Arthur W. Stigile and Ellen Balis v. William J. Clinton, President

110 F.3d 801, 324 U.S. App. D.C. 57

• Court: Court of Appeals for the D.C. Circuit
• Decided: August 21, 1997
• Docket: 96-5249
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Concurring opinion filed by Circuit Judge ROGERS.

SENTELLE, Circuit Judge:

This is an appeal from the district court’s grant of an injunction prohibiting the Office of Management and Budget from subjecting certain of its employees to random drug testing. The district court held that such drug testing violated the employees’ Fourth Amendment right to be free from unreasonable searches. Because we believe the random drug testing at issue here is justified as a means of protecting the safety of the President and the Vice President, we reverse.

Background

In 1986 President Reagan issued an executive order requiring the head of each executive agency to “establish a program to test for the use of illegal drugs by employees in sensitive positions.” Exec. Order No. 12,564, 51 Fed.Reg. 32,889, 32,890 (1986). Acting pursuant to this order, the Executive Office of the President (“EOP”) issued its Drug-Free Workplace Plan in July 1988. The Plan authorized mandatory testing of all job applicants and “random testing” of all applicants in sensitive positions. Testing under the plan is done in accordance with the Department of Health and Human Services’ (“HHS”) mandatory guidelines for drug testing by urinalysis.

The Office of Management and Budget (“OMB”) is one of the entities covered by the EOP plan. In the 1992 Appendix to that plan, OMB indicated which of its employees would be subject to random testing:

With minor exceptions, all of the positions in OMB ... have been identified as testing designated positions [“TDP”]____ OMB ... [has] considered the extent to which the positions considered give employees access to sensitive information at the classified level; require employees, as a condition of employment, to obtain a security clearance; require employees to engage in activities affecting public health or safety; or give employees access to areas that are frequented by the President or Vice President or areas to which access is controlled by the United States Secret Service in its role of protecting the work environment of the President and the Vice President. Presently, the only OMB positions not identified as TDP are those where an employee does not have passholder access to the Old Executive Office Building (OEOB) and there are no other testing criteria applicable to the position.

Many of the OMB’s senior staff have offices in the OEOB, which is next to the White House and within the White House security perimeter. Other OMB employees are given passes because of their frequent need to visit the building for meetings with their supervisors. The OMB singles out OEOB passholders for testing because the President and the Vice President are frequently in the building. The Vice President has his office there and is in the OEOB on a daily basis. The President frequently visits for meetings with the Vice President and other officials.

OEOB passholders are able to enter the building at any time. When they enter, they are subject to magnetometer and x-ray security screening measures. OEOB passholders are also able to arrange for non-passholders to enter the budding. These non-passhold-ers must go through the normal security procedures and also have their names run through a National Crime Information Center background check.

The OMB’s concern is that OEOB pass-holders might use their access to harm the President or the Vice President. They contend that this harm could come in one of three ways: drug-using OEOB passholders might (1) harm the President or the Vice President themselves, (2) clear into the OEOB someone intent on harming the President or the Vice President, or (3) collect information on the comings and goings of either official for some third party intent on rendering such harm.

Appellees Arthur Stigde and Eden Balis are Financial Economists with the OMB. Whde their offices are in the New Executive Office Budding, they each have permanent passholder access to the OEOB. The OMB originally tested only those employees hired after 1992. In 1995, however, the OMB reviewed its testing policies and decided that ad OEOB passholders, regardless of when they were hired, would be subject to testing. Stigile and Balis possess permanent OEOB passes and therefore became testing-eligible. They do not meet any of the OMB’s other criteria.

In June 1995 Stigile and Balis received notice that their positions were now “Testing Designated.” On June 12, 1996, Stigile was informed that he had been selected for testing. He and Balis (who has not yet been selected) immediately sought and received a temporary restraining order prohibiting the OMB from subjecting them to this testing. They also requested preliminary and permanent injunctions.

• Stigile and Balis contended before the district court that the random testing of holders of permanent OEOB passes was an unreasonable search in violation of the Fourth Amendment. They noted that there are hundreds of interns and visitors who have access to the OEOB who are not required to go through this humiliating experience. The government responded by arguing that the search was justified as a means of protecting the safety of the President and the Vice President.

The district court agreed with appellees and granted a preliminary injunction barring the OMB from including them in its random drug testing program. This appeal followed.

Analysis

The Fourth Amendment states that the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated____” U.S. Const, amend. IV. Government-compelled urinalysis is a search for purposes of the Fourth Amendment. Skinner v. Railway Labor Executives’Ass’n, 489 U.S. 602, 617, 109 S.Ct. 1402, 1413, 103 L.Ed.2d 639 (1989). As such, it is impermissible if it is unreasonable.

