928 F.2d 1185 (D.C. Cir. 1991), 90-5156, Willner v. Thornburgh

Docket Nº:90-5156.
Citation:928 F.2d 1185
Party Name:Carl WILLNER, Appellee, v. Richard L. THORNBURGH, et al., Appellants.
Case Date:March 29, 1991
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1185

928 F.2d 1185 (D.C. Cir. 1991)

Carl WILLNER, Appellee,


Richard L. THORNBURGH, et al., Appellants.

No. 90-5156.

United States Court of Appeals, District of Columbia Circuit.

March 29, 1991

Rehearing Denied July 5, 1991.

Argued Oct. 11, 1990.

Page 1186

Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-0535).

Stephen H. Sachs, Baltimore, Md., with whom Stephen M. Cutler and Gail C. Bernstein, Arthur B. Spitzer and Elizabeth Symonds, Washington, D.C., were on the brief, for appellee.

Robert V. Zener, Atty., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Jay B. Stephens, Washington, D.C., U.S. Atty., were on the brief, for appellants.


Opinion for the Court filed by Circuit Judge RANDOLPH.

Dissenting opinion filed by Circuit Judge HENDERSON.

RANDOLPH, Circuit Judge:

This appeal adds to the list of constitutional challenges to federal drug-testing programs established pursuant to Executive Order No. 12,564, 51 Fed.Reg. 32,889 (1986). Since the Supreme Court's decision in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), which involved a portion of the Customs Service's program, we have ruled on aspects of the drug-testing programs of the Executive Office of the President (Hartness v. Bush, 919 F.2d 170 (D.C.Cir.1990)); the Department of Agriculture (National Treasury Employees Union v. Yeutter, 918 F.2d 968 (D.C.Cir.1990)); the Department of Transportation (American Federation of Government Employees v. Skinner, 885 F.2d 884 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990)); the Department of the Army (National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990)); and the Department of Justice (Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990)).

Each of our decisions rendered in the wake of Von Raab concerned federal employees who were, as a condition of employment, required to submit urine specimens for testing without any suspicion they were using drugs, and who were selected for testing on a random basis. This case differs from the rest in several respects, the significance of which is in dispute. The plaintiff here is an applicant for government employment. Rather than being selected at random, every applicant must undergo a urine test before being hired for the position he seeks.

Early in 1990, Carl Willner, an attorney, submitted a resume to the Antitrust Division of the Department of Justice in Washington, D.C. After several interviews, he

Page 1187

received and accepted a conditional offer to join the Antitrust Division as a trial attorney. In connection with his employment application, Mr. Willner completed an extensive form setting forth detailed information about himself. The Federal Bureau of Investigation then conducted an investigation. On the form, Mr. Willner denied having used marijuana, cocaine, narcotics, hallucinogenics or other illegal drugs during the previous five years. He refused, however, to comply with the Department's request that he provide a urine sample.

The Department of Justice drug-testing plan requires all persons tentatively selected for employment in the Department's Offices, Boards and Divisions to provide a urine sample for testing. Applicants are notified at least forty-eight hours in advance of the time and place for the test. If they fail to show up or refuse to provide a urine sample, they are disqualified from further consideration for the job. If the chemical test of their sample is positive, they will not be offered the position and may not reapply for six months. The chemical analysis is designed to detect use of cocaine, marijuana, amphetamines, opiates and phencyclidine, and is the same as that described in American Federation of Government Employees, 885 F.2d at 887-88; National Federation of Federal Employees, 884 F.2d at 606; and Harmon, 878 F.2d at 486.

Before applying to the Antitrust Division, Mr. Willner knew of the Department's drug-testing program and of its requirement that all individuals tentatively selected for employment must undergo urinalysis. While in private practice, Mr. Willner represented the plaintiffs in Harmon v. Thornburgh, the first of our drug-testing decisions issued after Von Raab. Harmon sustained random testing of Department of Justice employees having top secret security clearances, but held that suspicionless urinalysis of other Justice Department personnel violated the Fourth Amendment unless those individuals were engaged in drug prosecutions. In view of Harmon, the Justice Department could not require urine tests of attorneys already holding the position Mr. Willner sought, unless they were suspected of drug use.

