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


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  •  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. at
    665–66. 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. at
    662–63.
    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. at
    620–21, 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. at
    661–62, 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. at
    321–22. “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 at
    605 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. at
    677–78; Harmon, 
    878 F.2d at
    492–93; Cheney, 
    884 F.2d at
    611–12. 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 at
    110–11, 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 at
    803–04, 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. 27
    at 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.
    

Document Info

Docket Number: 11-5135

Citation Numbers: 401 U.S. App. D.C. 152, 681 F.3d 483, 33 I.E.R. Cas. (BNA) 1702, 2012 U.S. App. LEXIS 11605, 2012 WL 2053595

Judges: Rogers, Kavanaugh, Ginsburg

Filed Date: 6/8/2012

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (33)

National Federation of Federal Employees-IAM v. Vilsack , 775 F. Supp. 2d 91 ( 2011 )

City of Ontario v. Quon , 130 S. Ct. 2619 ( 2010 )

Griffin v. Wisconsin , 107 S. Ct. 3164 ( 1987 )

Florida v. Riley , 109 S. Ct. 693 ( 1989 )

Skinner v. Railway Labor Executives' Assn. , 109 S. Ct. 1402 ( 1989 )

United States v. Jones , 132 S. Ct. 945 ( 2012 )

American Federation of Government Employees, Afl-Cio v. ... , 885 F.2d 884 ( 1989 )

american-federation-of-government-employees-afl-cio-benita-mays-american , 9 F.3d 1464 ( 1993 )

National Treasury Employees Union v. Von Raab , 109 S. Ct. 1384 ( 1989 )

Reno v. Flores , 113 S. Ct. 1439 ( 1993 )

Vernonia School District 47J v. Acton , 115 S. Ct. 2386 ( 1995 )

Chandler v. Miller , 117 S. Ct. 1295 ( 1997 )

Kyllo v. United States , 121 S. Ct. 2038 ( 2001 )

Board of Education of Independent School District No. 92 of ... , 122 S. Ct. 2559 ( 2002 )

Mark B. Harmon v. Richard L. Thornburgh, Attorney General ... , 878 F.2d 484 ( 1989 )

Chaplaincy of Full Gospel Churches v. England , 454 F.3d 290 ( 2006 )

Knox County Education Association v. Knox County Board of ... , 158 F.3d 361 ( 1998 )

Moore v. Hartman , 571 F.3d 62 ( 2009 )

Anderson v. Liberty Lobby, Inc. , 106 S. Ct. 2505 ( 1986 )

Celotex Corp. v. Catrett, Administratrix of the Estate of ... , 106 S. Ct. 2548 ( 1986 )

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