In criminal cases, a government search is ordinarily unreasonable unless it is conducted pursuant to a judicial warrant issued upon probable cause. Id. at 619, 109 S.Ct. at 1414; National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390-91, 103 L.Ed.2d 685 (1989). In Skinner and Von Raab, however, the Court acknowledged that there are exceptions to the warrant requirement for cases where a search serves special governmental needs “beyond the normal need for law enforcement.” Skinner, 489 U.S. at 619, 109 S.Ct. at 1414; Von Raab, 489 U.S. at 665, 109 S.Ct. at 1390-91. In such eases the reasonableness of a search is determined by balancing “the public interest in the ... testing program against the privacy concerns implicated by the tests, without reference to [the] usual presumption in favor of the procedures specified in the Warrant Clause.” Von Raab, 489 U.S. at 679, 109 S.Ct. at 1398. We have applied this same test to numerous other proposed drug testing programs in recent years. See, e.g., National Treasury Employees Union v. United States Customs Serv., 27 F.3d 623, 626 (D.C.Cir.1994); Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C.Cir.), cert. denied, 502 U.S. 1020, 112 S.Ct. 669, 116 L.Ed.2d 760 (1991); Hartness v. Bush, 919 F.2d 170, 172 (D.C.Cir.1990), cert. denied, 501 U.S. 1251, 111 S.Ct. 2890, 115 L.Ed.2d 1055 (1991); National Treasury Employees Union v. Yeutter, 918 F.2d 968, 971 (D.C.Cir.1990); American Fed’n of Gov’t Employees v. Skinner, 885 F.2d 884, 889 (D.C.Cir.1989), cert. denied, 495 U.S. 923, 110 S.Ct. 1960, 109 L.Ed.2d 321 (1990); National Fed’n of Fed. Employees v. Cheney, 884 F.2d 603, 608 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 864, 107 L.Ed.2d 948 (1990); Harmon v. Thornburgh, 878 F.2d 484, 487 (D.C.Cir.1989), cert. denied, 493 U.S. 1056, 110 S.Ct. 865, 107 L.Ed.2d 949 (1990).

The public need advanced by the proposed search at issue here is the protection of the President and the Vice President. This is clearly “beyond the normal need for law enforcement.” Von Raab and Skinner require therefore that we determine whether the search is reasonable by balancing the public interest served by the testing against the OEOB passholders’ privacy interest in not being tested.

The Interests

The public interest the government is seeking to protect is undoubtedly of the utmost importance. New events debilitate the nation more than the assassination of a President. The Supreme Court has recognized the importance of this interest. In Watts v. United States, the Court said, “[t]he Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence.” 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) (per curiam); see also White House Vigil for ERA Comm. v. Watt, 717 F.2d 568, 572 (D.C.Cir.1983) (“The balance that must be struck between First Amendment rights and other public interests is especially delicate when one of those interests is the safety of the President.”); Sherrill v. Knight, 569 F.2d 124, 130 (D.C.Cir.1977) (“Clearly, protection of the President is a compelling, even an overwhelming interest ____” (internal quotations and citations omitted)).

We note, lest we create an inadvertent precedent by negative implication, that the government may have an additional interest not asserted in this case. That is, in addition to actually protecting the President, the government also has an interest in assuring the public that it is taking every possible precaution to ensure that he is safe. The assassination of a President has an enormously disruptive impact on the life of the nation; the government has an interest in reducing the public’s fear that it will have to endure this sort of disruption. Public measures to protect the President play an important role in accomplishing this goal.¹ Cf. Harmon, 878 F.2d at 497 (Silberman, J., concurring in part and dissenting in part) (arguing that the American people’s interest in ascertaining the full commitment of “drug warriors” to the war against drugs justifies search by urinalysis).

It is also true, however, that the appellees have a serious and legitimate privacy interest in not being subject to urinalysis. The HHS regulations that govern the EOP’s testing minimize the intrusion into this interest. Von Raab, 489 U.S. at 672 n. 2, 109 S.Ct. at 1394 n. 2. In addition, appellees’ expectation of privacy is lessened because they occupy positions that require stringent background checks. United States Customs Serv., 27 F.3d at 629. These factors do not, however, eliminate the appellees’ privacy interest altogether. Urinalysis still requires an employee to perform a quintessentially private act in the presence of another. In Skinner the Court noted that it would “not characterize [the] additional privacy concerns [raised by urinalysis] as minimal in most contexts.” 489 U.S. at 626, 109 S.Ct. at 1418. In Vernonia Sch. Dist. 47J v. Acton, — U.S. --,-, 115 S.Ct. 2386, 2396, 132 L.Ed.2d 564 (1995), the Court cautioned “against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.”

