NATIONAL TREASURY EMPLOYEES UNION, ET AL., PETITIONERS V. WILLIAM VON RAAB, COMMISSIONER, UNITED STATES CUSTOMS SERVICE No. 86-1879 In the Supreme Court of the United States October Term, 1987 On Petition for a Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit Brief for the Respondent in Opposition TABLE OF CONTENTS Opinions below Jurisdiction Question presented Statement Argument Conclusion OPINIONS BELOW The opinion of the court of appeals (Pet. App. 1a-27a) is not yet reported. The opinion of the court of appeals on the government's motion for a stay pending appeal (Pet. App. 29a-39a) is reported at 808 F.2d 1057. The opinion of the district court (Pet. App. 40a-60a) is reported at 649 F. Supp. 380. JURISDICTION The judgment of the court of appeals was entered on April 22, 1987. The petition for a writ of certiorari was filed on May 27, 1987. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the Customs Service's drug-testing program, which covers employees who apply for certain jobs in which they would be involved in the interdiction of drug smuggling, is valid under the Fourth Amendment. STATEMENT Petitioners, a federal employees' union and a union officer, brought this suit to challenge a program adopted by the United States Customs Service under which persons tentatively selected for certain positions in the Service must be tested for use of illegal drugs before they are hired for the designated jobs. The district court enjoined the program as a violation of the Fourth Amendment, on the ground that it does not require reasonable suspicion of drug use by each person tested. The court of appeals reversed, holding that reasonable suspicion of the person being tested is not an absolute requirement under the Fourth Amendment and that, in the particular circumstances of this case, the Fourth Amendment standard of reasonableness is met. 1. The Customs Service's drug-testing program requires testing of any individual tentatively selected for a job that (1) directly involves drug interdiction, (2) requires the carrying of firearms, or (3) involves access to classified information (which, in the case of the Customs Service, typically means information on drug interdiction tactics and plans). /1/ In announcing the program, the Commissioner of Customs stated his belief that Customs is "'largely drugfree'" (Pet. App. 4a). He also stated, however, that Customs employees, by the nature of their jobs, are "'routinely exposed to the vast network of organized crime that is inextricably tied to illegal drug use'" (id. at 3a). In the past, Customs agents have been fired for taking bribes, and an employee's use of illegal drugs would increase the danger of his being susceptible to bribery or blackmail (id. at 13a). Moreover, as Congress and the Customs Service have recognized, drug use and drug smuggling are serious national problems. /2/ Under the Customs program, an individual who applies for one of the covered positions receives advance notice of the test. The individual provides a urine sample behind the closed door of a stall, with the person administering the test /3/ taking precautions to prevent adulteration or substitution of the sample (see Pet. App. 4a). Thereafter, strict chain-of-custody procedures are followed. Tamper-proof seals are applied; the applicant initials the bottle; and the sample is sealed in a bag and mailed to a laboratory, where a tracking system is maintained for each sample (id. at 4a-5a). A quality assurance program intermingles blind samples with specimen samples (id. at 21a). Quality assurance reports must be made available to the union. If the laboratory has been making mistakes on the blind samples, the union (and presumably therefore affected employees ) can learn of the errors. /4/ Each sample is initially tested by the enzyme-multiplied-immunoassay (EMIT) technique. Any sample that tests positive is then tested by gas chromatography/mass spectrometry (GC/MS). This technique is conceded to be essentially error-free, assuming that the right sample is tested and the proper testing techniques followed (Pet. App. 5a). No sample is considered to be positive unless it is positive on the GC/MS test. Because some lawful medications produce a positive result on the tests, the applicant is asked (but not required) to fill out a form listing medications. The form is placed in a sealed envelope and is not opened unless the urine test is positive (Pet. App. 4a). In that event, the information on the form is used to help determine whether the positive result may have a legitimate explanation. 2. The district court held the Customs Service's program unconstitutional on numerous grounds (Pet. App. 40a-60a). The court first concluded that the plaintiff union had standing, that venue was proper, and that it had jurisdiction notwithstanding the remedial procedures provided by the Civil Service Reform Act. Id. at 42a-50a (citing 5 U.S.C. 1101 et seq.). The court then concluded that the drug-testing program deprived job applicants of their Fourth Amendment right to be free from unreasonable searches and seizures, their Fifth Amendment privilege against self-incrimination, their due process rights, and their "penumbral" constitutional privacy rights (id. at 50a-60a). The court enjoined the drug-testing program, forbidding the Customs Service to require drug tests of any applicants for the covered positions (id. at 61a-62a). The court of appeals reversed (Pet. App. 1a-27a). The court addressed