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NATL. TREASURY EMPLOYEES UNION v. HALLET

October 28, 1991

NATIONAL TREASURY EMPLOYEES UNION, PLAINTIFF,
v.
CAROL BOYD HALLETT, COMMISSIONER U.S. CUSTOMS SERVICE, DEFENDANT.



The opinion of the court was delivered by: Glasser, District Judge:

MEMORANDUM AND ORDER

This case, in which a union representing employees of the United States Customs Service challenges the constitutionality of a random drug testing program, is before the court on cross motions for summary judgment. The parties have prepared an extensive Stipulation of Facts, and it is on that submission which the court primarily relies for the factual basis of its decision. As is set forth hereafter, the Customs Service random drug testing program is reasonable under the Fourth Amendment and defendant is entitled to summary judgment.

BACKGROUND

Armed with the conviction that the federal workplace is not immune to the problem of illegal drug abuse and with the technology to test for such usage, the Customs Service in 1986 implemented a program of urinalysis drug testing for internal and external applicants tentatively selected for placement in positions involving drug interdiction, firearms, or the handling of certain highly sensitive information. In a decision that will be discussed at length below, the Supreme Court upheld the constitutionality of that plan. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989) (hereafter "Von Raab").

More recently, the Customs Service has proposed the extension of that plan to incumbents — specifically, to those involved in accidents, those for whom there is a reasonable suspicion of drug use, those who volunteer for testing, and those who occupy "sensitive" positions. This last group, members of which would be tested by random selection, would be composed of incumbents in positions which involve drug interdiction or which have duties which can affect the public's safety, namely, the carrying of a firearm or operation of a motor vehicle or forklift. Although no position is testing-designated solely because of access to material classified as a national security secret, some incumbents do have such access, and the Customs Service further justifies the testing of those incumbents on that basis. Twenty-eight different positions within the National Treasury Employees' Union collective bargaining unit are subject to random testing, covering some 6,600 employees. Roughly 5,900 of those employees are Customs Inspectors. It is this random component of the new testing plan which plaintiffs challenge as unconstitutional.

FACTS

1. The Random Testing Plan

The procedures of the random drug testing program are set forth in the Mandatory Guidelines for Federal Workplace Drug Testing Programs, 53 Fed.Reg. 11,970 (1988). First, the plan provides a two-step advance notification process. No later than 60 days before random testing may commence, the Customs Service will issue a general notice to employees informing them of the drug testing program and describing the circumstances under which testing may occur. In addition, employees in testing-designated positions are notified no less than 30 days before they are subject to random testing. A signed acknowledgment of this notification is obtained from the employee, who may, if he feels that his position has been improperly chosen for random testing under the program's criteria, file a grievance and seek a reversal of that decision through an administrative process. An employee selected for actual testing is notified within two hours of the scheduled test, and is informed that he is under no suspicion of taking drugs and that his name was selected randomly.

Employees in the testing-designated positions are tested at a rate of 10% per year, with employees selected by a computer using social security numbers. Urine sample production and analysis is performed according to the same protocol as that which the Customs Service uses for applicant testing and which was described in Von Raab:

  On reporting for the test, the employee must
  produce photographic identification and remove any
  outer garments, such as a coat or a jacket, and
  personal belongings. The employee may produce the
  sample behind a partition, or in the privacy of a
  bathroom stall if he so chooses. To ensure against
  adulteration of the specimen, or substitution of a
  sample from another person, a monitor of the same
  sex remains close at hand to listen for the normal
  sounds of urination. Dye is added to the toilet
  water to prevent the employee from using the water
  to adulterate the sample.
    Upon receiving the specimen, the monitor
  inspects it to ensure its proper temperature and
  color, places a tamper-proof custody seal over the
  container, and affixes an identification label
  indicating the date and the individual's specimen
  number. The employee signs a chain-of-custody
  form, which is initialed by the monitor, and the
  urine sample is placed in a plastic bag, sealed,
  and submitted to a laboratory.
    The laboratory tests the sample for the presence
  of marijuana, cocaine, opiates, amphetamines, and
  phencyclidine. An initial screening uses the
  enzyme-multiple-immunoassay technique (EMIT). Any
  specimen that is identified as positive on this
  initial test must then be confirmed using gas
  chromatography/mass spectrometry (GC/MS).
  Confirmed positive results are reported to a
  "Medical Review Officer," "[a] licenced physician
  . . . who has knowledge of substance abuse
  disorders and has appropriate medical training to
  interpret and evaluate the individual's positive
  test result together with his or her medical
  history and any other relevant biomedical
  information. After verifying the positive result,
  the Medical Review Officer transmits it to the
  agency."