Balancing the Interests

As we have previously noted, the Supreme Court in Von Raab and Skinner did not “articulate an analytical rule by which legitimate drug-testing programs could be distinguished from illegitimate ones.” Harmon, 878 F.2d at 488. Skinner and Von Raab require us rather to perform a case-by-case balancing of interests. Despite the fact-specific nature of this inquiry, there are certain broad themes in the case law that guide us in our disposition of this case.

Appellees urge us to rely on the principle that there must be a “causal connection between the employees’ duties and the feared harm.” National Fed’n of Fed. Employees, 884 F.2d at 614. In every case where the Supreme Court or this court has upheld a drug testing program for federal employees, the feared harm has been directly related to the employee’s execution of his job. In Skinner the Department of Transportation mandated testing of employees involved in serious accidents and authorized testing of employees who had violated certain safety rules. 489 U.S. at 606, 109 S.Ct. at 1407. The Court decided that this testing was reasonable because it helped the government both to deter future accidents and to learn the cause of accidents that had already occurred. Id. at 628-30, 109 S.Ct. at 1419-20. In Von Raab the Customs Service required urinalysis of employees who sought transfer or promotion to positions that involved drug interdiction, use of a gun, or access to sensitive information. 489 U.S. at 660-61, 109 S.Ct. at 1387-88. The Court allowed the program for the first two categories and remanded for more information for the third. It held, “[i]n light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the [program] cannot be deemed unreasonable.” Id. at 674, 109 S.Ct. at 1395.

In the cases from our circuit on this question, the link between the harm to be avoided and the employee’s execution of his job has been just as close. See, e.g., Willner, 928 F.2d at 1188 (“In our ... decisions concerning random drug testing of incumbents, the balance we struck turned to a large extent on the nature of the employee’s position.”). In National Treasury Employees Union v. United States Customs Serv., we allowed testing of employees with access to the computer databases the Customs Service used to determine which ships were to be searched for drugs. 27 F.3d at 630. In American Fed’n of Gov. Employees v. Skinner, we referred to the “extraordinary safety sensitivity of the bulk of the” positions covered by a program held to be reasonable. 885 F.2d at 890; see also National Fed’n of Fed. Employees, 884 F.2d at 610 (allowing drug testing for some employees for whom a “single drug-related lapse by any covered employee could have irreversible and calamitous consequences”); Harmon, 878 F.2d at 490 (“Von Raab ... suggests that the government may search its employees only when a clear, direct nexus exists between the nature of the employee’s duty and the nature of the feared violation.”).

Appellees use these eases to argue that because the harm the government is seeking to prevent has nothing to do with the performance of their duties as economists for the OMB, the drug testing program must be unreasonable. They contend that random drug testing of government employees should be upheld only when there is a clear nexus between the employee’s performance of his job and the harm that is sought to be

avoided; that there is no such clear nexus here; and that therefore this search must be unreasonable. We reject this argument.

Appellees misunderstand the nature of the nexus requirement. The nexus requirement is not a mechanical test, requiring the court to ask nothing more than whether the harm to be avoided is a result of the tested employee’s inability to perform his job properly. The nexus to be examined is not that between the job and the harm, but rather that between the risk posed by a drug-using employee and the evil sought to be prevented by the testing. We note that even in Harmon, arguably the strongest case in favor of appellees’ position, the court cited Von Raab as “suggest[ing] that the government may search its employees only when a clear, direct nexus exists between the nature of the employees’ duty and the nature of the feared violation.” 878 F.2d at 490. Thus, the Harmon formulation describes the nexus as between the duty and the danger, not between the performance level and the danger. In this case, and perhaps others, a duty which places the employee in a position to render harm can give rise to that nexus even when the feared act by the employee would not itself be a normal part of that duty. When the link between the risk and the evil has been direct and immediate we have determined that a proposed government search is reasonable.

What the nexus requirement demands then is that there be an immediate, non-attenuated connection between the employee’s drug use and the danger to be avoided. This is why in Harmon we allowed the Department of Justice to test employees holding top secret national security clearances, but did not allow the Department to test all federal prosecutors and all employees having access to grand jury proceedings. 878 F.2d at 496. For employees with access to top-secret information, a single mistake could be disastrous, while for many other Department of Justice employees the risk was not so immediate. As we said there:

The public safety rationale adopted in Von Raab and Skinner focused on the immediacy of the threat. The point was that a single slip-up by a gun-carrying agent or a train engineer may have irremediable consequences____ Von Raab provides no basis for extending this principle to the Justice Department, where the chain of causation between misconduct and injury is considerably more attenuated.

