National Federation of Federal Employees-IAM v. Vilsack , 681 F.3d 483 ( 2012 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2012 Decided June 8, 2012
No. 11-5135
NATIONAL FEDERATION OF FEDERAL EMPLOYEES-IAM,
APPELLANT
v.
THOMAS J. VILSACK, IN HIS OFFICIAL CAPACITY AS
SECRETARY OF AGRICULTURE AND THOMAS L. TIDWELL,
IN HIS OFFICIAL CAPACITY AS CHIEF OF THE
UNITED STATES FOREST SERVICE,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01735)
Stefan P. Sutich argued the cause and filed the briefs for
appellant.
Mark W. Pennak, Attorney, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were Tony
West, Assistant Attorney General, and Leonard Schaitman,
Attorney. R. Craig Lawrence, Assistant U.S. Attorney entered
an appearance.
Before: ROGERS and KAVANAUGH, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court by Circuit Judge ROGERS.
Dissenting opinion by Circuit Judge KAVANAUGH.
ROGERS, Circuit Judge: The National Federation of Federal
Employees (“the Union”) challenges the constitutionality of a
random drug testing policy applicable to all employees working
at Job Corps Civilian Conservation Centers operated by the U.S.
Forest Service. The district court granted summary judgment in
favor of the Secretary of Agriculture and the Chief of the U.S.
Forest Service (hereinafter “the Secretary”) and denied the
Union’s request for a preliminary injunction. Upon de novo
review, we conclude that the Secretary has failed to demonstrate
“special needs” rendering the Fourth Amendment requirement
of individualized suspicion impractical in the context of Job
Corps employment. See Vernonia School Dist. 47J v. Acton,
515 U.S. 646, 653 (1995); Nat’l Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 665–66 (1989). Although identifying
governmental interests in the students’ abstention from drug use
and in their physical safety, the Secretary offered no foundation
for concluding there is a serious drug problem among staff that
threatens these interests and thus renders the requirement for
individualized suspicion impractical. Rather, the Secretary’s
evidence to date suggests the contrary. Because the Secretary
has offered a solution in search of a problem, the designation of
all Forest Service Job Corps Center employees for random drug
testing does not fit within the “closely guarded category of
constitutionally permissible suspicionless searches,” Chandler
v. Miller, 520 U.S. 305, 309 (1997). Accordingly, we reverse
and remand the case for proceedings consistent with this
opinion.
3
I.
The Department of Labor (“DOL”) administers the Job
Corps program at approximately 124 residential and non-
residential centers across the United States. See 29 U.S.C.
§ 2887(a), (b) (2006). These centers include twenty-eight Job
Corps Civilian Conservation Centers operated by the Forest
Service, a unit within the Department of Agriculture (“USDA”).
See id. § 2887(c)(1); 36 C.F.R. § 200.1(a) (2012); 7 C.F.R. pt.
15, subpt. A, app. (2012). As described by Larry J. Dawson, the
National Director of the Forest Service Job Corps program,
these Centers offer, in addition to education, vocational training
and counseling, “programs of work-based learning to conserve,
develop, and manage public natural resources and public
recreational areas or to develop community projects in the
public interest,” Decl. Larry J. Dawson ¶ 3, Nov. 5, 2010, and
are located generally in “remote, rural areas,” id. ¶ 5; see 29
U.S.C. § 2887(c)(1).
All twenty-eight Forest Service Job Corps Centers are
residential. Students, ages sixteen to twenty-four, live and work
at the Centers except during winter and summer breaks,
although some vocational training and other activities occur off
site; they are prohibited from keeping personal vehicles on site.
When they first enroll, students are advised of the Job Corps
Zero Tolerance Policy, 29 U.S.C. § 2892(b)(2)(C)(ii) (enacted
in 1998), and if they fail an initial drug test, they are placed in
a special training program and must take another drug test
within forty-five days; a second positive test for drug use results
in the student’s expulsion from the Job Corps. Students remain
subject to suspicion-based drug testing while in the program.
Any Center employee can report suspicion of student drug use,
and residential staff periodically search for illegal drugs and
alcohol in student residential areas and in students’ luggage
4
upon their return from winter and summer breaks. Canine units
assist in these searches at some Job Corps Centers.
Prospective and incumbent Job Corps Center employees
must also undergo screening. For positions “supervis[ing]
young people,” all prospective employees are subject to a “Child
Care National Agency Check with Inquiries: Non Sensitive/Low
Risk.” For certain positions, including directors and certain
specialists, prospective employees must also undergo a
“Moderate Risk Background Investigation: Moderate
Risk/Public Trust.” Drug related offenses discovered during
these background checks inform suitability determinations by
hiring officials. Once employed in the Job Corps, all employees
are responsible for “modeling, mentoring, and monitoring”
appropriate workplace behavior under DOL policy. Suppl. Decl.
Larry J. Dawson ¶ 3, Jan. 27, 2011. Employees at Forest
Service Job Corps Centers are also subject to reinvestigation
approximately every fifteen years. See Dawson Suppl. Decl.
¶ 5.
In 1988, the USDA developed a “Plan for a Drug Free
Workplace,” which called for drug testing on the basis of
reasonable suspicion and of new employees in certain
designated job positions; of Job Corps Center positions, only
nursing occupations were designated.1 (Employees required to
hold commercial driver’s licenses, such as residential staff at
1
See Executive Order No. 12,564 § 3(a), 51 Fed. Reg.
32,889, 32,890 (Sept. 15, 1986), reprinted in 5 U.S.C. § 7301 note
(requiring agency heads to “establish a program to test for the use of
illegal drugs by employees in sensitive positions,” as determined by
“the nature of the agency’s mission and its employees’ duties . . . and
the danger to the public health and safety or national security that
could result from the failure of an employee adequately to discharge
his or her position”).
5
Job Corps Centers, were subject to random testing pursuant to
Department of Transportation regulations.) Drug testing was to
be conducted in accordance with guidelines promulgated by the
Department of Health and Human Services (“HHS”). See
Executive Order No. 12,564 § 4(d), 51 Fed. Reg. 32,889, 32,891
(Sept. 15, 1986), reprinted in 5 U.S.C. § 7301 note.2 Following
a 1995 investigation by a U.S. Senate Committee that identified
a drug problem among Job Corps students, see S. REP. NO. 104-
118 (1995), the DOL established the Job Corps Zero Tolerance
Policy and instructed that “[a]ll staff will be held accountable for
actively supporting and implementing the Job Corps Zero
Tolerance policy” and “must be held to the same standards of
conduct described in this policy for students.” Decl. Gerald A.
