National Treasury Employees Union v. Von Raab, No. 86-3833

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: ALVIN B. RUBIN; ROBERT MADDEN HILL
• Citation: 816 F.2d 170
• Parties: 43 Empl. Prac. Dec. P 37,096, 55 USLW 2595, 2 Indiv.Empl.Rts.Cas. 15 NATIONAL TREASURY EMPLOYEES UNION and Argent Acosta, President, Chapter 168, National Treasury Employees Union, Plaintiffs-Appellees, v. William Von RAAB, Commissioner, United States Customs Service, Defendant- Appellant.
• Decision Date: 22 April 1987
• Docket Number: No. 86-3833

Page 170

816 F.2d 170 43 Empl. Prac. Dec. P 37,096, 55 USLW 2595,
2 Indiv.Empl.Rts.Cas. 15 NATIONAL TREASURY EMPLOYEES UNION and Argent Acosta,
President, Chapter 168, National Treasury
Employees Union, Plaintiffs-Appellees,
v.
William Von RAAB, Commissioner, United States Customs
Service, Defendant- Appellant. No. 86-3833. United States Court of Appeals,
Fifth Circuit. April 22, 1987.

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Richard K. Willard, Asst. Atty. Gen., James M. Spears, Robert J. Cynkar, Deputy Asst. Attys. Gen., Robert V. Zener, Brook Hedge, Richard Greenberg, Brian Kennedy, Robert Chestnut, Leonard Schaitman, Dept. of Justice, Appellate Staff, Civil Div., Washington, D.C., for defendant-appellant.

Joyce A. Foreman, Sacramento, Cal., amicus curiae, for Foreman.

Nelson G. Dong, Terence M. Kelly, Palo Alto, Cal., amicus curiae, for PharmChem Laboratories, Inc.

Lois G. Williams, Charles C. Garretson, Elaine D. Kaplan, Nat. Treasury Employees Union, Washington, D.C., for plaintiffs-appellees.

William P. Quigley, ACLU, David C. Whitmore, New Orleans, La., amicus curiae, for ACLU.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, HILL, and EDWARDS, ^* Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A union challenges a program adopted by the Customs Service requiring employees seeking transfer to certain sensitive jobs to submit to urine testing for drug use. The prevention of illicit drug use has become a major national concern. Congress has appropriated unprecedented sums to interdict drug smuggling, the President has issued an executive order requiring all federal agencies to adopt programs that will eliminate drugs from the federal workplace, ¹ and hundreds of private employers, including more than a quarter of the Fortune 500 companies, have instituted some kind of program for urinalysis

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testing of employees. ² Employee drug use costs the United States an estimated $33 billion per year. ³ The seriousness of the problem has led to efforts to combat drug use by the use of novel methods, such as compulsory testing. Adoption of these methods, however, has created concern that constitutional rights may be abridged in the process. ⁴ Even the war on crime must be fought by constitutional methods for the Constitution protects the guilty as well as the innocent and proscribes condemned means even when they are used for laudable ends. Considering all of the circumstances involved, we hold that the Customs Service testing program constitutes a search within the meaning of the fourth amendment, but, because of the strong governmental interest in employing individuals for key positions in drug enforcement who themselves are not drug users and the limited intrusiveness of this particular program, it is reasonable and, therefore, is not unconstitutional.

I.

For some time, the United States Customs Service has viewed the interdiction of narcotics smuggling as its top priority and has forbidden its employees to use the very drugs they are employed to intercept. In July, 1986, pursuant to a Directive by its Commissioner, the Service implemented a urinalysis drug screening program for applicants tentatively selected to engage in three kinds of jobs: positions that either directly involve the interdiction of illicit drugs, require the carrying of a firearm, or involve access to classified information. The covered positions start with top administrative posts and include criminal investigators, intelligence officers, customs inspectors, and even those clerical workers assigned to the tasks described. At first, the Customs Service tested only applicants for initial employment by the Service; after two months, the program was extended to current employees seeking a transfer to a covered position. Because no applicant for initial employment is a party to this suit, we consider the constitutionality of the program only as it applies to current employees seeking a transfer.