Von Raab, 489 U.S. at 661-62, 109 S.Ct. at 1388-89.

2. The Testing-Designated Positions

Each of the testing-designated positions is now described. Except in the instance where indicated, these facts are by stipulation of the parties.

(a) Customs Inspectors, Canine Aircraft Inspectors, Canine
    Enforcement Officers

Customs Inspectors are responsible for enforcing customs and related laws at ports of entry into the United States. They inspect and process incoming baggage, passengers, cargo, airplanes, ships, and other conveyances, and interdict contraband. Some are assigned to specialized units which target particular persons, places, or arrivals for inspection and enforcement action based on intelligence information. They are empowered to search persons and things, seize contraband, arrest and detain suspects, and to use deadly force if necessary. All are authorized to carry firearms and must be proficient in their use. The majority do carry firearms.

Customs Inspectors may work in dangerous conditions exposing them to possible physical attack and lethal weapons. They can have contact with drug smugglers both alone or in the presence of other Customs employees. They are required to pass a medical examination and must undergo a background investigation prior to employment.

Canine Enforcement Officers and Canine Aircraft Inspectors perform essentially the same duties as Customs Inspectors, except that they perform searches using animals trained to detect illegal drugs.

All Customs Inspectors, Canine Enforcement Officers, and Canine Aircraft Inspectors have access to a multi-agency, limited-access computerized database known as the Treasury Enforcement Communications System ("TECS"). It contains an array of non-public information related to drug interdiction including suspect subject records, which contain lookouts issued by the Customs Service, Drug Enforcement Agency, Justice Department, Coast Guard, and other law enforcement agencies for persons and conveyances suspected of involvement in drug smuggling. The lookouts contain the names or identifying characteristics of targets and expected times and places of entry into the United States; identifying characteristics of aircraft, vessels and vehicles targeted for detention and searches at points of entry; specific locations and times targeted for special scrutiny on the basis of intelligence information; and suspicious modes of operation. The TECS database also contains non-suspect subject records which include registrations of pilots and navigators, flight plans, and records of the history of searches and seizures, including the frequency with which a particular pilot is normally subject to search. TECS also contains search, seizure and arrest reports, including the manner in which the contraband was found, intelligence reports on suspected smuggling activity, names of informants, and investigatory techniques used. It also contains the Federal Bureau of Investigation's National Crime Information Center ("NCIC") records with the names and identifying characteristics of wanted persons and suspected vehicles, as well as National Law Enforcement Telecommunications Systems records which contain information from state law enforcement authorities similar to that in NCIC. This information all relates to specific individuals or groups, not merely to general classes of violators.

Customs Inspectors also have access to a less sensitive database known as the Automated Commercial System ("ACS"). The ACS is a telecommunications system designed to facilitate the filing of import documentation such as declarations of entry, invoices and bonds. It is divided into 13 modules, most of which are unrelated to drug interdiction. One module contains fine, penalties and forfeiture records, containing the name and address of the alleged violator of drug-smuggling or other laws, the names and addresses of known or suspected associates, type and quantity of drugs seized, and other information. Also within the ACS are cargo selectivity criteria, which identify characteristics to be used by the Customs Service to determine how items and conveyances are subject to searches.

(b) Customs Mail Specialists

Customs Mail Specialists work in mail facilities to inspect materials entering the country through the mails. Their work involves the examination of the exterior of packages and letters and the examination of the contents of some. Incumbents have discretion to determine what letters and parcels are opened. They may also be assigned to special processing teams which target specific parcels. Incumbents who discover illegal drugs report to a Customs Inspector and secure the contraband until the Customs Inspector arrives to take custody of it. They perform most of their work in receiving areas for passengers, baggage and cargo, and often in an office setting. They have access to the same information in the TECS and ACS databases to which Customs Inspectors have access. They are not authorized to make arrests and do not carry firearms, but are required to pass a medical examination and undergo a background investigation.

(c) Customs Inspection Assistants, Customs Inspection Clerks

Customs Inspection Assistants assist Customs Inspectors in their inspection and clerical duties. Their duties specifically include (1) assisting in searches and serving as witnessing officers during personal searches, (2) preparation and maintenance of files in the TECS and ACS databases, (3) posting and daily review of lookouts in the TECS system, (4) daily review of other drug-interdiction intelligence bulletins for inclusion in the TECS source records, (5) inventory of seized contraband, (6) preparation of chain-of-custody forms and documentation of destruction of contraband, (7) maintenance of administrative records, (8) fingerprinting of arrested suspects, and (9) routing of passengers and cargo through customs processing facilities while watching for unusual or suspicious behavior. They do not have arrest powers but are authorized to detain persons who attempt to flee or circumvent inspection. They have access to the same information in the TECS and ACS databases to which Customs Inspectors have access. They may have access to seized contraband within the chain-of-custody, and may on occasion have unsupervised contact with drug-smugglers during fingerprinting. They work under the supervision of Customs Inspectors and in the same environment as Customs Inspectors. Some are required to carry firearms, although most do not, and all are required to undergo background investigations.