Nagel, Drug Free Workplace Program Manager, USDA, ¶ 18,
Nov. 5, 2010 (quoting 1995 DOL Job Corps Instruction No. 94-
21, “Implementation of Expanded Zero Tolerance for Violence
and Drugs Policy”). The DOL did not designate Job Corps
employees for random drug testing. The USDA, however, in
1996 designated all Forest Service Job Corps staff positions for
random drug testing. The Union, representing Forest Service
Job Corps Center employees, objected to the new designation,
and the new policy was not implemented. In 2003, the USDA
again designated Forest Service “Job Corps Center staff” for
random testing,3 but as before the policy was not implemented.
2
The HHS “Mandatory Guidelines for Federal Workplace
Drug Testing Programs,” 73 Fed. Reg. 71,858 (Nov. 25, 2008) (“HHS
Guidelines”), provide that employees to be tested report to a collection
site, where they produce a urine sample within an enclosed stall
without direct visual observation. Id. at 71,863. Samples may be
tested only for specified drugs, id. at 71,880, and positive tests are
reported only after a second test using a different method confirms the
result, id. at 71,893–94.
3
USDA Departmental Regulation No. 4430-792-2 establishes
the policy and procedures for the Drug-Free Federal Workplace
6
During collective bargaining negotiations for an agreement
entered into on May 27, 2010, however, the Forest Service
informed the Union that all Job Corps Center staff would be
subject to the random testing program. See Nagel Decl. ¶ 19.
By letter of August 30, 2010, the National Director instructed
Forest Service Job Corps Center directors to “come into
compliance” with the random testing policy, noting that only
nurses and employees required to hold a commercial driver’s
Program and Workplace Drug and Alcohol Testing Program. It
requires random testing of specified positions, including all Job Corps
Center staff as follows:
Job Corps Center Staff (Includes any occupational
series in which the incumbent may perform the duties
described below) (Subject to applicant testing).
Each Center staff member see [sic] students every
day, and each staff member is responsible for the
safety of every student, including administering CPR
and/or first aid whenever needed. Also, each staff
member is required to possess a valid driver's license
to transport students in cases of emergency, to and
from work sites, etc.
Drug usage by Center staff members could result in
the loss of students' lives or injury to the students.
Also, all Center staff personnel are responsible for
administering the Zero Tolerance for Drug Policy.
Improper or illegal drug use is inconsistent with
assisting others in becoming and remaining drug-free.
USDA Departmental Regulation No. 4430-792-2, app. A, § 14 (Aug.
25, 2003). Job Corp nursing occupations are also subject to random
testing. See id. § 16.
7
license were in compliance.4 Mem. from Larry J. Dawson to
Forest Service Job Corps Center Directors 1 (Aug. 30, 2010).
On October 13, 2010, the Union sued the Secretary, seeking
a declaratory judgment that the random testing policy covering
all Forest Service Job Corps Center employees violates the
Fourth Amendment and an order enjoining the policy’s
implementation. The Union also moved for a preliminary
injunction, attaching various sworn declarations, including the
declaration of Larry E. King, vice president of the Union’s
Forest Service Council and a Job Corps employee since 1983,
stating that neither the USDA nor the Forest Service had made
any showing that random drug testing of staff was necessary for
the safe operation of the Centers. Decl. Larry E. King ¶¶ 1, 3,
11–12, 17, Oct. 13, 2010. The district court granted the
Secretary’s motion for summary judgment, concluding that the
Secretary’s interests in preventing illegal drug use at the Job
Corps Centers by both students and staff justified the intrusion
4
Forest Service Job Corps Center employees fall roughly into
five categories. (1) Administrative staff includes file clerks,
automation clerks, and computer assistants; nurses and medical
records technicians; supply technicians and purchasing agents; and
cooks. (2) Educational staff includes classroom teachers and driver’s
education teachers. (3) Counseling staff consists of both guidance
counselors and drug and alcohol counselors. (4) Vocational staff
members teach students certain trades, such as information
technology, culinary arts, urban forestry, welding, brick masonry,
carpentry, and electrical work. (5) Residential and recreational
employees include social service assistants and recreation assistants,
who are primarily responsible for monitoring student residential areas
and transporting students as necessary, and who are subject to random
drug testing by reason of being required to have commercial driver’s
licenses. Additionally, outside independent contractors provide
various services at the Job Corps Centers, including vocational
training.
8
on the employees’ privacy interests and Fourth Amendment
rights, and it denied the Union’s request for an injunction. Nat’l
Fed’n Fed. Emps.-IAC v. Vilsack, 775 F. Supp. 2d 91, 113–14
(D.D.C. 2011).
The Union appeals. Our review of the grant of summary
judgment is de novo, see, e.g., Moore v. Hartman, 571 F.3d 62,
66 (D.C. Cir. 2009), and we must draw all justifiable inferences
in favor of the non-moving party, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). Our review of the denial
of injunctive relief is for abuse of discretion, although it remains
de novo for underlying conclusions of law. See Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir.
2006).
II.
The Fourth Amendment to the Constitution prohibits the
government from violating “[t]he right of the people to be secure
in their persons . . . against unreasonable searches and seizures.”
U.S. CONST. amend. IV. Drug testing of federal employees is a
search subject to the Fourth Amendment reasonableness
requirement. See Von Raab, 489 U.S. at 665. “[A]s a general
matter, warrantless searches are per se unreasonable under the
Fourth Amendment.” City of Ontario v. Quon, 130 S. Ct. 2619,
2630 (2010) (quoting Katz v. United States, 389 U.S. 347, 357
(1967)) (internal quotation marks omitted). Among the “few
specifically established and well-delineated exceptions to that
general rule,” id., is an exception for circumstances in which
“special needs, beyond the normal need for law enforcement,
make the warrant and probable-cause requirement
impracticable,” Vernonia, 515 U.S. at 653 (quoting Griffin v.
Wisconsin, 483 U.S. 868, 873 (1987)) (internal quotation marks
omitted). Even where the government claims “special needs,”
a warrantless search is generally unreasonable unless based on
9
“some quantum of individualized suspicion.” Skinner v. Ry.
Labor Execs.’ Ass’n, 489 U.S. 602, 624 (1989). “[A] search
may be reasonable despite the absence of such suspicion,”
however, “where the privacy interests implicated by the search
are minimal, and where an important governmental interest
furthered by the intrusion would be placed in jeopardy by a
requirement of individualized suspicion.” Id. Accordingly,
where the government invokes “special governmental needs,
beyond the normal need for law enforcement,” a court must
“balance the individual’s privacy expectations against the
government’s interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in
the particular context.” Von Raab, 489 U.S. at 665–66. In
conducting this balancing test, a court “must undertake a
context-specific inquiry, examining closely the competing
private and public interests advanced by the parties.” Chandler,
520 U.S. at 314; see Von Raab, 489 U.S. at 665–66.
The Union does not dispute that the need asserted by the
Secretary — to protect Forest Service Job Corps Center students
from harm caused by the use of illegal drugs by Center
employees — lies beyond the normal need for law enforcement.