the constitutional challenges only insofar as the drug-testing program applied to current Customs Service employees who apply for the covered positions; it reversed the district court judgment as applied to outside job applicants for the separate reason that they were not parties to the case (id. at 3a, 21a; Pet. 6 n.9). On the merits, the court noted that petitioners did not seek to defend the district court's judgment on privacy-rights grounds (Pet. App. 20a), and the court had no difficulty holding that the drug-testing program did not involve compelled self-incrimination (id. at 19a-20a) and was not so unreliable as to violate job applicants' due process rights (id. at 21a). The court also ruled, in the only holding that petitioners challenge here, that the Customs Service's drug-testing program is valid under the Fourth Amendment. The court of appeals agreed with petitioners that the drug-testing program, by requiring an employee to submit a urine sample and testing the sample for evidence of drug use, effects a search within the meaning of the Fourth Amendment (Pet. App. 6a-9a). The court held, however, that the program is reasonable and therefore constitutional. The court noted that the intrusiveness of the search is limited; official discretion plays no role in determining who takes the test; detecting and preventing drug use by Customs employees serve the strong public interests in promoting integrity, effectiveness, and safety in the Customs workforce, which is involved in the interdiction of drug smuggling; urine samples are taken in as private a place as possible (a restroom); only persons who voluntarily apply for covered positions must take the test; the government requires the test in its role as an employer, and the test is a reasonable condition of employment in the particular positions covered by the program; the program was adopted solely for administrative, not law-enforcement, purposes; as with a heavily regulated industry, the job-relatedness of the testing program diminishes employees' reasonable expectations of privacy; there is no fully adequate alternative to drug testing for employees who are placed in sensitive positions for the first time; and there is no good reason to think the drug-testing program will be ineffective in detecting drug users or deterring their application for sensitive jobs (id. at 11a-19a). Considering "the totality of circumstances" and "weighting all of the factors" (id. at 11a), the court of appeals held that individualized suspicion is not required in this setting and that "the Customs Service program for testing employees who seek a transfer to sensitive positions is not unreasonable" (id. at 19a). On May 12, 1987, the court of appeals denied petitioners' request for a stay and ordered immediate issuance of the mandate (Pet. App. 28a). On June 1, 1987, this Court denied petitioners' application for a stay, Justice Brennan dissenting (No. A-847). ARGUMENT Petitioners challenge the court of appeals' holding that the Customs Service's drug-testing program, as applied to current employees who apply for covered positions, is reasonable and hence valid under the Fourth Amendment. /5/ That holding is correct and does not conflict with any decision of this Court or of another court of appeals. Review by this Court is unwarranted. /6/ 1. Petitioners apparently concede (Pet. i, 18-27) that the Fourth Amendment does not always bar drug testing of government employees and job applicants without individualized suspicion, regardless of the circumstances. That concession is demanded by this Court's decisions. The Court has often stated that what is reasonable under the Fourth Amendment varies with the context of the search and that the probable cause and warrant requirements that generally apply in the law-enforcement setting are not to be mechanically transposed into other settings. See, e.g., Griffin v. Wisconsin, No. 86-5324 (June 26, 1987), slip op. 4; United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985); Bell v. Wolfish, 441 U.S. 520, 559 (1979). Rather, determining the appropriate standard in a particular context requires assessing all the relevant circumstances and "balanc(ing) the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703 (1983). See also O'Connor v. Ortega, No. 85-530 (Mar. 31, 1987), slip op. 9 (plurality opinion); United States v. Montoya de Hernandez, 473 U.S. 579, 588 (1983). Moreover, at least where the search is conducted for administrative or regulatory as opposed to law-enforcement purposes, and there are reasonable constraints on official discretion to determine who is subject to the search, there is "no irreducible requirement" of individualized suspicion. United States v. Martinez-Fuerte, 428 U.S. 543, 560-561 (1976). See New Jersey v. T.L.O., 469 U.S. at 342 n.8; Delaware v. Prouse, 440 U.S. 648, 654-655 (1979). See also New York v. Burger, No. 86-80 (June 19, 1987), slip op. 7-11; Donovan v. Dewey, 452 U.S. 594, 599 (1981); United States v. Biswell, 406 U.S. 311, 316 (1972); Camara v. Municipal Court, 387 U.S. 523, 534-539 (1967). The question presented in this case, therefore, is whether the Customs Service's program is reasonable in the particular circumstances. The court of appeals correctly held that it is. /7/ From the perspective of an employee applying for a sensitive position, it is noteworthy, first, that advance notice of the drug test is given. More important, the testing of bodily fluids required