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NFFE v Vilsack 11-5135

NFFE v Vilsack 11-5135

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 23, 2012Decided June 8, 2012No. 11-5135N
ATIONAL
F
EDERATION OF
F
EDERAL
E
MPLOYEES
-IAM,A
PPELLANT
v.T
HOMAS
J.
 
V
ILSACK
,
IN HIS OFFICIAL CAPACITY AS
S
ECRETARY OF
A
GRICULTURE AND
T
HOMAS
L.
 
T
IDWELL
,
IN HIS OFFICIAL CAPACITY AS
C
HIEF OF THE 
U
NITED
S
TATES
F
OREST
S
ERVICE
,A
PPELLEES
Appeal from the United States District Courtfor the District of Columbia(No. 1:10-cv-01735)
Stefan P. Sutich
argued the cause and filed the briefs forappellant.
 Mark W. Pennak 
, Attorney, U.S. Department of Justice,argued the cause for appellees. With him on the brief were
TonyWest 
, Assistant Attorney General, and
 Leonard Schaitman
,Attorney.
 R. Craig Lawrence
, Assistant U.S. Attorney enteredan appearance.Before: R
OGERS
and K
AVANAUGH
,
Circuit Judges
, andG
INSBURG
,
Senior Circuit Judge
.
 
2Opinion for the Court by
Circuit Judge
R
OGERS
.Dissenting opinion by
Circuit Judge
K
AVANAUGH
.R
OGERS
,
Circuit Judge
: The National Federation of FederalEmployees (“the Union”) challenges the constitutionality of arandom drug testing policy applicable to all employees workingat Job Corps Civilian Conservation Centers operated by the U.S.Forest Service. The district court granted summary judgment infavor of the Secretary of Agriculture and the Chief of the U.S.Forest Service (hereinafter “the Secretary”) and denied theUnion’s request for a preliminary injunction. Upon
de novo
review, we conclude that the Secretary has failed to demonstrate“special needs” rendering the Fourth Amendment requirementof individualized suspicion impractical in the context of JobCorps employment.
See
 
Vernonia School Dist. 47J v. Acton
,515 U.S. 646, 653 (1995);
 Nat’l Treasury Emps. Union v. Von Raab
, 489 U.S. 656, 665–66 (1989). Although identifyinggovernmental interests in the students’ abstention from drug useand in their physical safety, the Secretary offered no foundationfor concluding there is a serious drug problem among staff thatthreatens these interests and thus renders the requirement forindividualized suspicion impractical. Rather, the Secretary’sevidence to date suggests the contrary. Because the Secretaryhas offered a solution in search of a problem, the designation of all Forest Service Job Corps Center employees for random drugtesting does not fit within the “closely guarded category of constitutionally permissible suspicionless searches,”
Chandler v. Miller 
, 520 U.S. 305, 309 (1997). Accordingly, we reverseand remand the case for proceedings consistent with thisopinion.
 
3
I.
The Department of Labor (“DOL”) administers the JobCorps program at approximately 124 residential and non-residential centers across the United States.
See
29 U.S.C.§ 2887(a), (b) (2006). These centers include twenty-eight JobCorps Civilian Conservation Centers operated by the ForestService, a unit within the Department of Agriculture (“USDA”).
See
 
id.
§ 2887(c)(1); 36 C.F.R. § 200.1(a) (2012); 7 C.F.R. pt.15, subpt. A, app. (2012). As described by Larry J. Dawson, theNational Director of the Forest Service Job Corps program,these Centers offer, in addition to education, vocational trainingand counseling, “programs of work-based learning to conserve,develop, and manage public natural resources and publicrecreational areas or to develop community projects in thepublic interest,” Decl. Larry J. Dawson ¶ 3, Nov. 5, 2010, andare located generally in “remote, rural areas,”
id.
5;
see
29U.S.C. § 2887(c)(1).All twenty-eight Forest Service Job Corps Centers areresidential. Students, ages sixteen to twenty-four, live and work at the Centers except during winter and summer breaks,although some vocational training and other activities occur off site; they are prohibited from keeping personal vehicles on site.When they first enroll, students are advised of the Job CorpsZero Tolerance Policy, 29 U.S.C. § 2892(b)(2)(C)(ii) (enactedin 1998), and if they fail an initial drug test, they are placed ina special training program and must take another drug testwithin forty-five days; a second positive test for drug use resultsin the student’s expulsion from the Job Corps. Students remainsubject to suspicion-based drug testing while in the program.Any Center employee can report suspicion of student drug use,and residential staff periodically search for illegal drugs andalcohol in student residential areas and in students’ luggage

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