It also does not challenge the constitutionality of random testing
of Forest Service Job Corps Center nursing occupations and
employees required to hold a commercial driver’s license, which
include residential and recreational employees. Instead, the
Union contends that the district court improperly weighed and
balanced the relevant interests in upholding the random testing
of all Forest Service Job Corps Center employees regardless of
the requirements or responsibilities of their particular positions.
The Secretary maintains that for the Union to prevail in
such a facial challenge it must show that no set of circumstances
exist under which the policy would be valid, invoking the
standard enunciated in Reno v. Flores, 507 U.S. 292, 301
10
(1993), and citing Skinner, 489 U.S. at 632 n.10, as applying this
standard to Fourth Amendment challenges to drug testing
policies. When assessing the reasonableness of the Fourth
Amendment intrusion by such policies, however, the Supreme
Court has differentiated between job categories designated for
testing, rather than conducting the balancing test more broadly
as the Secretary appears to suggest. See, e.g., Von Raab, 489
U.S. at 677–78. So has this court. See Harmon v. Thornburgh,
878 F.2d 484, 492–93 (D.C. Cir. 1989); Nat’l Fed’n Fed. Emps.
v. Cheney, 884 F.2d 603, 611–12 (D.C. Cir. 1989).5
Furthermore, to the extent the Secretary maintains that the court
should defer to the USDA with regard to “the nature of the Job
Corps program, the extent of any drug problem faced by the
program, and how the needs of the program would be served and
furthered by the challenged random drug testing,” Appellees’
Br. 21, the Secretary relies on cases presenting familiar
principles of judicial deference to reasonable interpretations and
findings under statutes the department administers. See Menkes
v. Dep’t of Homeland Sec., 637 F.3d 319, 329 (D.C. Cir. 2011);
Public Citizen, Inc. v. FAA, 988 F.2d 186, 196–97 (D.C. Cir.
1993). Deference is never blind, in any event, see Am. Fed’n
Gov’t Emps. v. FLRA, 778 F.2d 850, 864 (D.C. Cir. 1985), and
the Secretary bears a burden to establish entitlement to summary
judgment, see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). More particularly, the Supreme Court has made clear
that the constitutional question is distinct from policy questions
involving otherwise constitutional administrative judgments
about how best to operate a program. See, e.g., Von Raab, 489
U.S. at 665; cf. Chandler, 520 U.S. at 317–18.
5
Our dissenting colleague paints with a broad brush without
regard to precedent from the Supreme Court, and this court, on the
particularity of the Fourth Amendment inquiry.
11
A.
The balancing test set forth in Skinner and Von Raab
requires the court, in assessing employees’ privacy interests, to
determine both “the scope of the legitimate expectation of
privacy at issue” and “the character of the intrusion that is
complained of.” Vernonia, 515 U.S. at 658. The court must then
consider the nature of the government interests to be furthered
by the drug testing policy as well as the immediacy of the
government’s concerns regarding those interests and the efficacy
of the policy in addressing those concerns. See id. at 660.
Finally, the court must balance the employees’ privacy interests
against the government’s interests “to determine whether it is
impractical to require a warrant or some level of individualized
suspicion in the particular context.” Von Raab, 489 U.S. at665–66. Thus, even where the government asserts important
interests, it must still demonstrate an immediate threat to those
interests that could not practically be addressed through a
suspicion-based approach in order to justify a suspicionless
search under the Fourth Amendment. See Vernonia, 515 U.S. at662–63.
A substantial body of precedent elucidates the relevant
considerations. The Supreme Court has found “compelling,” in
view of documented problems, the governmental interest in
ensuring public safety in railroad travel, Skinner, 489 U.S. at620–21, 28, 34, the “national interest in self-protection” against
the importation of illegal drugs, and the public interest in
preventing the promotion of potentially judgment-impaired
employees to “positions where they may need to employ deadly
force,” Von Raab, 489 U.S. at 670–71. Central to these
determinations were the magnitude and immediacy of the threats
— the concern that “even a momentary lapse of attention [could]
have disastrous consequences” for human lives and property.
Von Raab, 489 U.S. at 670; see Skinner, 489 U.S. at 628.
12
Similarly, this court has upheld the random drug testing of
employees in “safety-sensitive” positions, such as those
responsible for maintaining and operating trains, see BNSF Ry.
Co. v. Dep’t of Transp., 566 F.3d 200, 206 (D.C. Cir. 2009),
airplanes, see Aeronautical Repair Station Ass’n, Inc. v. FAA,
494 F.3d 161, 174 (D.C. Cir. 2007); Am. Fed’n Gov’t Emps. v.
Skinner, 885 F.2d 884, 892 (D.C. Cir. 1989) (“AFGE”); Cheney,
884 F.2d at 610, and motor vehicles, see Nat’l Treasury Emps.
Union v. Yeutter, 918 F.2d 968, 971–72 (D.C. Cir. 1990);
AFGE, 885 F.2d at 892, as well as those required to carry
firearms in the performance of their duties, see Cheney, 884
F.2d at 612. In the context of hazardous material inspection, this
court concluded that the government’s efforts to ensure that
employees “whose exclusive assigned duties are [] intimately
related to the prevention of public harm [] are certifiably drug-
free,” even by means of random drug testing, were “a reasonable
precaution against the occurrence of the feared harm.” AFGE,
885 F.2d at 891 (emphasis added). Also, in Stigile v. Clinton,
110 F.3d 801 (D.C. Cir. 1997), the court upheld a policy, based
on the government’s interest in ensuring protection of the
President and Vice President of the United States within the
White House security perimeter, authorizing the random drug
testing of employees who worked in the Old Executive Office
Building, which is located adjacent to the White House.
Although the harm that the government was seeking to prevent
was unrelated to the performance of the duties of the economists
for the Office of Management and Budget, the court explained
that the relevant nexus “is that between the risk posed by a drug-
using employee and the evil sought to be prevented by the
testing.” Id. at 805.
Beyond public safety and national security interests, the
Supreme Court has also concluded that the public interest in
deterring drug use by public schoolchildren is “important
enough,” given the risks to their health and safety as well as the
13
disruptive effect on the educational process as a whole, as
weighed against the significantly diminished expectations of
privacy enjoyed by schoolchildren. Vernonia, 515 U.S. at661–62, 64–65; see Board of Educ. v. Earls, 536 U.S. 822, 834
(2002). Upon recounting the demonstrated problem of drug and
alcohol use by student athletes who were the “leaders” of an
aggressive local “drug culture,” which was responsible for
disciplinary actions reaching “epidemic proportions” and which
the school district had been unable to control by other means,
the Court in Vernonia upheld a policy, approved by the students’
parents, requiring random drug testing of the student athletes.
515 U.S. at 649–59, 64–65. In Earls, 536 U.S. at 830, the Court
extended its holding to competitive extracurricular activities
generally, again focusing on the students’ significantly limited
privacy interests in a public school environment and the
“specific evidence of drugs use” by students at the schools, id.
at 834, including drugs found near school facilities and in a
student’s car, id. at 835.
