National Treasury Employees Union v. Von Raab – Oral Argument – November 02, 1988

Media for National Treasury Employees Union v. Von Raab

Audio Transcription for Opinion Announcement – March 21, 1989 in National Treasury Employees Union v. Von Raab

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William H. Rehnquist:

We’ll hear argument next in No. 86-1879, National Treasury Employees Union v. William von Raab.

Just a moment until… you may proceed whenever you’re ready, Ms. Williams.

Lois G. Williams:

Thank you, Mr. Chief Justice, and may it please the Court:

In the Customs program at issue today, large numbers of innocent people are subjected to what they regard as a degrading and embarrassing search of their urine when the government has no reason to believe that they are guilty of any drug use and when the government admits that it does not expect to find significant evidence of such misconduct in these searches.

We will argue, therefore, that these suspicionless searches are unreasonable under the Fourth Amendment.

I’d like to consider first today the government’s justification for this search because under any analysis the Court may employ, the government must have a need to intrude upon the privacy of its citizens, even its employees.

And if that need does not exist, if it is not… if the search is not justified, even a minor intrusion cannot be justified.

Therefore, the… the government argues that this is a minor intrusion.

I would like to… to address the intrusion question second.

Now, the government recites an interest in this case in a drug-free work force.

But on this record, as we will show, that interest is already met and it is not threatened.

And in that event, the government has failed to establish any need to undertake new and intrusive searches beyond the many tools it already possesses, let alone searches without any individualized suspicion whatever.

May I turn then to what the record actually shows about the origins of this program?

Byron R. White:

xxx be a warrant–

Lois G. Williams:

Well, Your Honor–

Byron R. White:

–on that basis.

Lois G. Williams:

–We have… we have… the government has never really made an argument that it should be freed of the traditional requirements of the Fourth Amendment.

Byron R. White:

Well, are you arguing that in order to justify these tests that there must be a warrant?

Lois G. Williams:

I… we have… we did preserve that argument, Your Honor.

Well, do you… is that what you’re–

Lois G. Williams:

But we are not… we do not believe that the Court would require a warrant in this circumstance.

Byron R. White:

–So, individualized–

Lois G. Williams:

But–

Byron R. White:

–suspicion would be enough even though there the government has plenty of other ways to do this?

Lois G. Williams:

–Well, let me suggest I… I really believe that this… these searches ought to be conducted only on probable cause.

The… I am perfectly willing to… to see that the warrant requirement is a… is a bit different.

And I… although I think… and that’s because in a suspicion circumstance, we have a more imminent situation.

In this situation, however, we have people who have done nothing.

There is no triggering event of any sort which would suggest that a warrant requirement could be abandoned.

I mean, usually it’s justified in abandoning the warrant requirement when there are some sort of exigencies.

Lois G. Williams:

And when you are looking at people who have given you no cause at all, it is rather more like the situation where at least some sort of area-wide warrant or work force-wide warrant might be obtained.

I frankly believe that that is less–

Byron R. White:

Would a work force–

Lois G. Williams:

–far less important than the… than the requirement of cause.

William H. Rehnquist:

–Would a work force-wide warrant really be of any benefit to… to your clients here?

Lois G. Williams:

Your Honor, it… it… I am perfectly satisfied that the… the warrant would give very little more than we already have, which is why we don’t place great stock in it.

But the analysis to be sound… true to the analysis, normally the government would have to justify abandoning the traditional requirements.

It hasn’t really made that argument in this case.

But the regularity of the procedure is not really the problem in this case.

The problem is in taking people who have done nothing for which they can be criticized.

Indeed, the selection of this group is almost perverse because they have recently been examined and their work record evaluated.

They are current employees, many with long histories, who have been selected for promotion.

It… they would appear to be on common sense the least likely to create any problem for the Customs Service.

Antonin Scalia:

Mr. Williams, how… how do you reconcile the notion of the need for particularized suspicion with the requirements that… you know, when we think of these privacy cases, I suppose every federal judge thinks of the annual financial disclosures that every federal judge has to file every year showing all… all income received by the judge and by his spouse and children.

Now, is there… is your position that that is invalid or… or is there–

Lois G. Williams:

No.

Antonin Scalia:

–some reason why that invasion of privacy, which is much greater because that goes to the entire public, whereas these… these tests just go to… are not published, of course.

They don’t become public.

Lois G. Williams:

Well, it is true, indeed, Your Honor, that there are many invasions of privacy that we suffer.

But I take it even a federal judge, who is subjected to the most rigorous scrutiny and who discloses… who permits disclosure of financial records and even medical records and the like, might well object if it… if it were announced that his home should be subject to search or that his desk perhaps should be subject to search.

This is a search.

That’s the difference.

Antonin Scalia:

If you’re asking me to decide this on… if you’re asking me to decide this on the basis of whether it’s a greater invasion of privacy that… that I should give a urine sample when I’m up for a promotion or a transfer versus whether I should publish my entire financial background every year, you’re going to lose.

[Laughter]

Lois G. Williams:

That’s right.

That’s why I would not make that argument.

[Laughter]

Antonin Scalia:

Well, then–

[Laughter]

Lois G. Williams:

It is… there are–

Antonin Scalia:

I thought… I thought you just had.