by the Customs Service's program involves procedures that are not significantly different from those performed at many pre-employment physical examinations. Such medical examinations are, of course, quite common. We have yet to encounter the suggestion that the various tests included in such examinations must all be based on reasonable suspicion that the employee has the condition that is the subject of the test. As the court of appeals recognized (Pet. App. 14a-15a), the employment context is critically important in assessing the propriety of the program. Although government employees do not give up their constitutional rights as a condition of government employment, it is also true, as the Court has recognized in various settings, that the employment context affects the content of a constitutional right. For example, a governmental employer may place restrictions on the speech of its employees that would violate the First Amendment if placed on members of the general public. See Rankin v. McPherson, No., 85-2068 (June 24, 1987), slip op. 5 ("B)alancing is necessary in order to accommodate the dual role of the public employer as a provider of public services and as a government entity * * * . (P)ublic employers are employers, concerned with the efficient function of their operations."); Connick v. Myers, 461 U.S. 138, 147 (1983); Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) (CIA prior review of ex-employee's memoirs); CSC v. Letter Carriers, 413 U.S. 548 (1973) (Hatch Act restrictions on political activities of federal employees). Most pertinent to this case, the Court has recently recognized that the "operational realities of the workplace" are important in detering how the Fourth Amendment applies to a public employer acting as such: public employees' legitimate expectations of privacy in that setting are diminished, and the government as an employer has important interests beyond ordinary law enforcement interests. O'Conner v. Ortega, No. 85-530 (Mar. 31, 1987), slip op. 6 (plurality opinion); slip op. 6 (dissenting opinion); see Griffin v. Wisconsin, slip op. 4. /8/ One such "operational reality" is that employers are expected to investigate the fitness for employment of persons applying for a job, even though the investigation may frequently entail an intrusion that would not be tolerated if a member of the public rather than a job applicant were involved. /9/ The Customs Service, which is charged with the mission of interdicting the smuggling of drugs into the United States, has vitally important interests in its program. Drug use by officials involved in enforcing drug smuggling laws is simply intolerable, not only for "symbolic" reasons, but for the practical reason that the potential for abuse of office is substantial. A supervisor's evaluation of an employee's day-to-day performance, moreover, cannot be relied on as a means of detecting drug use; a drug user whose on-the-job performance is outwardly impecable may nevertheless be susceptible to bribery or blackmail. The Service cannot assume that alternative means of detecting drug use are as reliable as testing. That the Commissioner believes his present work force is "largely" drug-free does not undermine the need for screening: the fact is that problems have occurred in the past and that problems may arise in the future, particularly since a large amount of hiring for new positions is under way. Indeed, it would be irresponsible for the Customs Service to assume that its current employees or the applicant pool from which it is drawing to meet the congressional mandate for expanded enforcement is now, or will be in the future, somehow immune from a problem that is ravaging the society at large. In short, there is an important interest -- shared by the Customs Service and the public generally -- in screening for drug use individuals who will be entrusted with the responsibility for interdicting drug smuggling. Moreover, as the court of appeals noted (Pet. App. 11a-12a), there is no danger in this case that government officials will exercise unbridled discretion in determining who must take the drug test. See Colorado v. Bertine, No. 85-889 (Jan. 14, 1987), slip op. 1 (Blackmun, J., concurring) (noting Fourth Amendment concern with abuse of official discretion); Donovan v. Dewey, 452 U.S. at 599 (same); Delaware v. Prouse, 440 U.S. at 654 (same). The drug-testing program adopted by the Customs Service applies to all individuals who are to be hired for the designated positions, and tests must be taken only by individuals who voluntarily apply for those jobs. In these circumstances, the court of appeals correctly held that the public interest in the drug-testing program outweighs the concerns of those job-seeking individuals who might feel a personal affront when asked to submit to this pre-employment physical examination. Contrary to the suggestion made in the dissent below (Pet. App. 25a-27a) and repeated by petitioners (Pet. 25-27), this conclusion is in no way undermined by the fact that the Customs program, before it was enjoined, had detected only one drug user. The program was in effect for only several months. Moreover, the low rate of detection may well be due to drug users' refraining from applying for the covered jobs. If so, the program is helping to achieve its goal, which is not to catch drug users, but to enable the Customs Service to avoid employing them in designated positions. See United States v. Biswell, 406 U.S. at 316 (deterrence is valid goal of program of inspections without individualized suspicion). In any event, if some current or potential drug users are somehow evading detection by the test (e.g., by suspending their drug use or delaying their job applications), modifications in the program may be needed as the Customs Service gains experience with it. There is obviously no basis, however, for holding the current and otherwise valid drug-testing program unconstitutional because a more onerous program might be more effective. 