Nat'l Fed'n of Fed. Emps.–IAM v. Vilsack

• Decision Date: 08 June 2012
• Docket Number: No. 11–5135.,11–5135.
• Citation: 681 F.3d 483,33 IER Cases 1702
• Parties: 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.
• Court: U.S. Court of Appeals — District of Columbia Circuit

681 F.3d 483

33 IER Cases 1702

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.

No. 11–5135.

United States Court of Appeals,

District of Columbia Circuit.

Argued Jan. 23, 2012.

Decided June 8, 2012.

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.

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, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995); Nat'l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665–66, 109 S.Ct. 1384, 103 L.Ed.2d 685 (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, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). Accordingly, we reverse and remand the case for proceedings consistent with this opinion.

I.

The Department of Labor (“DOL”) administers the Job Corps program at approximately 124 residential and nonresidential centers across the United States. See29 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; see29 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 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 approximatelyevery fifteen years. See Dawson Suppl. Decl. 115.

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 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”). SeeExecutive Order No. 12,564 § 4(d), 51 Fed. Reg. 32,889, 32,891 (Sept. 15, 1986), reprinted in5 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, seeS.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. 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 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 on the employees' privacy interests and Fourth Amendment rights, and it denied the Union's request for an injunction. Nat'l Fed'n of Fed. Emps.–IAM 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 109 S.Ct. 1384. “[A]s a...