Lois G. Williams:

–No, there are–

[Laughter]

There are very… there are many very substantial intrusions that are not searches within the Fourth Amendment.

We do suffer those, and I think in the… the problem in the employment context is perhaps we feel that we have opened ourselves to practically every question, and we have practically no privacy left when we’re applying for a promotion in a job, let us say.

But that’s not so because all of us would draw lines at being personally searched even though we… we do permit vast disclosures of our private information.

That personal search is what distinguishes this from the many other privacy invasions involved.

And let me say that when those other areas of privacy are yielded up, there is even less justification for the search of this sort because we have disclosed, in fact, so much.

Do… does society really require this further indignity that is wrought upon us?

I think the justification decreases in that situation rather than saying, well, we’ve… we’ve… we’ve let our privacy go.

We have no expectation left.

Sandra Day O’Connor:

Do you think that a periodic physical inspection, including urine and blood tests for employees, for example, engineers of trains or pilots of airplanes, is not a reasonable requirement on an ongoing basis?

Lois G. Williams:

Yes.

I think it may be a reasonable requirement in… in the right sort of safety-connected jobs.

Sandra Day O’Connor:

Well, isn’t the government’s argument here that these are in a sense safety-connected jobs at stake in the Customs Service.

People who are out there in the field trying to stop the flow of drugs into this country, for example… should they not… is there no heightened concern for those employees that they also be drug-free, not users or abusers of drugs themselves?

Lois G. Williams:

There is a heightened concern, and I think these are the kind of employees for which we might ask is… is probable cause required or might we do some kinds of searches on reasonable suspicion.

Sandra Day O’Connor:

xxx.

Lois G. Williams:

But let me… but let me say that in a situation like this where we have a 200-year old agency and no incident in this record… none… no study is ever done.

There is not a single incident of… of a safety problem, a bribery or integrity problem owing to employee drug use in that entire history.

Sandra Day O’Connor:

Well, do you think it’s unreasonable for the government to rely on statistics generally for all employees to the extent of drug use to… to develop its concern within this particular agency?

Lois G. Williams:

Yes, I do, Your Honor, for several reasons.

One, there… I have… I have searched.

It is very difficult to find reliable statistics about work places in general, number one.

Number two, we have a work force here about whom we know a great deal.

And I think–

Ms. Williams–

Lois G. Williams:

–it is–

William J. Brennan, Jr.:

–do we know how many applying for promotion were actually tested?

Lois G. Williams:

–We have… the record… the record in the case shows that at the time the case was decided in the Court of Appeals, there were approximately 1,000 persons tested.

William J. Brennan, Jr.:

Had been tested.

Lois G. Williams:

Had been tested, not–

William J. Brennan, Jr.:

Do we know how many of them tested positive?

Lois G. Williams:

–No… no employee tested positive.

None.

Lois G. Williams:

Right.

Since then on the public record last spring, the Commissioner in testimony to Congress stated that some 3,600 tests had been done and five persons tested positive.

We do not know whether any of those were current employees or not.

And we… we have before us the current employees.

So, we… we know at most it was… it was five persons out of 3,600.

I have no information about what has been done since.

But I would say with the size of the Customs Service, even if you assumed that every single one of those was a current employee and we tested everybody next week, that would… that would yield 20 or 21 positives out of a… a work force of 14,000 to 15,000.

Antonin Scalia:

Of course, we don’t know how many might have not applied for promotion or might have left the Service because they simply could not get rid of a drug habit which they knew would turn up in these tests.

Lois G. Williams:

Yes.

There’s no way–

Lois G. Williams:

We do not know that.

But we have, as I say–

Antonin Scalia:

–And that’s really the crucial figure, isn’t it?

Lois G. Williams:

–Yes.

But… but let’s look at that question of deterrence.

When… it’s very difficult to evaluate that when we’ve had no problem that we know of ever.

So, when we talk about deterrence as a feature of the government’s argument, I think it’s very easy to say… and it’s impossible to evaluate.

One can’t really speak meaningfully of deterring a non-problem.

First of all, the tests would have to be highly effective I think to serve as an effective deterrent.

And as we’ve argued in our brief, this particular test is unusually ineffective since it’s given one time and on… on several days’ notice.

But in any event, there’s nothing in the record that would help us evaluate the deterrent effect and note the… the argument that the government makes allows it to claim success either way.

If we catch any people, this test is working; and if don’t catch any people, the test is working.

That… that defies common sense.

Compare it with the magnetometer searches which have been the subject of litigation.

That search, far less intrusive than this one I trust by anyone’s measure has… we… there is… there was clearly something going on that needed to be deterred.

Lois G. Williams:

There was a problem.

It was a… it was a terrible problem.

And we knew it, and we could see it, and we could measure it.

And when magnetometers were instituted all around the country, we no longer had to think when we got on an airplane am I going to end up in Cuba at this time.

William H. Rehnquist:

But must the government wait until the dimension is that of a terrible problem?

Lois G. Williams:

No.

William H. Rehnquist:

Can’t it anticipate?

Lois G. Williams:

It could anticipate it, but it has to be a reasonable anticipation.

This agency has… it’s very clear that… that it has many tools to see whether it has the kind of problem it purports to look for.

It has a very aggressive internal affairs division whose sole reason for being is to investigate the conduct of its employees and it does that with a vengeance.