On the other hand, the Supreme Court has instructed, the
merely “symbolic,” and thus insufficiently important, interest in
detecting and deterring drug use by candidates for public office,
who “typically do not perform high-risk, safety-sensitive tasks”
and do not aid drug interdiction efforts, did not warrant intrusion
on their Fourth Amendment rights. Chandler, 520 U.S. at321–22. “Indeed,” the Court explained, “if a need of the ‘set a
good example’ genre were sufficient to overwhelm a Fourth
Amendment objection, then the care [that] Court took to explain
why the needs in Skinner, Von Raab, and Vernonia ranked as
‘special’ wasted many words in entirely unnecessary, perhaps
even misleading, elaborations.” Id. at 322. Similarly, this court
concluded that the governmental concern in the general
“integrity of its workforce” was insufficiently important to
warrant random drug testing encompassing federal prosecutors
who were not specifically “responsible for the enforcement of
14
federal narcotics laws.” Harmon, 878 F.2d at 490–91; see also
Yeutter, 918 F.2d at 974. But in the context of “critical jobs”6 in
the United States Army, this court in Cheney, 884 F.2d at 614,
upheld random testing of drug counselors because the
government had a legitimate interest in “ensuring that its
employees are allegiant to their essential mission” when their
“successful performance of assigned duties may reasonably be
viewed as depending on their abstinence from illicit drug use.”
In short, where the government asserts “special needs” for
intruding on Fourth Amendment rights, as here, the specific
context matters. In demonstrating that the governmental
interests are “important enough to justify the particular search
at hand, in light of other factors that show the search to be
relatively intrusive upon a genuine expectation of privacy,”
Vernonia, 515 U.S. at 661, the Secretary must provide a
foundation for his determination that the requirement of
individualized suspicion is impractical in the Forest Service Job
Corps Center context, see id. at 653, 63–64; see also Chandler,
520 U.S. at 320.
1. Government employees “have a serious and legitimate
privacy interest in not being subject to urinalysis.” Stigile, 110
F.3d at 804; see Von Raab, 489 U.S. at 671. Certain factors,
however, may diminish their reasonable expectations of privacy
at work. Upon consideration of those factors, we conclude the
Forest Service Job Corps Center’ employee’s privacy interests
at issue remain robust.
6
The Department of Defense (“DoD”) Directive identified
“critical jobs” as those “sufficiently critical to the DoD mission or
protection of public safety that screening to detect the presence of
drugs is warranted as a job-related requirement.” Cheney, 884 F.2d at605 n.2.
15
The “‘operational realities of the workplace’ may render
entirely reasonable certain work-related intrusions by
supervisors and co-workers that might be viewed as
unreasonable in other contexts.” Von Raab, 489 U.S. at 671(quoting O’Connor v. Ortega, 480 U.S. 709, 717 (1987)
(plurality opinion)). Acknowledging that “these operational
realities will rarely affect an employee’s expectations of privacy
in the workplace with respect to searches of his person,” the
Supreme Court observed that “certain forms of public
employment may diminish privacy expectations”; “[e]mployees
of the United States Mint, for example, should expect to be
subject to certain routine personal searches when they leave the
workplace every day. Similarly, those who join our military or
intelligence services may . . . also expect intrusive inquiries into
their physical fitness for those special positions.” Id. (internal
citations omitted). This court applied that understanding in
Cheney, 884 F.2d at 613. So too, the Supreme Court suggested,
the successful performance of certain employees’ duties —
those involved in the interdiction of illegal drugs or required to
carry firearms — may “uniquely” depend on particular attributes
of “judgment and dexterity” such that these employees
“reasonably should expect effective inquiry into their fitness and
probity.” Von Raab, 489 U.S. at 672. Importantly, however,
such employees are “[u]nlike most private citizens or
government employees in general,” id., and such operational
realities are not characteristic of government employment, see
O’Connor, 480 U.S. at 717.
The Secretary characterizes as “operational realities” the
asserted facts that Forest Service Job Corps employees “work
with at-risk youth in residential settings” that are “often quite
remote,” and that these employees are responsible for
maintaining the Zero Tolerance Policy, ensuring the students’
safety, and driving students in emergency and other situations.
Appellees’ Br. 32–33. But the Secretary offers no explanation
16
of how these general program features and loosely ascribed staff
responsibilities serve to undermine the reasonable expectations
of privacy held by Job Corps employees not previously subject
to random drug testing. Furthermore, this characterization
consists of contested facts, for the Union proffered evidence not
only that there was no staff drug problem necessitating random
testing, but also that different job categories at the Job Corps
Centers have different levels of responsibility, or none, for
maintaining the Zero Tolerance Policy, ensuring student safety,
and driving students in emergency or other situations. Job
descriptions for many positions in Forest Service Job Corps
Centers’ administrative staff contain no mention of these
responsibilities. And employee declarations indicate that
purchasing agents, for example, bear no responsibility for
maintaining the Zero Tolerance Policy, have never performed
CPR on students, cannot recall providing first aid to students,
and have rarely if ever driven students or staff. Decl. of Lance
A. Hamann ¶¶ 5–8, Oct. 12, 2010; Decl. Jerry D. Case ¶¶ 4–7,
Oct. 12, 2010. Additionally, the National Director
acknowledged that not all Forest Service Job Corps Center
employees are required to have a driver’s license. See Dawson
Decl. ¶ 14. Viewing the evidence in the light most favorable to
the Union, as we must, it is not clear that the Secretary’s
description of the “nature and context” of Forest Service Job
Corps employment accurately portrays the nature and context of
all job categories, and thus it is not clear that the attendant
“operational realities” of the workplace — undeveloped in the
record — serve to diminish employees’ reasonable expectations
of privacy regardless of their positions.
The Secretary suggests that the privacy interests of Job
Corps Center employees are diminished because they were on
notice of the USDA’s intention to subject them to random drug
testing as early as 1996 and the Union was informed of the
decision to bring the Forest Service Job Corps “into
17
compliance” during the most recent collective bargaining
negotiations.7 “[A]n applicant’s knowledge of what will be
required, and when, affects the strength of his or her [privacy]
interest.” Willner v. Thornburgh, 928 F.2d 1185, 1190 (D.C.
Cir. 1991); see Harmon, 878 F.2d at 489 & n.6. But the
USDA’s failure to implement the random drug testing policy for
all Job Corps employees for more than a decade weakens the
import of the 1996 notice. Furthermore, unlike in Von Raab,
see 489 U.S. at 672 n.2; see also Willner, 928 F.2d at 1190, here
the random drug testing policy applies not only to applicants for
certain positions or promotions, but also to incumbent
employees. A Job Corps employee “may decline to be tested
only if she is willing to relinquish a job she already holds.”
Harmon, 878 F.2d at 489; see Aeronautical Repair Station
Ass’n, 494 F.3d at 174; USDA Departmental Regulation No.
