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NATIONAL TREASURY EMPLES. UNION v. UNITED STATES C

July 1, 1993

NATIONAL TREASURY EMPLOYEES UNION, et al., Plaintiffs,
v.
UNITED STATES CUSTOMS SERVICE, Defendant.



The opinion of the court was delivered by: THOMAS PENFIELD JACKSON

 In December, 1992, the defendant United States Customs Service ("Customs") announced its intention to implement a new drug-screening program under which an expanded class of Customs employees with access to certain computer files will be required to submit to random periodic urinalyses to detect the presence of controlled substances. See generally Department of the Treasury, U.S. Customs Service, Draft Directive re: Drug-Free Federal Workplace Program (1992) [hereinafter "Draft Directive"]. The plaintiff National Treasury Employees Union ("NTEU"), the collective bargaining representative for some 12,000 Customs employees, contends that the proposed testing plan violates the Fourth Amendment's proscription of unreasonable searches and prays that the new testing program be permanently enjoined. *fn1" The case is presently before the Court on cross-motions for summary judgment.

 I.

 Supreme Court jurisprudence on the subject of the interrelationship between the Fourth Amendment and mandatory drug-screening of federal employees by urinalysis begins with Customs' own first drug-testing program, dating from 1986, which reached the Supreme Court in late 1988. In March, 1989, the Supreme Court decided National Treasury Employees Union v. Von Raab, 489 U.S. 656, 103 L. Ed. 2d 685, 109 S. Ct. 1384 (1989), holding for the first time that mandatory drug testing, when conducted by or at the direction of the government, is a "search" for Fourth Amendment purposes and, thus, is constitutionally permissible only to the extent it is "reasonable." Von Raab, 489 U.S. at 665 (citing Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989) (decided the same day)). *fn2"

 The Supreme Court also held in Von Raab, however, that, in other than direct law enforcement situations, a constitutionally legitimate search need not always be supported by a warrant or be based on some level of individualized suspicion. Id. at 665-66. "Reasonableness" in the drug-testing context is determined by balancing the government's interests in deterring and detecting drug use by its employees against the magnitude of the invasion of the employees' privacy interest occasioned by the testing. Id. at 666-72. Implicitly rejecting a generalized interest in having law-abiding employees unimpaired by drug use as sufficient justification for its drug-testing, the Supreme Court focused on the nature of a particular employee's position in relation to the specific interest the Customs Service perceived as vulnerable in consequence of the employee's possible drug use. Customs had identified certain positions within the agency as "testing designated positions" ("TDPs"). Any position involving direct drug interdiction, carriage of a firearm, or access to classified information, was designated as a TDP. All Customs employees in a TDP, or those selected for placement in a TDP, were required to participate in mandatory drug-screening by urinalysis.

 The Supreme Court upheld the 1986 Customs plan insofar as it required testing of applicants for promotion to positions as front-line interdiction agents and employees required to carry firearms. It remanded the case to the lower courts for clarification as to the necessity of drug testing for individuals whose only exploitable perquisite of employment was their access to classified or confidential information. In so doing, however, the Von Raab court acknowledged that protecting the integrity of "truly sensitive" information is a sufficiently compelling interest to justify drug testing. Id. at 677. *fn3"

 In the spate of post-Von Raab cases that followed to challenge drug testing as practiced elsewhere in the federal government, at least one gave the D.C. Circuit occasion to reflect upon when confidential material had acquired such "truly sensitive" stature as to justify random drug testing of those privy to it. In Harmon v. Thornburgh, 278 U.S. App. D.C. 382, 878 F.2d 484 (D.C. Cir. 1989), cert. denied, 493 U.S. 1056, 107 L. Ed. 2d 949, 110 S. Ct. 865 (1990), the court of appeals upheld a Department of Justice ("DOJ") drug testing program insofar as it required random testing of all current departmental employees with top-secret security clearance, holding that "truly sensitive" certainly includes top-secret national security information. Id. at 491-92; see also American Fed'n of Gov't Employees v. Skinner, 280 U.S. App. D.C. 262, 885 F.2d 884, 892-93 (D.C. Cir. 1989), cert. denied, 495 U.S. 923, 109 L. Ed. 2d 321, 110 S. Ct. 1960 (1990). The Harmon court also cautioned, however, that "whatever the precise contours of 'truly sensitive' information . . . the term cannot include all information which is confidential or closed to the public eye," Harmon, 878 F.2d at 492, and went on to hold that DOJ employees could not be subject to drug testing merely because they had prosecutorial duties or were exposed to "grand jury information." Id. at 492-93.

 II.

 Customs' new plan at issue here adds still more categories to the list of its TDPs: individual Customs employees will henceforth be subject to random drug testing if they have access to certain database information maintained and stored in Customs' computers. Upon implementation of the 1992 plan, an estimated 2700 additional Customs employees will now be subject to random testing for the first time.

 Under the new plan, Customs employees who have access to Customs' "TECS II" computerized database, and certain files in its "ACS" database, will be subject to random testing. Draft Directive, supra, at P 6, § H. The TECS II system contains law enforcement information for use by a number of government agencies, including Customs and the FBI, and the State Department. The TECS II system is divided into four levels, and depending on his or her position and authorization, an employee may be able to access some or all of these levels. Level 1 is available to all TECS II users and contains National Crime Information Center intelligence, identifying persons and objects believed to be connected with criminal activity. Level 2 contains Customs-specific records relating to arrests and investigations. Level 3, access to which is highly restricted, contains material relating to ongoing Customs investigations. And Level 4, which is yet more highly restricted, contains information that Customs considers most sensitive (but also includes the "grand jury information" the Harmon court thought to be of insufficient consequence). Customs employees with access to any of the TECS II levels are to be subject to random testing under the new plan.

 ACS is a similar database containing records relating to commercial traffic into and out of the United States. ACS is divided into thirteen "modules," which are grouped by subject matter. Depending on his or her duties, a Customs employee may have access to one or more of these modules. Under the new plan, a Customs employee will be subject to random drug testing if he or she has access to the "fines, penalties and forfeitures" module ("FPM module") or to the "cargo selectivity criteria" module ("CSC module"). The FPM module contains records of all Customs seizures, including the contraband seized and the particulars of the case. The CSC module contains a checklist of characteristics that Customs has identified as indicative of illegal smuggling activities.

 Customs argues, as expected, that random testing of employees with access to these files is necessary to maintain the confidentiality of the information they contain. It contends that the lucrative nature of the drug trade creates a high risk of corruption of employees susceptible to temptation or blackmail (as drug users are likely to be) who have access to TECS II or ACS information, and, accordingly, an increased risk of disclosure of material that those involved in illegal drug trafficking or smuggling would find exceptionally valuable. Drug testing, Customs asserts, at least offers some protections against its compromise, if it will not altogether prevent it.

 The plaintiff contends, as it has in other such cases, that any governmental interest in testing a multitude of low-level Customs employees with a low corruptibility quotient is insufficient to justify the indignity of warrantless, random drug ...


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