And it never has turned up any of the kinds of problems that the Commissioner refers to related to employee drug abuse.

Moreover, the Commissioner himself said drug abuse would create these problems in the work force.

And he points to things like theft, health insurance, accidents, lowered productivity, morale problems though every one of those is a visible manifestation.

You can look at the work force and you can see whether you have those sorts of problems.

And you can perhaps use those as the basis for individualized suspicion.

I suggest the analysis this Court employed in Delaware v. Prouse is very appropriate here when it… when it inquired into the effectiveness of the… of the search in service of the stated goal.

And what the Court said is it does… it is not necessarily a matter of common sense that we will catch more people if we just set out to do it without any suspicion.

Isn’t it far more sensible, in fact, to look for the manifestations, to… to… to see what kinds of problems you have bearing in mind that none has emerged?

It’s inconceivable that there should have been some kind of significant problem before that… that has never surfaced.

But look for those kinds of infractions… in Delaware v. Prouse, it was traffic infractions; here any kind of work place infractions… and use those as the basis for individualized suspicion.

In that event, I suggest… and the record I… I think there is not a suggestion in this record to the contrary… that that would be a far more effective way to search out whether, in fact, there is anyone in this work force to be concerned about.

There is… the deterrence rationale seems to me to go to the heart of what the Fourth Amendment is all about.

And if deterrence alone is enough to justify dragnet searching of innocent people, I do not see any principled way that lines can begin to be drawn after that.

Now, perhaps if we are talking about dramatic public safety concerns, that is a place where we would want to draw a line.

But the further we get from that into areas of integrity and responsibility–

Byron R. White:

Why do you think the government sort of… maybe it didn’t start with this, but it… it picked out the Customs Service.

Why that?

Lois G. Williams:

–Well, that’s an interesting question–

Rather than some other–

Lois G. Williams:

–Your Honor.

Lois G. Williams:

We can only speculate.

Obviously there is a reason why they need to be concerned about drug abuse among their employees, and we have never suggested to the contrary.

But the… but the Fourth Amendment question is one of–

Byron R. White:

–Do you think it has something to do, though, with enforcement of the law against the importation of drugs?

Lois G. Williams:

–Yes, of course, it does.

How is that?

Lois G. Williams:

And that… that question… even if the… the rationale is these employees need to be above suspicion, I do not disagree with that point.

They are in a position where they are… they have a very sensitive responsibility that has to do with drugs.

But–

Byron R. White:

Do you think… are you… are you telling me that in all of history, there… they’ve never discovered a faithless Customs employee that is conniving with some importer?

Lois G. Williams:

–They have discovered such.

They have very effective investigations that do turn those up–

Byron R. White:

Well–

Lois G. Williams:

–but never connected with drug abuse on the part of the employee.

Byron R. White:

–Well–

Lois G. Williams:

Never yet.

And that… that is the critical link that’s missing here.

People are subjected to bribery all the time and integrity violations are of great concern.

Byron R. White:

–Well, I would think… I would think… I would think people who use drugs are especially subject to… to… to influence.

Lois G. Williams:

Well, they may… they may be–

Byron R. White:

They have to… they have to… Customs employees don’t… I don’t suppose they’re rich.

Lois G. Williams:

–They’re not, Your Honor.

Byron R. White:

They have to… that’s going to be hard to feed their habit.

So, there’s one way they can do it I suppose is conniving.

Lois G. Williams:

That’s true, but I mean, I think that stands to reason.

Well, it’s not beyond imagination, is it?

Lois G. Williams:

It is not beyond imagination.

That’s right.

But it is… it is… it is a little further removed from… from–

Byron R. White:

Well, all you need is one or two moles in the Customs Service to really cause a lot of problems.

Lois G. Williams:

–But what might subject a person to a bribe are vast numbers of things, Your Honor.

And I take it we would say… we would… we would say the fact that someone might be subjected to a bribe because he is in financial difficulty is our justification for now searching desks, searching homes, tapping phones.

I… I think that the difficulty is that… that a possible drug use does not subject one to a bribe any more than any number of other things that we might think of and that those things we have always understood must be demonstrated to be suspicious in order to justify those kinds of searches.

Byron R. White:

Well, you… you say the Service must be above suspicion.

And yet, you insist on suspicion as the premise for the test.

Lois G. Williams:

I–

Anthony M. Kennedy:

It seems to me, therefore, you say the government has an unattainable goal.

Lois G. Williams:

–I say that I understand the goal that they want their employees to be… to have integrity and to be seen as such.

What I am saying is that the Commissioner said when he promulgated… he just decided to do this.

He just announced it.

There was never any study–

Anthony M. Kennedy:

Can you tell us a little bit about the three categories?

It’s… it’s not quite clear to me the percentage of Customs employees that are covered in the three categories.

There are those who carry arms, those who are involved in the interdiction of drugs, and those who have access to classified material.

Is that… can you tell me what percentage of the Customs force that is?

Lois G. Williams:

–I can tell you, Your Honor, it is not in the record.

It is not, but it is a matter probably that could be compiled from public records.

We know that one-third of the Customs Service’s customs inspectors… they are covered.

That would be 5,000.

We know that virtually every manager is covered.

It is my information that… that probably at least three-quarters of the Customs Service occupy covered positions now.

That… that is a matter of putting together a number of records.