4430-792-2, § 6(f).
Of course employees’ expectations of privacy may be
“lessened” where “they occupy positions that require stringent
background checks.” Stigile, 110 F.3d at 804. For most Forest
Service Job Corps positions, applicants’ background checks
include inquiries into their residential, educational, employment,
and military histories, as well as any illegal drug use within the
past year.8 For positions involving the supervision of young
7
The district court noted, see Nat’l Fed’n Fed. Emps.-IAM,
775 F. Supp. 2d at 108 & n.9, that an agency’s decision to designate
positions for drug testing falls within the management rights clause of
the Federal Service Labor-Management Relations Act, 5 U.S.C.
§ 7106(a)(1), and conflicting proposals are therefore non-negotiable.
See U.S. Dep’t of the Interior Minerals Mgmt. Serv. v. FLRA, 969 F.2d
1158, 1162 (D.C. Cir. 1992); Nat’l Ass’n Gov’t Emps., Local R14-9
Union v. U.S. Army, 30 F.L.R.A. 1083, 1086–87 (1988).
8
See OPM, Questionnaire for Non-Sensitive Positions,
available at http://www.opm.gov/forms/pdf_fill/sf85.pdf.
18
people, the background check includes investigation of
applicants’ federal and state criminal histories, see 42 U.S.C.
§ 13041(a)-(b) (2006); FED. R. EV. 201(b)(2), (c)(1); these
investigations are typically completed within two months after
the employee’s entry on duty, see Dawson Suppl. Decl. ¶ 5.
Forest Service Job Corps Center employees are typically
reinvestigated every fifteen years. See id. In the National
Director’s opinion, the background checks of prospective Forest
Service Job Corps employees are “more rigorous” than those for
“most Forest Service employees,” Dawson Decl. ¶ 12,
suggesting that a prospective employees’ reasonable
expectations of privacy may be diminished somewhat. Cf.
Cheney, 884 F.2d at 615 & n.10. Even these background
checks, however, are less “stringent” than those required of Old
Executive Office Building professionals with passes allowing
access to areas frequented by the President and Vice President
of the United States, see Stigile, 110 F.3d at 807 n.2 (Rogers, J.,
concurring), or Justice Department attorney applicants, Willner,
928 F.2d at 1190–91, or members of the Army holding key
positions, see Cheney, 884 F.2d at 612–13, and they are
significantly less stringent than the secret and top secret national
security clearance investigations required of other federal
agency employees, see Hartness v. Bush, 919 F.2d 170, 173
(D.C. Cir. 1990); Harmon, 878 F.2d at 492.
The record thus suggests with regard to the job positions at
issue that the employees’ reasonable expectations of privacy are
somewhat diminished by the pre- and post-employment
background checks they must undergo, and perhaps, although to
a far lesser extent, by decade-old notice of their possible
inclusion in the random drug testing program. But given the
relatively limited scope of their background checks and the
incumbent status of the employees now subjected to random
drug testing, these employees’ reasonable expectations of
privacy remain more robust than the expectations of federal
19
employees in many other positions examined by the Supreme
Court and this court. Although courts have viewed the HHS
Guidelines, see supra note 2, as “significantly minimiz[ing]” the
intrusion upon privacy occasioned by urinalysis, Nat’l Treasury
Emps. Union v. U.S. Customs Serv., 27 F.3d 623, 629 (1994);
see Von Raab, 489 U.S. at 672 n.2, they do not render minimal
the overall intrusion on Job Corps employees’ privacy interests
occasioned by the random drug testing policy. Unlike in Von
Raab, where drug testing occurred only upon application for a
particular position, see Von Raab, 489 U.S. at 661; see also
Willner, 928 F.2d at 1189–90, the testing pursuant to the USDA
policy is random and can occur an unlimited number of times.
See Nagel Decl. ¶ 9. Even assuming this factor “‘would tip the
scales’ only ‘in a particularly close case,’” U.S. Customs, 27
F.3d at 629 (quoting Harmon, 878 F.2d at 489), “[r]andom drug
testing represents a greater threat to an employee’s privacy
interest than does mandatory testing because of the ‘unsettling
show of authority that may be associated with unexpected
intrusions on privacy,’” id. at 629 (quoting Von Raab, 489 U.S.
at 672 n.2).
2. The Secretary states that the drug testing policy serves
two important governmental interests at the Forest Service Job
Corps Centers: maintaining the Zero Tolerance Policy among
students and ensuring student safety. Drug use by Job Corps
employees, the Secretary reasons, could threaten to undermine
the Zero Tolerance Policy because such use “could become
known” to students, and because drug using employees might be
“less likely to report knowledge or suspicion of a student’s drug
use and could even serve as a conduit for drugs in these remote
settings.” Appellees’ Br. at 37–38. Further, the Secretary states,
drug use by Job Corps employees “potentially threatens the
physical safety of every student at these remote sites, . . .
because a drug using employee is necessarily impaired in his or
her ability to function in emergencies.” Id. at 38.
20
Although precedent regarding employees in “safety-
sensitive” positions supports the importance of the Secretary’s
interest in securing the Job Corps students’ safety, see, e.g., Von
Raab, 489 U.S. at 670; AFGE, 885 F.2d at 891, support for the
Secretary’s interest in maintaining the Zero Tolerance Policy by
drug testing of all Job Corps Center employees is more
attenuated. This interest rests upon a connection the Secretary
effectively seeks to forge between the concerns recognized in
Vernonia and Cheney. See Appellees’ Br. 37–39; Mem. in
Supp. Defs.’ Mot. Summ. J. 14, 18–19. In Vernonia, 515 U.S.
at 661–62, the Supreme Court noted the risks of “physical,
psychological, and addictive effects” associated with adolescent
drug use, and risks of immediate physical harm faced by student
athletes during games or practice. In Earls, 536 U.S. at 829–30,
the Court reemphasized the students’ diminished privacy
interests and the schools’ custodial and tutelary responsibilities.
In view of Vernonia and Earls, the Secretary’s interest in
preventing drug use among at-risk youth in a government
program designed to expand their opportunities may be
“important enough” to justify certain searches.9 Yet here, unlike
in Vernonia and Earls, the Secretary seeks to justify the random
drug testing not of Job Corps students, but of an expanded group
of employees at the Forest Service Job Corps Centers. The
governmental interest in the detection and deterrence of drug use
by such employees is thus at a remove from that previously
9
According to a study commissioned by the DOL,
approximately 26 percent of all entering Job Corps students tested
positive on their initial drug tests in 2004 and 2005. See Dawson
Decl. ¶ 7. Directors of three Forest Service Job Corps Centers
reported initial drug tests showing drugs in approximately 15, 18, and
23 percent of students at their respective sites. See Decl. Linda J.