Id. (emphasis in original). Likewise, in National Fed’n of Fed. Employees, we allowed the Department of the Army to test randomly many different categories of employees, but did not allow it to extend the program to employees who worked in the Army’s Drug Testing Laboratories. We acknowledged the interest that the government had in ensuring that these employees were drug-free, but still did not allow the testing, because “a drug-related lapse by such an employee does not portend either direct or irreparable harm, as would, for example, a lapse by an air traffic controller, pilot, or guard.” 884 F.2d at 614.

In this case, the harm that the government is seeking to avoid has the necessary immediate connection to the risk posed by a drug-using employee. If the horrifying scenario that the government envisions were ever to come to pass, there would be no buffer between the drug-induced lapse by the employee and the injury to the nation’s interests. There would be no opportunity for other government employees to stop or make up for the damage done by the errant employee. See, e.g., Skinner, 489 U.S. at 628, 109 S.Ct. at 1419; Von Raab, 489 U.S. at 670-71, 109 S.Ct. at 1393-94. The harm would be both “direct” and “irreparable.” National Fed’n of Fed. Employees, 884 F.2d at 614. The appellees’ nexus argument therefore fails.

Appellees also argue that the feared harm in this case is no more than “sophistic speculation.” They seem to suggest that because it is extremely unlikely that an OEOB pass-holder would use that access to harm the President, then it must be unreasonable for the OMB to require testing on this basis. While we agree that the likelihood that the feared harm will occur is a factor to be considered, we do not agree that the low probability in this ease makes the government’s search unreasonable. The Supreme Court has suggested that the more serious the harm that is sought to be avoided, the more likely it is that a search that is designed to prevent the harm will be thought to be reasonable. In Von Raab the Court wrote, “[wjhere, as here, the possible harm against which the Government seeks to guard is substantial, the need to prevent its occurrence furnishes an ample justification for reasonable searches calculated to advance the Government’s goal.” 489 U.S. at 674-75, 109 S.Ct. at 1395. The Von Raab Court elaborated on this point by citing in a footnote to circuit court opinions upholding sus-picionless searches of passengers and their baggage at airports. The Court quoted the following passage from one of these opinions:

When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, that danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage____

Von Raab, 489 U.S. at 675 n. 3, 109 S.Ct. at 1395 n. 3 (quoting United States v. Edwards, 498 F.2d 496, 500 (2d Cir.1974) (Friendly, J.) (emphasis in original)).

In this case the government is trying to prevent an extremely serious harm. Given this, we should hold for the government so long as there is an adequate connection between the harm sought to be avoided and the drug testing program. Here the connection, is clear. This court has before noted the possibility that a drug user could be vulnerable to bribery or intimidation. United States Customs Serv., 27 F.3d at 629. It is possible that a drug-using OEOB passholder could be blackmailed into using his access to the building to assist in an attack on the President. Given the importance of protecting the President’s safety, this is all that is required to make this particular search reasonable. It therefore does not violate the Fourth Amendment.

Appellees make one final argument that must be addressed. They argue that random drug testing of OEOB passholders cannot be reasonable because the EOP does not test the hundreds of interns, temporary visitors, reporters, and contractors who have the same access to the OEOB as do holders of permanent OEOB passes. There are two reasons why this argument fails. First, this case is about whether it is reasonable to administer tests to the holders of permanent passes. What the OMB does with other groups cannot control a Fourth Amendment challenge to the drug testing of permanent passholders. We cannot require the government to attack all aspects of a problem before we will uphold its right to act against a single aspect. Second, there is a significant difference between the access given to permanent passholders and the access given to these other groups. Non-permanent pass-holders can enter the building on a temporary basis only. Interns are granted the most access of any other group, and they have access for a maximum of three months. Permanent passholders are able to observe the interior of the building for months on end. They are thus in a superior position to acquire information on the comings and goings of the President and the Vice President. They are therefore a far more valuable source for blackmailers who wish to harm either official.

Conclusion

Because the government’s interest in protecting the safety of the President and the Vice President within the White House security perimeter outweighs appellees’ interest in not being subject to urinalysis, the suspi-cionless drug testing of OEOB passholders is not an unreasonable search. It does not, therefore, violate the Fourth Amendment. The district court’s order is reversed.

1 . This is not to suggest that ungrounded fears would justify searches. We only mean to make clear that we do not preclude the possibility that assurance of the public that the President's safety is being adequately protected could be a factor in a Fourth Amendment analysis.