prisons (collectively the Bureau) appeal a permanent injunction of the district court against the Bureau’s drug testing program. We reverse in part and remand.

BACKGROUND

By executive order of September 15, 1986, the President of the United States directed each agency in the Executive Branch to establish a program to test employees in sensitive positions for the use of illegal drugs. Exec. Order No. 12564, 51 Fed.Reg. 32,889 (1986). The Bureau accordingly drew up a program including the regular annual testing of management (positions rated G-13 or above), the testing on reasonable suspicion of all employees, and the random testing of 5-10 percent per year of all the Bureau’s 21,000 employees.

In June 1988, the American Federation of Government Employees and certain individual employees (collectively the Union), sought to enjoin the program. On May 12,1992, the district court issued the following permanent injunction:

American Fed. of Gov’t Employees, Council 33 v. Barr, 794 F.Supp. 1466 , 1479 (N.D.Cal.1992).

The Bureau appealed.

ANALYSIS

Issues no Longer in Litigation. The Union does not contest that the Bureau may test…