Guzik ¶ 5, Jan. 26, 2011; Decl. Raymond J. Ryan ¶ 5, Jan. 26, 2011;
Decl. Cynthia S. Kopack ¶ 5, Jan. 26, 2011. No comparable evidence
was offered regarding staff drug use.
21
addressed by the Supreme Court. Indeed, in Vernonia, the Court
emphasized that “[c]entral” to its decision was “the fact that the
subjects of the Policy [we]re (1) children, who (2) ha[d] been
committed to the temporary custody of the State as
schoolmaster.” Vernonia, 515 U.S. at 654; see id. at 665.
In an effort to surmount this key distinction, the Secretary
has argued that the success of the Zero Tolerance Policy in
deterring drug use by Job Corps students depends on its
enforcement by Job Corps employees; should these employees
be “unsympathetic” to this mission “because of their own drug
use,” Cheney, 884 F.2d at 614, the aims of the policy would be
thwarted. See Mem. in Supp. Defs.’ Mot. Summ. J. 14. Yet
notwithstanding the important governmental interest identified
in Vernonia and Earls, the Supreme Court did not imply that
protection of this interest would justify random drug testing of
the teachers and other staff at the schools — to the contrary, it
“caution[ed] against the assumption that suspicionless drug
testing will readily pass constitutional muster in other contexts.”
Vernonia, 515 U.S. at 665. The extent to which the Secretary’s
interest in deterring drug use among Job Corps students through
the Zero Tolerance Policy justifies random drug testing of all
staff hinges on whether the Secretary has laid a foundation for
concluding that drug use among Job Corps staff poses a threat
to this interest. See id. at 662–63. In determining the
immediacy of the Secretary’s concerns, the court first looks for
“a demonstrated problem of drug abuse” among the Job Corps
employees in the job categories to be subjected to drug testing
“to clarify — and to substantiate — the precise hazards posed by
such use.” Chandler, 520 U.S. at 319; see Vernonia, 515 U.S.
at 662–63. Absent such a foundation for invoking the “special
needs” exception, the Secretary cannot show that an important
governmental interest is placed in jeopardy and thus adherence
to the requirement of individualized suspicion is impractical.
See Von Raab, 489 U.S. at 665–66; Skinner, 489 U.S. at 624.
22
In support of summary judgment, the Secretary stated as
undisputed facts: The Forest Service Job Corps Centers are
generally located in remote areas; the Centers offer a residential
program in which students live and work on-site; students are
advised of and subject to the Zero Tolerance Policy; any Center
employee can report suspicion of drug use by a student; “[a]
number of employees who do not hold commercial driver’s
licenses are called upon to transport students in the course of
their responsibilities”; and some employees teach welding and
electrical work. Defs.’ Mot. Summ. J. (Statement of Material
Facts 1–2). Notably absent from this statement of facts and the
record is any indication of a serious drug problem among Job
Corps Center staff. The National Director stated in his
declaration that “[d]rug use has been found among [Forest
Service Job Corps] employees in the past, [that] several
employees have been disciplined for drug use in recent years,”
and that “[r]eview of existing Forest Service disciplinary records
show[ed] that eight [] employees have been subject to adverse
actions, with penalties ranging from [fourteen-]day suspensions
to removal, in recent years.” Dawson Decl. ¶ 17. Taking the
declaration at face value, the small number of incidents among
a workforce of several thousand over an unspecified number of
years does not establish a serious problem, much less an
“immediate crisis,” as in Vernonia, 515 U.S. at 663,
necessitating expansion of the random drug testing policy,
compare note 9, supra; nor does the declaration suggest that any
problem has not been satisfactorily addressed in a manner
consistent with the individualized suspicion requirement and
student safety, see King Decl. ¶¶ 11–12.
Also absent from the record is any demonstration of
difficulty in maintaining the Zero Tolerance Policy as a result of
any staff drug use during the fourteen years between the
USDA’s adoption of the Policy and the implementation of
random drug testing for all Forest Service Job Corps Center
23
employees. Cf. Chandler, 520 U.S. at 319. The record indicates
that the DOL, the primary administrator of the federal Job Corps
program, see 29 U.S.C. §§ 2883a, 2887(a), has never required
such drug testing. The absence of such a decision by the DOL
combined with the USDA’s long-delayed action and the absence
of a documented problem belie the conclusion that there is so
serious a staff drug problem at the Forest Service Job Corp
Centers as to present “special needs” requiring suspicionless
intrusion on all employees’ Fourth Amendment rights. The
National Director’s instruction that the “[Forest Service] Job
Corps will come into compliance” with USDA’s drug testing
program made no reference to the governmental concerns
articulated here; rather, it offered the tautological explanation
that “[t]o date the Forest Service Job Corps has not been in full
compliance with this regulation.” Mem. from Larry J. Dawson
to Forest Service Job Corps Center Directors (Aug. 30, 2010).
Apparently neither the USDA nor the Forest Service cited any
incidents leading to the determination that random drug testing
of all Forest Service Job Corps Center employees was necessary,
or any drug use or other statistics to support that determination.
See King Decl. ¶¶ 11–12. The Secretary has thus offered a
solution in search of a problem.
Moreover, even assuming the Secretary’s responsibility for
maintaining the Zero Tolerance Policy and ensuring Job Corps
students’ safety would suffice to whittle down the relaxed
evidentiary standard where “special needs” are invoked, the
Secretary has failed to show, as to newly designated staff, “an
immediate, non-attenuated” nexus between “the risk posed by a
drug-using employee and the evil sought to be prevented by the
testing.” Stigile, 110 F.3d at 805; see Von Raab, 489 U.S. at677–78; Harmon, 878 F.2d at 492–93; Cheney, 884 F.2d at611–12. Those employees whose “exclusive assigned duties are
[] intimately related to” the enforcement of the Zero Tolerance
Policy, AFGE, 885 F.2d at 891 — residential staff — have long
24
been subject to random drug testing. Even assuming that drug
counselors in direct and regular contact with students and are
thus likely “in a position to render harm,” Stigile, 110 F.3d at
805; see Von Raab, 489 U.S. at 671, by undermining the Policy
through their own example or through their lack of commitment
to their counseling and enforcement tasks, see Cheney, 884 F.2d
at 614, the nexus between the danger and the duties of other
positions is far more attenuated. Contrary to the district court’s
findings, see Nat’l Fed’n Fed. Emps.-IAC, 775 F. Supp. 2d at110–11, evidence proffered by the Union reveals that certain
positions have very limited contact with students and bear no
responsibility for maintaining the Policy. “[I]t is not evident that
those occupying these positions are likely to” be in a position to
undermine the Zero Tolerance Policy, and “this apparent
discrepancy raises . . . the question whether the [USDA] has
defined [the] category of [Job Corps Center staff] more broadly
than is necessary to meet [the Secretary’s] purposes.” Von Raab,
489 U.S. at 678.
A similar question of scope arises with regard to Job Corps
employees’ responsibility for securing the students’ safety in
emergencies, for the record fails to indicate that all employees
are likely to be in a position to render the harms feared by the
Secretary. See id.; Harmon, 878 F.2d at 492–93; Cheney, 884
F.2d at 611–12. Although some staff are responsible for
transporting students and required to hold commercial driver’s
licenses (and are already subject to random drug testing under
Department of Transportation regulations), others are not even
required to hold valid driver’s licenses. The Union proffered
evidence that employees in certain positions have very limited
contact with students and so are rarely if ever in a position to
administer CPR or first aid; these employees are thus unlikely to
be “in a position to render harm.” Cf. AFGE, 885 F.2d at 892.