When it instituted the program, the Customs Service emphasized its "special responsibility to insure [a drug-free] workforce." The Service is charged with "stemming the tide of illicit drugs entering [the United States]." Consequently, "Customs employees, more than any other Federal workers, are routinely exposed to the vast network of organized crime that is inextricably tied to illegal drug use.... as well as [to] illegal substances themselves." Illegal drug use "undermines ... the integrity of the Service," and, because illicit drugs are so expensive, drug users may be particularly susceptible to offers of bribes by smugglers.

The Customs Service did not attempt to justify drug screening on the ground that it suspected a significant level of drug use among its employees. Indeed, the Commissioner has described the Service as "largely drug free," and, in five months of testing, none of the tests of current employees seeking a job change was positive. Even among applicants not already employed, only one person's test was positive.

Under the drug-testing program, an employee tentatively selected for transfer to a covered position is advised in writing that the appointment is contingent upon successful completion of drug screening. At least five days after the Service sends the employee this notification, it schedules a time for his urinalysis. If the employee then withdraws his application, he may retain his present position, and no adverse inference is drawn from his decision not to pursue his application. At the test site, an observer gives the employee a form on which he may list any medications he has taken or any other legitimate reasons for his having been exposed to potentially illicit

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drugs in the preceding thirty days. The form is sealed in an envelope that will not be opened unless the urine test is positive.

After the employee surrenders his outer garments and personal belongings, the observer gives the employee a bottle for the specimen. The employee then enters a restroom stall and produces the urine sample. In order to prevent tampering, the observer remains in the restroom to listen for the normal sounds of urination and to collect the sample immediately after urination, but the observer does not visually observe the act of urination. The employee then leaves the stall and presents the bottle containing the specimen to the observer. To ensure that a previously collected sample has not been proffered, the observer is instructed to reject an unusually hot or cold sample.

The Service uses strict chain-of-custody procedures after collection. The observer applies a tamper-proof seal to the bottle, the employee initials a label affixed to the seal and signs a chain-of-custody form, and the observer signifies that the procedures have been correctly followed. The observer then seals the sample in a bag together with other samples and mails the bag to a laboratory where both a tracking system and chain-of-custody record are maintained.

Laboratory employees test the samples for marijuana, cocaine, opiates, amphetamines, and phencyclidine (PCP). Initially, all samples are screened by the enzyme-multiplied-immunoassay technique (EMIT). Because EMIT yields a significant rate of positive results even in the absence of drug use, all positive samples are then screened by gas chromatography/mass spectrometry (GC/MS). Both parties agree that GC/MS provides a highly accurate test for the presence of drugs, assuming proper handling, storage, and testing techniques. If the GC/MS test is positive, the employee may designate a laboratory to test the original sample independently. Because EMIT will generally report the test for drug use as negative when five days have elapsed between the last use of drugs and the testing date, the test may fail to detect the prior use of drugs by persons who have abstained for five days.

The district court permanently enjoined all drug testing, both of employees and applicants for employment, 649 F.Supp. 380 (1986). It characterized the program as a search and seizure that violates legitimate expectations of privacy in the absence of probable cause or reasonable suspicion. Consequently, it held the testing unconstitutional under the fourth amendment. Although the issues were not raised by the union, the court also found that the plan violated the privilege against self-incrimination, penumbral constitutional rights of privacy, and, because of its unreliability, the due process clause.

II.

The fourth amendment states

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated....

As the Supreme Court recently reiterated in Winston v. Lee, ⁵ " 'the overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.' " ⁶ The values of individual privacy and dignity are " 'basic to a free society,' " ⁷ and the fourth amendment protects these values by recognizing the "individual's legitimate expectations that in certain places and at certain times he has 'the right to be let alone--the most comprehensive of rights and the right most valued by civilized men.' " ⁸

The amendment explicitly protects against two different types of governmental

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invasion: searches and seizures. A search occurs when the government infringes "an expectation of privacy that society is prepared to consider reasonable." ⁹ Seizure of a person occurs when the government meaningfully interferes with his liberty, ¹⁰ and seizure of property occurs when the government meaningfully interferes with an individual's possessory interests in property. ¹¹

Not all invasions of privacy or interferences with liberty or property, then, are searches or seizures. Before the infringement can be labeled either "search" or "seizure," in the sense in which those words are used in the fourth amendment, the government action must be unreasonable or constitute a...