National Treasury Employees Union v. Von Raab
Decided on Mar. 21, 1989; 489 US 656


A. Issues Discussed: Search and seizure

B. Legal Question Presented:

Is it a violation the Fourth Amendment for the United States Customs Service to require a urinalysis test from employees who seek transfer or promotion to certain positions?


A. Background:

"In December 1985, respondent, the Commissioner of Customs, established a Drug Screening Task Force to explore the possibility of implementing a drug-screening program within the Service. After extensive research and consultation with experts in the field, the task force concluded that 'drug screening through urinalysis is technologically reliable, valid and accurate.' Citing this conclusion, the Commissioner announced his intention to require drug tests of employees who applied for, or occupied, certain positions within the Service...

In May 1986, the Commissioner announced implementation of the drug-testing program. Drug tests were made a condition of placement or employment for positions that meet one or more of three criteria. The first is direct involvement in drug interdiction or enforcement of related laws, an activity the Commissioner deemed fraught with obvious dangers to the mission of the agency and the lives of Customs agents. The second criterion is a requirement that the incumbent carry firearms... The third criterion is a requirement for the incumbent to handle 'classified' material...

The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and phencyclidine...

Customs employees who test positive for drugs and who can offer no satisfactory explanation are subject to dismissal from the Service. Test results may not, however, be turned over to any other agency, including criminal prosecutors, without the employee's written consent.

Petitioners, a union of federal employees and a union official, commenced this suit in the United States District Court for the Eastern District of Louisiana on behalf of current Customs Service employees who seek covered positions. Petitioners alleged that the Custom Service drug-testing program violated, inter alia, the Fourth Amendment. The District Court agreed...

A divided panel of the United States Court of Appeals for the Fifth Circuit vacated the injunction."

On certiorari the US Supreme Court affirmed in part and vacated in part the judgment of the US Fifth Circuit Court of Appeals.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by Stephen H. Sachs, Carl Willner, John A. Powell, Steven R. Shapiro, Arthur B. Spitzer, and Elizabeth Symonds; for the American Federation of Labor and Congress of Industrial Organizations et al. by Joe Goldberg, David Silberman, Laurence Gold, Edward J. Hickey, Jr., Thomas A. Woodley, and Richard Kirschner; for the Coalition of California Utility Workers by Glenn Rothner; for the Fraternal Order of Police, Grand Lodge, by James E. Phillips and John R. Fisher; and for the New Jersey State Lodge, Fraternal Order of Police, by Jay Rubenstein, Janemary S. Belsole, and Stuart Reiser.

Lois G. Williams argued the cause for petitioners. With her on the briefs was Elaine D. Kaplan.

Briefs of amici curiae urging affirmance were filed for the California Employment Law Council by Paul Grossman; for the College of American Pathologists by Jack R. Bierig; for the Equal Employment Advisory Council by Robert E. Williams, Douglas S. McDowell, Stephen C. Yohay, and Garen E. Dodge; for Pharmchem Laboratories, Inc., et al. by Nelson G. Dong; and for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and Vicki S. Marani.

Solicitor General Fried argued the cause for respondent. With him on the brief were Assistant Attorney General Bolton, Deputy Solicitor General Merrill, Deputy Assistant Attorneys General Spears and Cynkar, Lawrence S. Robbins, Leonard Schaitman, Robert V. Zener, and James H. Anderson.


"In Skinner v. Railway Labor Executives' Assn... we held that federal regulations requiring employees of private railroads to produce urine samples for chemical testing implicate the Fourth Amendment, as those tests invade reasonable expectations of privacy. Our earlier cases have settled that the Fourth Amendment protects individuals from unreasonable searches conducted by the Government, even when the Government acts as an employer, and, in view of our holding in Railway Labor Executives that urine tests are searches, it follows that the Customs Service's drug-testing program must meet the reasonableness requirement of the Fourth Amendment.

...[O]ur cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the Government's interests to determine whether it is impractical to require a warrant or some level of individualized suspicion in the particular context.

It is clear that the Customs Service's drug-testing program is not designed to serve the ordinary needs of law enforcement. Test results may not be used in a criminal prosecution of the employee without the employee's consent. The purposes of the program are to deter drug use among those eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug users to those positions. These substantial interests, no less than the Government's concern for safe rail transportation at issue in Railway Labor Executives, present a special need that may justify departure from the ordinary warrant and probable-cause requirements...

We hold that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm, is reasonable. The Government's compelling interests in preventing the promotion of drug users to positions where they might endanger the integrity of our Nation's borders or the life of the citizenry outweigh the privacy interests of those who seek promotion to these positions, who enjoy a diminished expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those positions. We do not decide whether testing those who apply for promotion to positions where they would handle 'classified' information is reasonable because we find the record inadequate for this purpose."

The US Supreme Court affirmed in part and vacated in part the judgment of the US Fifth Circuit Court of Appeals.

Justice Vote: 4 Pro vs. 5 Con

  • Kennedy, A. Con (Wrote majority opinion)
  • Rehnquist, W. Con (Joined majority opinion)
  • White, B. Con (Joined majority opinion)
  • Blackmun, H. Con (Joined majority opinion)
  • O'Connor, S.D. Con (Joined majority opinion)
  • Marshall, T. Pro (Wrote dissenting opinion)
  • Brennan, W. Pro (Joined dissenting opinion)
  • Scalia, A. Pro (Wrote dissenting opinion)
  • Stevens, J.P. Pro (Joined dissenting opinion)

The ACLU, as amicus, urged reversal of the U.S. Fifth Circuit Court of Appeal's judgment; the Supreme Court affirmed in part and vacated in part in a 5-4 vote, giving the ACLU an apparent loss.