For such categories of employees not previously subject to
random drug testing, “the chain of causation between misconduct
25
and injury is considerably more attenuated.” Harmon, 878 F.2d
at 491. The lack of evidence of a serious drug problem among
Forest Service Job Corps staff coupled with the speculative
nature of the risk identified by the Secretary render the expanded
random drug testing policy unjustified.
To the extent the Secretary maintains that he has a
“legitimate interest in deterring drug use that might affect work
performance, that employees who use drugs off the job risk
performance-impairing addiction, that off-duty drug users may
buy [or sell] drugs at work,” Appellees’ Br. 37–38, such
speculation is, as the court explained in Yeutter, 918 F.2d at 974(emphasis in original), insufficient to justify a Fourth
Amendment intrusion. In Yeutter, the court rejected suspicion-
based testing of off-duty drug use by USDA employees because
the Secretary had not produced sufficient “evidence that might
establish a relationship between off-the-job drug use and job
performance.” Id. Similarly here, unlike in Stigile, 110 F.3d at803–04, the Secretary asserts interests in preventing harms
arising only from employees’ inadequate job performance.
“Absent [] a ‘clear, direct nexus’ between the duties of” all
covered Forest Service Job Corps employees “and the nature of
the feared harm[s], and absent any compelling reason to expect
that drug use will result in misplaced sympathies for their
responsibilities, testing these employees lacks the necessary
causal connection between the employees’ duties and the feared
harm[s].” Cheney, 884 F.2d at 614 (citation omitted).
Additionally, the efficacy of designating all Forest Service
Job Corps Center positions for random testing is dubious
inasmuch as, unlike the policies upheld in Vernonia and Earls,
the expanded application of the USDA policy is at best an
indirect means of detecting and deterring drug use by students.
See Earls, 536 U.S. at 837–38; Vernonia, 515 U.S. at 663. In
Cheney, the court took note of the Army’s assessment of the
26
efficacy of drug screening “in light of its experience from fifteen
years of testing its military personnel,” 884 F.2d at 611, yet
distinguished, much as the Supreme Court did in Von Raab, 489
U.S. at 678, between job positions in concluding that the record
supported the reasonableness of random drug testing for some
but not for others, notwithstanding the Army’s “serious
interests,” Cheney, 884 F.2d at 611–12. Finally, the work setting
of many Forest Service Job Corps Center employees is that of
“traditional office environments,” Von Raab, 489 U.S. at 674;
see, e.g., Suppl. Decl. Lance A. Hamann ¶ 4, Feb. 16, 2011,
where it is “feasible to subject employees and their work product
to . . . day-to-day scrutiny,” Von Raab, 489 U.S. at 674, so the
requirement of individualized suspicion for employees in these
positions is not impractical. See Chandler, 520 U.S. at 321.
3. Upon balancing the employees’ privacy interests against
the Secretary’s interests “to determine whether it is impractical
to require a warrant or some level of individualized suspicion in
the particular context,” Von Raab, 489 U.S. at 665–66, we
conclude that the Secretary has failed to demonstrate “special
needs” justifying random drug testing of all Forest Service Job
Corps Center employees. Although the newly designated
employees’ privacy interests may be somewhat diminished by
their required background checks and the Secretary’s adherence
to the HHS Guidelines in administering the tests, they are not as
diminished as other privacy interests the courts have examined
and remain robust. Conversely, even assuming that subjecting
all Job Corps employees to random drug testing is premised on
important governmental interests, the lack of a foundation for
“special needs” to intrude on their Fourth Amendment rights
significantly undermines these interests. “A demonstrated
problem of drug abuse, while not in all cases necessary to the
validity of a testing regime, would shore up an assertion of
special need for a suspicionless general search program.”
Chandler, 520 U.S. at 319 (citation omitted); see Earls, 536 U.S.
27at 835. The Secretary has made no such showing with regard to
the newly designated positions, and his generalized assertions of
need are contradicted by evidence from the National Director of
the Forest Service Job Corps program; nor has the Secretary
demonstrated the requisite nexus between the stated
governmental interests and all Forest Service Job Corps Center
staff positions.
Accordingly, because the Secretary’s designation of all
Forest Service Job Corps Center employees for random drug
testing under the USDA policy “does not fit within the closely
guarded category of constitutionally permissible suspicionless
searches,” Chandler, 520 U.S. at 309, we reverse the grant of
summary judgment and remand the case to the district court for
proceedings consistent with this opinion. We also reverse the
denial of the Union’s request for a preliminary injunction,
because the denial was based solely on the likelihood of the
Secretary’s success on the merits and the loss of constitutional
protections constitutes irreparable injury. See Mills v. Dist. of
Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009).
KAVANAUGH, Circuit Judge, dissenting: This case
concerns drug testing of government employees who work at
specialized residential schools for at-risk youth. In my view,
Supreme Court precedent and common sense strongly support
this narrowly targeted drug testing program. I would affirm
Judge Howell’s decision for the District Court upholding the
program. I therefore respectfully dissent.
I
Ratified in 1791, the Fourth Amendment prohibits
“unreasonable” government searches and seizures. By
establishing reasonableness as the legal test, the text of the
Fourth Amendment requires judges to engage in a common-
law-like balancing of public and private interests to determine
the constitutionality of particular kinds of searches and
seizures.
Difficult Fourth Amendment issues can arise when the
government, in order to protect the public at large, deploys
new technologies to search or surveil individual citizens. See,
e.g., United States v. Jones, 132 S. Ct. 945 (2012) (GPS);
Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging);
Florida v. Riley, 488 U.S. 445 (1989) (helicopter
surveillance); Katz v. United States, 389 U.S. 347 (1967)
(listening devices).
Drug testing is one such example of a modern technology
used to protect the public from harm. In part because of the
increase in drug-related violent crime during the 1970s and
1980s, and particularly after the 1986 death of Len Bias, the
ravages of drugs became the subject of great public concern
and debate. Around the same time, drug testing technology
became more widely available. Many private entities started
drug testing their employees. Likewise, federal, state, and
local government entities began to drug test in a variety of
2
settings, including government workplaces and public
schools.