2. As petitioners seem to concede, there is no conflict among the courts of appeals on the issue they raise. The cases are relatively few in number and have produced judgments keyed to the specific factual and regulatory settings. In no case, however, has a court of appeals accepted the argument, embraced by the district court (Pet. App. 50a-53a) and reiterated by petitioners (Pet. 16-17), that a drug testing program must be struck down because it was conducted without reasonable suspicion or probable cause. There is, accordingly, no conflict calling for this Court's resolution. /10/ Thus, the Eighth Circuit upheld random drug testing of prison guards in McDonell v. Hunter, 809 F. 2d 1302 (1987). See also Spence v. Farrier, 807 F.2d 753 (8th Cir. 1986) (prisoners). The Third Circuit upheld random drug testing of jockeys, who are not even public employees, in Shoemaker v. Handel, 795 F.2d 1136 (1986), cert. denied, No. 86-576 (Dec. 1, 1986). /11/ The Seventh Circuit sustained post-accident testing of public transit employees, even in situations where, aside from the fact that an accident occurred, there is no special reason to think the accident was caused by the employee's drug use. Div. 241, Amalgamated Transit Union v. Suscy, 538 F.2d 1264, cert. denied, 429 U.S. 1029 (1976). Contrary to petitioners' suggestion (Pet. 16-17), the District of Columbia Circuit's decision in National Federation of Federal Employees v. Weinberger, 818 F.2d 935 (1987), does not create a conflict among the circuits. The court's holding there was limited to a jurisdictional question, and it simply remanded the case for consideration of the constitutionality of an Army drug testing program. The "guidance" it offered to the district court, which is dictum in any event (id. at 942-943), does not resolve the question whether individualized suspicion (or reasonable suspicion) is required. The recent decision of the New York Court of Appeals in Patchogue-Medford Congress of Teachers v. Bd. of Educ., No. 156 (June 9, 1987) likewise does not create a conflict calling for this Court's review. The New York court there struck down a drug-testing program applicable to probationary public school teachers when they become eligible for tenure. The court, however, apparently rested its decision independently on the state constitution. See slip. op. 5-7 (majority opinion); slip op. 1-7 (Simons, J., concurring). Moreover, although the court ruled that employee drug testing requires reasonable suspicion (but neither probable cause nor a warrant), it pointedly left open whether that requirement could be met by evidence of a drug problem among the class of probationary teachers as a whole rather than by individualized suspicion (slip op. 10-12). The court struck down the program at issue only after noting that testing took place without individualized suspicion and that it found no evidence of class-wide drug use to support the required testing (id. at 11-12). /12/ 3. Two related developments also counsel against granting the petition in this case. First, shortly after this lawsuit was filed, the President issued Exec. Order No. 12564, 3 C.F.R. 224 (Sept. 15, 1986), which requires federal agencies to establish drug-testing programs for current employees in sensitive positions. Pursuant to that Order, the Secretary of Health and Human Services issued draft testing guidelines on February 13, 1987. Second, recently enacted legislation will affect implementation of the Executive Order and the HHS guidelines. Section 503 of the Supplemental Appropriations Act, 1987, Pub. L. No. 100-71, 101 Stat. 468 (July 11, 1987) (H.R. 1827, 100th Cong., 1st Sess. (1987)), establishes certain new constraints on government drug-testing, including new conditions for implementation of the Executive Order in most parts of the federal government, conditions that are likely to delay implementation of the Executive Order. Although the Customs Service's program at issue here will remain in place (Section 503(b) (1) (D), 101 Stat. 468; see 133 Cong. Rec. H5680 (daily ed. June 27, 1987)), it must be brought into compliance with the Executive Order within six months (Section 503 (b) (2) (A)) and may have to be modified in the future to comply with new scientific guidelines that HHS is required to publish (Section 503(b) (2) (B)). Based on the draft February HHS guidelines, the anticipated changes include an expansion of the testing program to all current employees in sensitive positions as well as provision for review of all positive test results by a medical officer familiar with drug-abuse problems. The likely future changes in the program at issue here and the delay in implementation of drug-testing programs elsewhere in the federal government both weigh against review of this case at this time. