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