It is clear to us that the justification… the… the catchall justification really… and virtually all of the employees in the Customs Service are categorized as critical-sensitive, which means that… that the justification could apply to virtually all of them.

It has not yet been so applied.

But that… the catchall category is access to confidential information by which is meant sensitive and… and delicate, but not necessarily of a top secret classification which I think is important not to confuse those two.

William J. Brennan, Jr.:

You say that the Commissioner decided upon this program on his own?

Lois G. Williams:

Yes, he did, Your Honor.

He… he… not… not–

William J. Brennan, Jr.:

He didn’t have to get the approval of any agency or otherwise?

Lois G. Williams:

–No, not so far as this record shows and it did precede the executive order that the President issued.

Lois G. Williams:

The… the… this program preceded it.

He… the Commissioner… not only did he not know of any problem in his work force, he didn’t look… he did not study to see whether there was any.

He sought no one’s advice as far as we know, and made no judgment that is anywhere on this record that said that it is necessary to do these searches without probable cause, without individualized suspicion.

He simply announced that he was going to do it.

He announced that he might do it, and then a little later he announced that, in fact, he was going to do it.

And he acknowledged, when he made that announcement, that the Customs employees were known for their integrity in the law enforcement community.

And he announced that drug use in the agency was not the reason for this program.

He did not expect to find a significant problem and, indeed, he has not found a significant problem.

So, why would he do it?

His announced reasons were two: to set an important example in the country’s struggle against drugs, and to show the entire work force the drug screening is a good thing in that struggle.

But it seems to us quite clear that the goals recited in the government’s brief, safe and efficient operation, promoting the integrity of the Service, preserving the agency’s reputation, are fine goals.

They simply were never in jeopardy here.

And… and ironically, the Commissioner may have placed them more in jeopardy when he suggested that now, although there’s no problem, we’re going to start testing.

Now, because these goals were not threatened and because they were not addressed by this program at all except in some very attenuated way… we want to prevent these things from ever arising… we do not see how they can justify the searches… searches that are intrusive of… of innocent persons.

And I’d like to spend a moment, if I can, talking about the nature of the intrusion here because I think it is very easy–

William J. Brennan, Jr.:

Before you do that, may I ask just one question?

Lois G. Williams:

–Surely.

John Paul Stevens:

I understand this case just involves people who are being transferred and promoted.

Lois G. Williams:

Yes.

John Paul Stevens:

And your argument rests very heavily on the past history of these people.

Lois G. Williams:

Yes.

John Paul Stevens:

I take it your argument really would not apply to initial applicants for employment.

Lois G. Williams:

I think… we do not argue for initial applicants.

I believe the balance is somewhat different in that circumstance, and whereas I do believe that… that individuals applying for jobs have significant privacy rights, the government has less means to evaluate them perhaps than it does… certainly than it does current employees.

So–

Lois G. Williams:

So, whether or not that could be justified, it is a… a different balance, a little different balance.

And I think–

John Paul Stevens:

–Do you think the government would have a stronger case as to applicants than it–

Lois G. Williams:

–I think it would have somewhat stronger case, yes.

Byron R. White:

–Well, don’t they… don’t they give physical exams to… to people who want to be a Customs inspector?

Lois G. Williams:

To some… oh, inspectors do have to have what is called a medical certification.

Many of the people covered do not have medical exams.

Byron R. White:

Well, how about the inspectors?

Lois G. Williams:

What they do is they have a… a form, a one-page form, they take to their doctor with things circled that… that say these are the requirements for the job.

And the doctor, one’s own doctor, signs that… that requisite–

Byron R. White:

Well, is there any evidence then to find out if some person is an alcoholic or a drug user?

Lois G. Williams:

–No, not… it is… there is no test done for that.

Byron R. White:

No blood test?

Lois G. Williams:

No, no, not… not… no, not for that.

And if urinalysis is required… it is in some… it is not… a drug screen is not done.

The… the nature of the intrusion in this case is we think twofold.

It… it has to do with both the process of collecting the sample, which we have outlined in our brief, and with the… the laboratory analysis itself.

And recalling that these are good employees, they… they must report to what we have come to call a collection site to give a urine sample in a highly controlled atmosphere closely monitored by a collection site person who has no training or experience in particular whose sole purpose is to prevent cheating and to preserve the chain of custody.

Usually the employee is not directly watched while urinating, but he may be under certain circumstances.

But he must be closely listened to and in all other ways closely observed for signs of unusual or suspicious behavior which is noted in a permanent book.

The sample is then sent to a laboratory for analysis to detect the presence of drugs.

And I have to mention that every single one of these specified drugs but one has licit uses as well as illicit.

Every single one but one.

And all of those legitimate therapeutic uses will have… will be discovered by this test and will have to be justified to a representative of the employer.

So, those employees who take medication for certain kinds of pain, certain kinds of depression, narcolepsy, inflammatory bowel disease, chronic cough, maybe even some cancer treatments, will have to justify their use of these drugs.

Now, the Fourth Amendment protects various interests, among them privacy, bodily integrity and dignity.

And I think each of those is seriously transgressed by this test.

It is a personal search of the contents of one’s bladder.

It is taken under demeaning conditions.

It involves a very sheltered and private function of our person, something many people go to great lengths to avoid attracting any attention to whatever.