The district court framed the question as: "whether, between a current Antitrust Division attorney and an applicant for such a position, there is a constitutional distinction that would render the testing of the latter permissible under the Fourth Amendment" (Memorandum of District Court, May 15, 1990, at 4) 738 F.Supp. 1. The court found no such distinction and concluded that the government's interests in requiring the test were the same as those Harmon rejected as insufficient. The court therefore permanently enjoined the Department of Justice from testing applicants for positions when employees occupying those positions could not be tested.


Von Raab, 109 S.Ct. at 1390, and its companion case, Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989), held that the government's collection and testing of urine samples from employees according to the procedures outlined in those decisions invaded "reasonable expectations of privacy" and were therefore Fourth Amendment "searches." Such searches, even if conducted without probable cause or suspicion of drug use, do not necessarily infringe upon the Fourth Amendment's "right of the people to be secure in their persons ... against unreasonable searches...." Von Raab ruled that "where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to 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." 109 S.Ct. at 1390 (emphasis added).

Von Raab's balancing test is inherently, and doubtless intentionally, imprecise. The Court did not purport to list all of the factors that should be weighed or to identify which factors should be considered more weighty than others. See Harmon,

Page 1188

878 F.2d at 488-89. Nonetheless, balance we must. The condition making it necessary to do so--that the "Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement" (Von Raab, 109 S.Ct. at 1390)--is satisfied in this case. Railway Labor Executives, 109 S.Ct. at 1414, on which Von Raab relied in formulating the standard just quoted, stated that the government's interest in the "operation of a government office"--here the Department of Justice--presents such "special needs." 109 S.Ct. at 1390. Furthermore, the Justice Department does not test applicants for law enforcement purposes; the test results are not distributed and cannot be used as evidence in a criminal trial. Exec.Order No. 12,564, 51 Fed.Reg. at 32,892. See also Von Raab, 109 S.Ct. at 1390-91.

In our other decisions concerning random drug testing of incumbents, the balance we struck turned to a large extent on the nature of the employee's position. When the job involved drug enforcement or when the employee's drug use might endanger others, for example, we have recognized that the government's interests are sufficiently strong to allow random testing. Harmon, 878 F.2d at 490-91; National Treasury Employees Union, 918 F.2d at 972; American Federation of Government Employees, 885 F.2d at 891-92; National Federation of Federal Employees, 884 F.2d at 612, 613. The job Mr. Willner sought fell within neither category. But that is neither the beginning nor the end of our inquiry. The protections of the Fourth Amendment are graduated in proportion to the privacy interests affected. Decreasing levels of intrusiveness require decreasing levels of justification. If the reasonable privacy expectations of applicants are less than those of employees and if the testing procedure for applicants is itself unintrusive, the government is not required to demonstrate as high a degree of justification as it must to conduct random testing of those already employed.


We shall deal first with the extent of privacy interests applicants such as Mr. Willner possess with respect to urine testing. In other contexts, when "the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search" (Camara v. Municipal Court, 387 U.S. 523, 533, 87 S.Ct. 1727, 1733, 18 L.Ed.2d 930 (1967)), the Fourth Amendment does not require a warrant. See Griffin v. Wisconsin, 483 U.S. 868, 873-74, 107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987); New Jersey v. T.L.O., 469 U.S. 325, 340, 105 S.Ct. 733, 742, 83 L.Ed.2d 720 (1985); O'Connor v. Ortega, 480 U.S. 709, 725-26, 107 S.Ct. 1492, 1501-02, 94 L.Ed.2d 714 (1987) (plurality opinion). When the "privacy interests implicated by the search are minimal," the Court has recognized, as it did in Von Raab and Railway Labor Executives, that a warrantless search may be reasonable even in the absence of suspicion of illegal conduct. T.L.O., 469 U.S....

To continue reading