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General LEONARD SCHAITMAN ROBERT V. ZENER Attorneys JULY 1987 /1/ Petitioners point out (Pet. 2-3 n.1) that the program covers a number of administrative jobs. In most such cases, the administrative job is covered by the drug-testing program because the job entails access to classified information that reveals drug interdiction plans and tactics, information that might be valuable to drug smuggling organizations. Petitioners made no contention in the courts below that any of the jobs covered by the program failed to meet at least one of the three criteria for testing. /2/ Because of a surge in drug smuggling in the past several years, Congress recently increased the funding of the Customs Service and directed it to expand its workforce by over 20%, or roughly 3,000 new employees (Pet. App. 12a). Studies relied on by Customs show that, among persons 18-25 years old (which is typically the age of those entering the work-force), 65% have used illegal drugs, and more than 40% of those individuals reported using illegal drugs within the past year. See Declaration of William von Raab, para. 5, Attachment to Defendants' Motion for Stay (to the district court). Even the more recent survey cited by petitioners to show a "general decline" in drug use (Pet. 13) shows a decrease of less than 10% in the use of marijuana and a 38% increase in the use of cocaine from 1982 to 1985. National Institute on Drug Abuse, Highlights of the 1985 National Household Survey on Drug Abuse (Nov. 1986). Drug use remains a pervasive national problem that affects all segments of society. See United States v. Alvarez, 810 F.2d 879, 891-892 (9th Cir. 1987) (Noonan, J., dissenting) (statistics on cocaine use). /3/ The test is administered by an employee of an independent contractor. /4/ Weekly testing of blind samples has been employed in the military to maintain reliability in its drug testing of uniformed personnel. As a result, despite the large number of samples tested, the military has not had a single false positive result on its blind samples since the quality assurance program was instituted in November 1983. R. Coc. 15, Attach. 3 (Vogl Affidavit para. 5). /5/ Petitioners do not challenge either the court's refusal to strike down the program on other constitutional grounds or its refusal to reach the merits with respect to individuals who are not current employees (see Pet. i, 6 n.8). /6/ We argued unsuccessfully in the court of appeals that the drug testing here does not constitute a "search" within the meaning of the Fourth Amendment because, like background checks or medical examinations that are legitimate conditions of employment, it does not violate employees' reasonable expectations of privacy (see Pet. App. 6a-9a). Without abandoning that contention, we assume arguendo, for purposes of this response, that the court of appeals correctly viewed the drug-testing program as a search and hence properly engaged in a Fourth Amendment reasonableness inquiry. /7/ We do not suggest that all of the factors we discuss herein are necessary to justify a drug-testing program under the Fourth Amendment. We contend only that these factors are sufficient to sustain the program involved here. /8/ In addition to the employment context, there are other settings in which persons dealing with government may be required to submit to searches without a warrant or probable cause or even individualized suspicion. See, e.g., Griffin v. Wisconsin, No. 86-5324 (June 26, 1987) (searches of homes of probationers); New York v. Burger, No. 86-80 (June 19, 1987) (searches of closely regulated businesses); Wyman v. James, 400 U.S. 309 (1971) (social worker visits to homes of welfare recipients); McMorris v. Alioto, 567 F.2d 8997 (9th Cir. 1978) (search of persons entering courthouse); United States v. Ellis, 547 F.2d 863 (5th Cir. 1977) (search of automobile of visitor to Naval station). Cf. United States v. Davis, 482 F.2d 893 (9th Cir. 1973) (federally required search of airline passengers). /9/ A pre-employment background investigation, which the union urges as an alternative to drug testing (Pet. 27), may be regarded by many as a greater intrusion on personal privacy than drug testing. See Fraternal Order of Police v. City of Philadelphia, 812 F.2d 105 (3d Cir. 1987) (constitutional challenge to questionnaire given to police officers volunteering for special investigations unit). /10/ Some of the decisions are collected in the opinion of the court of appeals on the government's motion for a stay pending appeal (Pet. App. 32a n.5; see also id. at 21a-22a). The three most recent district court decisions have sustained drug testing. Rushton v. Nebraska Public Power Dist., 653 F. Supp. 1510 (D. Neb. 1987) (nuclear plant employees); National Ass'n of Air Traffic Specialists v. Dole, Civ. No. A87-073 (D. Alaska, Mar. 27 1987) (air traffic specialists); Mullholland v. Department of the Army, Civ. No. 87-0317-A (E.D. Va. May 28, 1987) (helicopter mechanics). /11/ The testing of jockeys in Shoemaker was required by the New Jersey Racing Commission. /12/ The court noted that "there is nothing in the record to indicate that (drug use) is * * * a problem among teachers generally or in this particular school district. If it is a problem, it has not been addressed by the legislature, the Regents, the Commissioner of Education or, apparently, this School Board itself, which, as noted, issued no policy statement or regulation relating to the tests. It appears that the Superintendent alone identified the problem and chose a controversial solution." Slip op. 11-12.