Harry A. Blackmun:

Do you think any urinalysis… collection of urine is demeaning?

Lois G. Williams:

No, indeed, Your Honor.

It’s the… it’s the highly controlled and observed circumstances that is… that are particularly demeaning in this case.

Harry A. Blackmun:

You surely have had a physical examination.

Lois G. Williams:

Yes, indeed, Your Honor.

Harry A. Blackmun:

Did you find it demeaning in that respect?

Lois G. Williams:

No, but nobody came into the toilet with me to watch to see whether this, indeed, was my urine.

That is what’s demeaning about this particular test.

The… the intrusion on various aspects of one’s privacy that is wrought by this test far exceeds I think because of those… those demeaning features.

Harry A. Blackmun:

Well, I probably am embarrassed because of my relationship with the medical profession, but I… I wonder a little bit about this super sensitivity about blood tests and urine collection.

Lois G. Williams:

Well, I think my clients, Your Honor, who are standing before this collection site do not confuse what they are about to do with a visit to the doctor.

It is not the same.

The atmosphere is an adversarial, punitive atmosphere.

It is not a trusting, confidential one that we have come to expect in a visit to the doctor which is the most these employees would ever have to do for their employer in a fairly limited way.

I’d like to save a moment, if I can, for rebuttal.

William H. Rehnquist:

Thank you, Ms. Williams.

General Fried, we’ll hear now from you.

Charles Fried:

Thank you, Mr Chief Justice, and may it please the Court:

The Fourth Amendment says that the right of the people to be secure against unreasonable searches and seizures shall not be violated.

Our principal contention here is that what the Customs Service has done is entirely reasonable.

Let me focus in a little bit more on the… on the program we have, and I think it’s very well described in Petitioners’ amici, the AF of L-CIO.

On page 4 of their brief, the AF of L-CIO writes, this program

“applies only to a self-selected subgroup of employees: those who voluntarily apply for a promotion to a new job for which some inquiry into the employees’ fitness for duty must be conducted. “

And then a footnote goes on to say:

“Indeed, of these applicants, only those who are tentatively selected for promotion are required to undergo the test, and before being so required these individuals are permitted to withdraw. “

I would only add that if they do withdraw, this has no employment consequences and they are free to reapply at any time.

It seems to us that this program so described is a very long way from what the Fourth Amendment was originally intended to cover.

Nevertheless… nevertheless… over the years and through many decisions of this Court, it’s quite clear that government programs that implicate privacy and dignitary interests of the individual come within the gravitational force of the Fourth Amendment.

And we don’t dispute that.

What’s also clear, however, is that the further you come from the central case of an abrupt, coercive intrusion upon the individual in a criminal context, the less appropriate it is to think in terms of probable cause and the warrant and the more we’re thrown back on the overarching test of reasonableness which the amendment itself specifically sets forward.

Now, that reasonableness is the product of a balance, a balance of the seriousness of the government’s interest, on one hand, and the intrusion on the individual, its nature, its context, its timing.

John Paul Stevens:

Mr. Solicitor General, may I ask this question?

Is one element in the balance the probability that some useful information will be discovered?

When we talk in… in the normal warrant case probable cause to find something or… is that an element in the balance?

Charles Fried:

It is an element in the balance, and I think that’s an important point to talk about because it’s hard to argue… and nobody seriously argues… that the government does not have a very serious interest in assuring that those who are on the front line of drug interception are not themselves involved in drugs.

Charles Fried:

And that does not mean just on the job, but the weekend before or the week before or the month before.

That’s quite clear.

What is urged against this program and what is said to argue against its reasonableness is that this is not as effective as it might be in weeding out drug users.

But that seems to us a rather curious objection.

We are told that it’s possible to defeat the test.

All you have to do is abstain from drugs for a period of from five days to… we heard Mr. Mann say in the previous case… up to 60 days.

Now it seems to us that the very indefiniteness of that time horizon is going to have an effect.

It will deter persons from applying for the job because they can’t be sure if they have been involved in a drug, that they’re going to be drug-free.

John Paul Stevens:

Mr. Solicitor General, may I interrupt because I don’t think we should talk about applicants.

We’re talking about a group of people who have a track record.

And as your brief points out, they have a 50 to 67 percent capacity under drugs and they have absenteeism and all the rest of it.

And they don’t have it… they have a track record of not disclosing that kind of behavior.

So, isn’t it fair to presume that there is very… that the incidence of drug use among the people that are going to be tested is very, very small?

Charles Fried:

The incidence is certainly small, and we do not contest that.

It is not, however, nonexistent.

John Paul Stevens:

Well, but your tests show it to be nonexistent.

Charles Fried:

Not nonexistent.

There are very small number of cases.

We have, in fact–

John Paul Stevens:

Not among… among transferees?

Charles Fried:

–Yes, sir.

The most recent information, which I’ll be happy to lodge with the Court–

John Paul Stevens:

Let me just first interrupt and ask you.

As to what was in the record at the time the case was tried, it was nonexistent, wasn’t it?

Charles Fried:

–At the time the case was tried, I believe that there were no positives which were shown up in the transferee population.

Since that–

Byron R. White:

But did you… but at that time was there any record of people who withdrew or who… who otherwise would have applied for a transfer?