Customs Inspection Clerks are essentially a lower grade of Customs Inspection Assistant, performing similar duties under a greater degree of supervision. They are not authorized to carry firearms, do not have arrest powers, and do not have access to drug-related information in the TECS database. They do have access to cargo selectivity criteria in the ACS database, and they are required to undergo a background investigation.

(d) Security Assistants

Security Assistants provide surveillance at Customs points of entry by operating a closed circuit television system to monitor the movements and behavior of persons arriving on international flights. Suspicious activity is reported to a Customs Inspector or other law enforcement official. They do not make arrests, do not carry firearms, and do not require face-to-face contact with smugglers. Most do not have access to the TECS database; they do, however, have access to the ACS database. They are required to undergo a background investigation.

(e) Operational Analysts, Operational Analysis Specialists,
    Operational Enforcement Analysts, Program Analysts
    (Inspection and Control)

Operational Analysts, Operational Analysis Specialists, and Operational Enforcement Analysts consist primarily of former Customs Inspectors who conduct studies and research to assist field personnel in performing their duties more effectively. Using information gathered from a variety of sources, including confidential informants and other federal law enforcement agencies, incumbents disseminate intelligence bulletins used by field personnel to detect and apprehend smugglers. They also revise the cargo selectivity criteria in the ACS database. They have the same access to the TECS and ACS databases as Customs Inspectors have. They are not authorized to make arrests, do not conduct searches and seizures, do not carry firearms, have no or limited contact with drug smugglers, and do not require access to contraband. Their work is performed almost entirely in an office environment. They are required to undergo a background investigation.

Program Analysts (Inspection and Control) perform under similar conditions but study and assess the overall effectiveness of inspection and enforcement efforts. They consider the allocation of resources and the distribution of workloads. They may also analyze specific problem areas, such as drug interdiction or cargo inspection. As part of their work, they generate daily enforcement activity reports which contain information about seizures of illegal drugs, currency and other contraband. In other respects they are similar to Operational Analysts.

(f) Sales and Seizure Specialists

Sales and Seizure Specialists are the custodians of seized property and unclaimed merchandise. They operate facilities which serve as repositories for large stores of seized items, which may include illegal drugs, explosives and weapons. They are responsible for ensuring that seized items are properly accounted for, controlled, documented and released. They assist in the destruction of illegal drugs, and may weigh seized contraband prior to destruction. They thus have access to illegal drugs within the chain-of-custody. They work under the supervision of the head of the Sales and Seizure Unit, and may act without supervision; however, destruction of illegal drugs requires two Customs employees to be present. They do not have access to the TECS database but do have access to the ACS database, do not make arrests, do not conduct searches and seizures, do not carry firearms, and do not operate heavy equipment. They must undergo a background investigation.

(g) Seized Property Custodians, Seized Property Management
    Specialists

Seized Property Custodians and Seized Property Management Specialists are responsible for the custody and secure storage of seized, forfeited and abandoned property from the point of its initial acceptance to the point of final disposition. They may accept custody of seized goods directly from the seizing officer within chain-of-custody procedures. They may also assist in the destruction of illegal drugs, and may weigh the drugs to assure that the weight agrees with the original amount accepted. They have access to the TECS and ACS databases, do not make arrests, do not conduct searches or seizures, do not carry firearms, do not have contact with smugglers, and do not operate heavy equipment. They are required to undergo a background investigation.

(h) Seized Conveyance Specialists, Secure Storage Technicians,
    Secure Storage Specialists, Secure Storage Custodians

Seized Conveyance Specialists, Secure Storage Technicians, Secure Storage Specialists, and Secure Storage Custodians are responsible for custody of contraband and seized property, including illegal drugs, maintaining inventory and documentary controls, and other clerical tasks. They escort and arrange for escort of controlled substances to the Customs Training Center and arrange for destruction of the drugs after their value as training materials has been lost. They also conduct security vulnerability assessments to identify and correct potential hazards which could lead to the loss, theft, misuse or damage of seized property, including illegal drugs, explosives and weapons. They have access to contraband within the chain-of-custody.

They are authorized to carry firearms and have access to the ACS, but not TECS, database. They do not make arrests, do not conduct searches and seizures, and do not require access to smugglers. Their work is performed mostly in a ...


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