Beginning in the late 1980s, the Supreme Court
considered the Fourth Amendment implications of
government-mandated drug testing. The Supreme Court
approved government-mandated drug testing without a
warrant or individualized suspicion when the testing was
motivated by a “special need” beyond the normal need for law
enforcement and the government’s interest in testing
outweighed the intrusion on individual privacy. Applying
that fact-specific balancing test in a series of cases, the
Supreme Court upheld drug testing of certain government
employees, as well as drug testing of public school students
who participate in athletics or other competitive
extracurricular activities. See National Treasury Employees
Union v. Von Raab, 489 U.S. 656 (1989); Skinner v. Railway
Labor Executives’ Ass’n, 489 U.S. 602 (1989); Vernonia
School District 47J v. Acton, 515 U.S. 646 (1995); Board of
Education v. Earls, 536 U.S. 822 (2002); cf. Chandler v.
Miller, 520 U.S. 305 (1997). For its part, this Court upheld
drug testing of government drug counselors; other courts of
appeals similarly approved drug testing of public school
teachers, other public school employees, and public
correctional officers. See National Federation of Federal
Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989); Knox
County Education Ass’n v. Knox County Board of Education,
158 F.3d 361 (6th Cir. 1998); American Federation of Gov’t
Employees v. Roberts, 9 F.3d 1464 (9th Cir. 1993). 1
1
As the case law generally reveals, government-mandated
drug testing of government employees is more likely to be
permitted than government-mandated drug testing of private
citizens. That dichotomy reflects the constitutional tradition that
the government as employer has somewhat more flexibility in
maintaining discipline and control over its own employees than it
3
II
No Supreme Court case has addressed drug testing of
public school teachers or other public school employees. This
case likewise does not require us to resolve that broader
question because this case raises a far narrower issue: drug
testing of public employees at residential public schools for
at-risk youth where many of the students have previously used
drugs. Applying the Fourth Amendment’s reasonableness
standard and the fact-specific balancing test set forth by the
relevant precedents, I would uphold the Department of
Agriculture drug testing program at issue in this case. 2
The government has a strong interest in maintaining this
narrowly targeted drug testing program. This limited program
requires drug tests only for government employees who work
at specialized residential schools for at-risk youth. 3 These
residential schools bring economically disadvantaged and at-
risk youth from troubled environments, house them in remote
rural locations, and train them in various vocations. The
students who attend the schools range in age from 16 to 24
and often have not finished high school. Many of the students
have previously used drugs. These schools provide a chance
– sometimes a last chance – for the students to straighten out
their lives.
does in regulating private entities and individuals. See generally
Von Raab, 489 U.S. at 671; O’Connor v. Ortega, 480 U.S. 709,
717-18 (1987) (plurality opinion); Pickering v. Board of Education,
391 U.S. 563, 568 (1968).
2
The only question in this case concerns application of the
balancing test. The government has articulated a special need for
this drug testing program beyond the normal need for law
enforcement. See, e.g., Von Raab, 489 U.S. at 665-66.
3
The schools are formally called Job Corps Civilian
Conservation Centers, sometimes abbreviated as JCCCCs.
4
At these specialized residential schools, the potential for
drug problems is obvious. After all, any residential school or
camp with young people poses a risk of mischief ranging
from the innocuous to the extremely dangerous. The hazards
are magnified when, as here, the residents at the school are at-
risk youth who have a history of drug use. Indeed, the United
States Senate conducted an investigation in the 1990s and
discovered rampant drug problems at these institutions.
A residential school program for at-risk youth who have a
history of drug problems can turn south quickly if the schools
do not maintain some level of discipline. To maintain
discipline, the schools must ensure that the employees who
work there do not themselves become part of the problem.
That is especially true when, as here, the employees are one
of the few possible conduits for drugs to enter the schools.
Put simply, the Department of Agriculture has a strong and
indeed compelling interest in maintaining a drug-free
workforce at these specialized residential schools for at-risk
youth. 4
Moreover, on the individual privacy side of the ledger, it
bears mention that this particular drug testing program –
while no doubt intrusive and annoying like all drug testing –
4
The majority opinion notes that not many employees have
been caught using drugs. But the Supreme Court has cautioned that
“[d]etecting drug impairment on the part of employees can be a
difficult task.” Von Raab, 489 U.S. at 674. So a low detection rate
without drug testing certainly does not itself mean that there is little
drug use among the employees. To assume otherwise would be
naive. Moreover, the Supreme Court has explained that even a few
drug-using employees can pose problems in certain workplaces.
Therefore, the “mere circumstance that all but a few of the
employees tested are entirely innocent of wrongdoing does not
impugn the program’s validity.” Id.5
entails only a urine sample produced in private. It does not
require observation or a physically invasive procedure. Cf.
Florence v. Board of Chosen Freeholders of County of
Burlington, 132 S. Ct. 1510 (2012); Terry v. Ohio, 392 U.S. 1(1968); Schmerber v. California, 384 U.S. 757 (1966); BNSF
Railway Co. v. Dep’t of Transportation, 566 F.3d 200 (D.C.
Cir. 2009). In addition, this drug testing program reveals only
whether the employee has used drugs; it does not disclose
other private information – a fact the Supreme Court has
noted in upholding other drug testing policies. See Von Raab,
489 U.S. at 673 n.2; cf. Jones, 132 S. Ct. at 954 (Sotomayor,
J., concurring); id. at 957 (Alito, J., concurring in judgment).
Applying the fact-specific balancing test set forth by the
relevant precedents, I would conclude that the government’s
strong interest in ensuring a drug-free workforce at these
schools outweighs the infringement of individual privacy
associated with this drug testing program. In residential
schools for at-risk youth, many of whom have previously used
drugs, it seems eminently sensible to implement a narrowly
targeted drug testing program for the schools’ employees. In
these limited circumstances, it is reasonable to test; indeed, it
would seem negligent not to test.
I therefore would affirm Judge Howell’s decision for the
District Court upholding this drug testing program. Judge
Howell summarized the issue persuasively:
Based upon the Court’s findings that all JCCCC
employees must help maintain a drug-free environment
for JCCCC students[;] their role as counselors, educators
and adult supervisors to youth prone to drug use[;] and
the employees’ responsibilities in maintaining a safe
environment for residential students located in remote
parts of the country, the Court concludes that the
6
government has a compelling interest in testing these
employees to ensure that they do not compromise the
Jobs Corps’ overall educational program and do not put
students at risk. . . .
The defendants’ interests in testing JCCCC
employees are not merely symbolic, but are directed
toward maintaining the effectiveness of the JCCCC
program and ensuring the safety of students located in
remote rural sites across the country. This rationale
overrides the employees’ expectation of privacy, which is
already diminished considering the nature of their
employment and the regulations already imposed upon
them.
National Federation of Federal Employees-IAM v. Vilsack,
775 F. Supp. 2d 91, 113 (D.D.C. 2011).
***
I would rule that this narrowly targeted drug testing
program is reasonable under the Fourth Amendment. I
respectfully dissent.