Charles Fried:

–Well, I don’t think… I don’t think records were kept–

Byron R. White:

Yes, of that.

Charles Fried:

–of people who withdraw And in fact it’s rather important that they not be kept–

Byron R. White:

Yes.

Charles Fried:

–because the withdrawal process is one which is quite free.

Byron R. White:

Well, that might… if there were a lot of withdrawals, I suppose that might be one explanation you didn’t find anybody.

Charles Fried:

That’s right, or people who simply don’t apply.

Since the time the case was tried, there have been a small number of persons who were uncovered.

And I would say that even with–

William J. Brennan, Jr.:

Would that… would those be the figures that Ms. Williams gave us?

Charles Fried:

–I think so.

What… what we have is that… that two internal applicants tested positively for marijuana, and I believe Ms. Williams mentioned that there were five instances in her brief.

It’s a very, very small number.

I don’t think we need to quarrel about what the exact number is.

It’s a very small number, but it is not zero.

And–

William H. Rehnquist:

How long had the program been in effect at the time the case was tried?

Charles Fried:

–I think about somewhat between a year and two years, Mr. Chief Justice.

Our contention–

John Paul Stevens:

But, again, let me just… let me just… so you have time to address it.

If in the probable cause situation we think there ought to be maybe a 35, 40, 50 percent chance that the warrant will produce incriminating evidence and you have a test of two people out of a couple of thousand or whatever it is, is that a sufficient probability you think to be reasonable?

Charles Fried:

–I think that you’re comparing, with respect, apples and oranges because the point of probable cause is to focus and… to focus and to confine discretion.

In this case there is no need to confine discretion because the program specifies the threshold and persons voluntarily approach that threshold.

John Paul Stevens:

But are you saying then that the probability of finding something is not relevant to the analysis?

Charles Fried:

The probability is not relevant to the… I have… I have–

John Paul Stevens:

That isn’t what you said earlier.

That’s why–

Charles Fried:

–No.

My point is that if it has any chance at all… and I think it does have a chance… of deterring applicants and catching the occasional person, that is sufficient given the extreme sensitivity of these positions and given the need to assure the public that persons who are engaged in drug interception have been willing to go through what I would describe as a kind of right of passage to indicate that they know and that the Service knows that their job is entirely incompatible with any involvement with drugs whatsoever.

And this is a way of doing that.

It is a way of–

John Paul Stevens:

–Are they compelled to file financial disclosure statements such as Justice Scalia suggested?

Charles Fried:

–Well, of course, some of these people–

John Paul Stevens:

I mean, do you regularly look at their bank accounts and find out what their financial status is?

Charles Fried:

–No, we do not, but there is–

xxx.

Charles Fried:

–inquiry made into those things.

Anybody who suffers a background check… there are–

John Paul Stevens:

No.

I’m talking about after they’re on the job and when they apply for a transfer or promotion.

I would think an elementary thing you’d want to know if they’re susceptible to bribery is what their financial condition is.

Charles Fried:

–It is I think a normal part of the background check involved in a transfer to a sensitive position, if you’re not in one already, is to ask do you know… and you will ask this rather widely of friends, acquaintances, families… do you know if the person lives beyond their means.

That’s a standard FBI type of question which is asked of many, many people seeking government–

John Paul Stevens:

But do you conduct any searches to find that information?

This is a search.

I guess everybody agrees to that.

Charles Fried:

–Well, we think that it’s not necessary to make an argument about whether it’s a search.

We’re prepared to concede it’s a search.

We think it’s pretty much on the border of a search and no search.

It’s a very marginal kind of search.

John Paul Stevens:

Let me put it differently.

Do you think you have the right to make a search to find out about the financial information of all your… your agents?

Charles Fried:

Not any kind of search, not of their desks, not of their homes, no, I don’t think we have that.

But of their persons.

Charles Fried:

Not without much greater threshold circumstances than we have here.

It is an important part of our argument not only that the government’s need is an important one, but that intrusion is minimal.

John Paul Stevens:

Well, your argument then is that the intrusiveness of this search is much less than the intrusiveness of a search that would reveal financial information.

That’s what you’re arguing.

Charles Fried:

Indeed.

John Paul Stevens:

Yes.

Charles Fried:

Yes, it is.

This is a very minimally–

John Paul Stevens:

Which I might point out is the exact opposite of the position Justice Scalia suggested earlier.

Charles Fried:

–Justice Scalia, I think, was saying that the financial search which he and I and you also undergo regularly is far more intrusive.

This is much less intrusive.

This is much less intrusive, and being much less intrusive, requires a correspondingly lesser degree of urgent necessity.

That… that is, indeed, our contention.

Anthony M. Kennedy:

Are you saying, General Fried, that one of the principal interests the government has here is to vindicate the idea and the image of an elite corps within the government?

Charles Fried:

Well, yes, I think one can put that in a way which makes it seem rather showboating and insubstantial or something which is very, very sensible.

I think there’s a sensible aspect here and that is these are people who are involved personally in interception of drugs.

And they should, therefore, not be the customers of the very illicit trade which they are the front line of interdicting.

And this is a way of indicating that any involvement, not just the day before, but perhaps up to 60 days, is incompatible, and it’s really one of the most secure ways of showing that there is no such involvement.

Sandra Day O’Connor:

Well, Mr. Fried, I guess this program though extends to employees other than those on the front lines of drug interdiction, for example, in the classified information area.

Apparently it extends even to messengers and food service workers.

Charles Fried:

The three categories which the program designates are persons actually involved in drug interception, persons who carry or use firearms and persons who have access to classified information.

Now, it may be that certain individuals have been included under those major categories improperly or who shouldn’t have been.

And then we could have a discussion about that, and that would be a basis for a complaint if somebody said that, look, I… I carry sealed envelopes and I shouldn’t be included.

And maybe they should and maybe they shouldn’t.

Sandra Day O’Connor:

Is this purely a facial challenge so that we leave room for those degrees of difference–

Charles Fried:

The challenge has not been litigated at all on the basis that it’s a little bit over-inclusive here and might have been a little bit more… more inclusive there.

So, it is in the nature of a facial challenge.

As we consider the intrusion… and this is the point that Justice Stevens was concerned about… it is minimally intrusive for a number of reasons.

First, the very fact of self-selection makes an important point about how unintrusive it is.

You choose the time of your application.

You are given advanced warning, and if you find this offensive or threatening–

John Paul Stevens:

–But, Mr. Solicitor General, that argument would apply to financial searches too.

Charles Fried:

–It would apply to financial searches which are much more intrusive and much more–

John Paul Stevens:

But why… why is… you were going to explain why this is less intrusive than a financial search and give… give me an argument that would apply equally to both.

Charles Fried:

–Well, it’s much less intrusive on another basis and that is that these are persons who are subject to a large number of other background checks and–

John Paul Stevens:

Also true with respect to financial searches.

Charles Fried:

–Also true of financial searches.

And also, of course, it is a search which is akin to the physical examination, which Justice Blackmun was talking about.

So, the actual process of collection of the urine is hardly something which people are not familiar with.

Charles Fried:

A great deal was made about the humiliating circumstances of the collection process, and I’d like to say something about that.

No doubt the process of urination is something which has a customary aura of privacy in our society, and that’s… we don’t quarrel with that.

We don’t try to belittle it.

In fact, the HHS regulations under which this and all employee drug… federal employee drug testing must take place was developed as a result of a rulemaking procedure in which these very concerns, these very privacy, dignitary concerns were taken into account and there was an adjustment.

Judge Gezell noted in a case involving random drug testing of air traffic controllers that this program was designed to somehow accommodate and acknowledge these dignitary concerns.

At first it was thought that the collection would take place under direct observation, and as a result of hearing exactly the kind of objections which Ms. Williams eloquently put forward, the government stepped back.

It averted its eyes, as it were, and said, no, there will not be direct observation unless there’s some reason to believe that something unusual is going on.

Now, it seems to me that that very stepping back is exactly the kind of acknowledgement that there is a privacy concern which should go a long way to assuage the sense that something unpleasant is going on.

There… you go into a stall, and that… it’s an area which is designated to be private.

Now, it’s not the most private thing in the world, but it is more private than it might have been, and it is made private.

There is a kind of a tip of the hat to the proposition that, look, we understand this might be embarrassing, and we’re trying to acknowledge that.

And that goes I think a long way to saying we’re not going to just run roughshod over you.

We understand this is disturbing and we try to accommodate to that.

Then finally, there is an objection to the search of the specimen itself.

We see in the briefs the phrase that this is a periscope into the private lives and off-duty behavior of the employees.

Now, that’s a striking metaphor, but it’s both misleading and fallacious.

The tests are designed to come up with only one thing: evidence of controlled substance use.

It will not show any other kind of substances.

That’s the first thing.

Second, of course, many of those substances might be used for legitimate purposes under a doctor’s prescription, for instance.

That’s correct.

The information that you give the test persons about that is something which, if you… if you wish, you may withhold until the time that you meet the medical review officer, and you may at that time say, well, it’s true.

It’s come up positive for opiates, but I am taking cough medicines of that sort, and here’s the doctor’s prescription.

And that information, unless the MRO concludes that it’s not true or that you are a drug user… that information stops there at the medical review officer’s desk.

It does not get to the agency.

And therefore, this periscope is designed to allow the employer to see only one thing: illegal drug use.

And we suggest that the employer is entitled to inquire into that.

They inquire of the person under penalties of perjury, of his neighbors, of his family, and we think may also inquire of a urine sample.

Sandra Day O’Connor:

Mr. Fried, do you take the position that the government can do that for all its employees or only those in certain, select categories?

Charles Fried:

We do not take the position that it may do so for all its employees because we don’t have that case before us.

Charles Fried:

We think it’s very important that the Court–

Sandra Day O’Connor:

To the extent that you rely on efficiency of government operations as a rationale, it would certainly extend, it seems to me, to everyone.

Charles Fried:

–That is an element of our argument.

It is not by any means the whole of our argument.

I think it’s terribly–

Sandra Day O’Connor:

Well, that should be a concern for us, should it not?

Charles Fried:

–It certainly should be a concern.

We have essentially three kinds of drug testing programs.

There’s a drug testing program which is triggered by an alarming incident or some kind of suspicion, and you’ve just had a case on that argued to you.

We have threshold drug testing programs, and that’s what this is, where a person freely… I won’t use the word “voluntarily” because that’s legally freighted… freely comes up to a threshold, applies for a job, applies for a… for a promotion.

That’s this case.

And then there’s the random kind of testing, and that case is not before you.

We think it’s very important that, though inevitably you will deal in categories of cases, that the Court consider the kind of case that it actually has with the kind of record and the kind of justification that is present.

If we have a case in which a much larger population is tested or where the method is random drug testing, then I would hope the Court will consider that case on the record that will then be established after it has been sorted over and digested by courts below.

But we ask neither that we get a hint or a signal helping us out in those cases, but we hope that nothing will be said to preclude them either.

That really lies in the future.

No doubt both the Customs Service and the Department of Transportation are contemplating much more extensive programs.

And those programs will have to await the day of review in the Department of Justice and review in the lower courts.

I would hope that the Court will consider this case with this case’s justification and its rather special and urgent and frankly symbolic significance because we are here dealing with the borders across which these drugs must come.

William J. Brennan, Jr.:

Mr. Solicitor General, this… this program is limited to urine testing, isn’t it?

Charles Fried:

Yes, it is.

William J. Brennan, Jr.:

Was there any consideration of blood testing and any reason for not including it?

Charles Fried:

There was no consideration of blood testing, and one reason is that the urine test is really pretty good in showing not current impairment because current impairment is not our focus.

Our focus is any involvement with drugs at all.

We do not accept the notion–

William J. Brennan, Jr.:

Well, I gather urine testing may disclose something… consumption as recently as back as 60 days.

Is that it?

Charles Fried:

–Yes, it… it’s curious.

Sometimes we’re told that that fact means this is a bad program and sometimes we’re told that this is a good program.

William J. Brennan, Jr.:

Well, was that fact one of the reasons that… for the choice of urine testing?

Charles Fried:

Absolutely, yes, because the urine testing will show that this person does use drugs.

And we think the drugs are both used surreptitiously, which is why people who use them may escape notice or observation, but it’s also insidious.

And people who used drugs on one occasion are… may be inclined to use them on other occasions, and we think that a 60 day horizon is a good thing.

It catches people.

We think that’s excellent.

And if it deters some people from applying, that’s good too.

We don’t think that’s a bad result.

That’s a good result.

If there are no further questions–

John Paul Stevens:

I have one more, if I may.

You said this case has symbolic significance.

What did you mean by that?

Charles Fried:

–What I meant by that is that the Customs Service is, indeed, entitled to take a very fine filter, which this is, to show to itself, to its employees and to the public that persons who will be in… who will be on the border across which these drugs come are persons who, as far as we can tell, are not themselves involved in drugs.

We don’t do everything, but here is a simple, nonintrusive, rather familiar kind of step that’s taken which gives some measure of assurance.

Of course, other things, but they are more draconic, would give greater assurance.

It is a balance.

It’s not very intrusive, and it gives a fair measure of assurance.

John Paul Stevens:

That symbolic assurance would be precisely the same for searches for financial information too.

Charles Fried:

Well… and, of course, higher level employees must give that financial information and financial disclosure forms.

They don’t consent to a search of their home, but we think that’s much more intrusive.

So, the… the degree of the intrusion is an important element in the balance.

I don’t try to–

John Paul Stevens:

But… but the symbol that you seek would really support a very wide range of investigative activity.

Charles Fried:

–Oh, it would support it–

John Paul Stevens:

To the extent that you rely on that argument.

Charles Fried:

–if the other factors were–

Yes.

Charles Fried:

–present, if the symbol were important, if the filter was effective, which we think it is, and if it was as minimally intrusive as this one is and, of course, with the very important element that you present yourself for this test, you volunteer for these positions.

I’m not saying this is consensual, but you do volunteer for these positions, and you may withdraw your application any time prior to the test.

Put all of that together, and I think we have something which is imminently reasonable.

Charles Fried:

I thank the Court.

William H. Rehnquist:

Thank you, General Fried.

Ms. Williams, you have two minutes remaining.

Lois G. Williams:

Thank you, Mr. Chief Justice.

With that time, I would like to make just a couple of points.

These employees… the bulk of them are… do very important jobs, but customs inspectors are GS-5, 7 and 9.

They are hardly to be compared with the… the jobs that carry the greatest responsibility in government.

It’s responsible, but as Your Honor’s question points out, it is very hard then to see where it would end.

I would like to… to say that this is one search where innocent persons have a great deal of reason to be apprehensive.

And it is notice that what they… what they are going to do does not really cure that problem.

Will I be able to do what is required of me at this test, how will I feel about it, what if a mistake is made, are entirely reasonable apprehensions that everyone facing this test must have.

Now, I would like to say in closing that, of course, the employer is entitled to inquire about all sorts of things when one applies for this kind of job.

The question is saying that I have an interest in whether or not you ever used drugs… does that give me the right to conduct searches to find out whether you are telling me the truth?

And one of the most unsettling arguments the government makes is we can take no risk.

We can take no risk at all.

The margin for error built into an individualized suspicion requirement is unacceptable in… in the situation we have here.

The margin of error is unacceptable or singularly unsuited, as I believe the brief says.

But that is a judgment we are not free to make today.

We are no… we cannot say that we can no longer afford the margin of error that is built into the Fourth Amendment.

William H. Rehnquist:

Thank you, Ms. Williams.

The case is submitted.