O'Connor v. Ortega, 480 U.S. 709 (1987), is a United States Supreme Court decision on the Fourth Amendment rights of government employees with regard to administrative searches in the workplace, during investigations by supervisors for violations of employee policy rather than by law enforcement for criminal offenses. It was brought by Magno Ortega, a doctor at a California state hospital after his supervisors found allegedly inculpatory evidence in his office while he was on administrative leave pending an investigation of alleged misconduct. Some of what they uncovered was later used to impeach a witness who testified on his behalf at the hearing where he unsuccessfully appealed his dismissal.
Although lower courts had considered the issue, it was the first time the Supreme Court had. By a 5–4 margin, the Court ruled that public employees retain their Fourth Amendment rights. Justice Sandra Day O'Connor's plurality opinion established an "operating realities" test for future courts to consider when public employees challenged searches during investigations, reflecting the lower reasonable suspicion standard the government had to meet as an employer. That did not establish binding precedent, since Antonin Scalia argued in a separate concurring opinion that her standard was too vague, and that the same searches which would be reasonable for a private employer were proper when conducted by their public counterparts. Harry Blackmun wrote for four dissenting justices that the search was clearly an investigatory one and thus a breach of the doctor's privacy.
Since it could not decide how to apply that standard to Ortega's case as the record at that time did not establish whether the entry into Ortega's office had been for search purposes or not, the majority remanded the case to the district court. Eleven more years of litigation followed. At some points during it Ortega had to represent himself, and the Court itself had taken the unusual step of inviting Joel Klein to argue Ortega's case before them. It went back and forth between the district and appellate courts twice. Ortega finally prevailed after a jury trial in the late 1990s, and the Ninth Circuit denied Ortega's superiors their appeal.
Despite the two different standards resulting from the split five-justice majority, lower courts have generally followed O'Connor's "operational realities" test in future cases involving actual searches. Observers thought the justices might resolve the conflict the next time a similar case of public employees alleging a search violated their Fourth Amendment rights came before it. When it did, in 2010's Ontario v. Quon, they declined to do so, leaving the matter open for yet another future Court.
Underlying dispute
In March 1981, Dr. Ortega, for 17 years the head of the psychiatric residency program at Napa State Hospital, a mental hospital in Napa, California, purchased a new Apple II computer to use in running the program. Half of the money for it had been donated by some of the residents; Ortega covered the rest. A month later, he asked Dr. Dennis O'Connor, the hospital's executive director and his superior, to sign some thank-you letters to the residents who had made contributions, and to authorize some purchase orders for peripherals and other accessories for the computer.
O'Connor was not sure whether the computer had been properly donated to the hospital, and hesitated to sign the letters. Two months later, Ortega suspended a resident for failing to report for a rotation. The resident complained to Dorothy Owen, the hospital's personnel director, that Ortega was retaliating against him for not only having not contributed to the purchase of the computer but advising other residents to ask him for their money back.
In late July, Owen told O'Connor of the resident's complaint. O'Connor asked Richard Friday, the hospital administrator, to begin an investigation into the resident's allegations specifically and the purchase of the computer generally. He gave Friday and his investigative team broad authority, including permission to search Ortega's office. The hospital otherwise had no policy on such searches.
O'Connor asked Ortega to take administrative leave the next day. Ortega instead received O'Connor's approval for two weeks of paid vacation, after which the administrative leave began. O'Connor told Ortega not to return to the hospital without his permission during his vacation. During the time Ortega was on vacation, Friday had the lock changed and kept the key in his own office.
When Ortega's vacation ended, O'Connor sent a letter to Ortega informing him he was now on paid administrative leave, and extending the restriction on visits to the hospital. Before Ortega had received it, he returned to the hospital. Finding his office door locked and unable to open it himself, he took the computer, then in an unsecured nearby room, home to work with it there, as he had done on occasion in the past.
Upon learning of this, O'Connor called the hospital police, believing that the computer was state property and thus Ortega had stolen it. At some other point during the time Ortega was on vacation and leave, a staff psychiatrist who ran a support group for residents told O'Connor about complaints of possible sexual harassment on Ortega's part from two female residents. It was not clear whether this took place before or after at least one thorough, highly intrusive search of Ortega's office. Materials were removed from Ortega's office, boxed and stored when the security guard performing the inventory found it too difficult to sort out Ortega's property from the state's.
On a separate visit to Ortega's office, Friday found several items—a Valentine, suggestively posed photo and inscribed book of love poetry—sent to Ortega several years earlier by a former resident. After the hospital fired Ortega in September, he appealed to the State Personnel Board. When the former resident testified on Ortega's behalf during the hearing, these items were introduced in an attempt to impeach her.
Owen asked Ortega after the firing if he wanted his personal possessions from his office returned. He did not. By spring of 1982 he had changed his mind. In response to another request, Asher Rubin, the deputy attorney general who had represented the state before the Personnel Board, told him he could make copies of his personal papers but could not keep the originals, nor any of his other personal property.
Litigation
Ortega retained an attorney and filed a Section 1983 suit against O'Connor (who had now become director of the California Department of Mental Health), Owen, Friday, other parties and the state shortly afterwards in federal court, seeking $750,000 in compensatory and punitive damages. In addition to the violation of his Fourth Amendment protections against unreasonable search and seizure, he made tort claims for invasion of privacy and breach of covenant of good faith and fair dealings under California law. The defendants argued that they had entered Ortega's office and gone through the contents of his desk purely to inventory property and separate state-owned items from the doctor's personal possessions, which it claimed was standard practice when employees had resigned or been terminated. Both sides moved for summary judgement, which Judge John P. Vukasin Jr. granted to the defendants on all claims. It found that the entry into Ortega's office had been for the purpose of securing state property for use by a successor.
Ortega appealed to the Ninth Circuit. In 1985 a three-judge panel unanimously reversed the district court on the search but upheld it on the state-law tort claims. "The entry into the office seems to have been for no other purpose than to secure evidence for use in the ongoing investigation of Ortega," Judge Dorothy Wright Nelson wrote." While the state had said that the entry to the office was not intended as a search, she noted that at the time the doctor had not yet been fired or resigned but was merely on administrative leave. Nor did this seem to have been regularly undertaken in situations where it did apply.
After that finding, Wright considered whether such a warrantless search was reasonable under the Fourth Amendment. She applied the two-pronged test from the Supreme Court's 1967 Katz v. United States decisionKatz v. United States, . to establish whether Dr. Ortega had a reasonable expectation of privacy over the contents of his desk and office. First, did he have a subjective expectation that they would be left undisturbed by others, and second, would that expectation be one that society would consider reasonable and respect?
On the first prong, he had occupied the office for all 17 years of his employment. He kept within his desk not only personal papers and effects but confidential patient records. He had believed he had the only key, and was not aware of any other time during his employment at Napa in which his office had been entered without his permission. In Mancusi v. DeForte,Mancusi v. DeForte, . the Supreme Court had held that an employee can have a reasonable expectation of privacy over his or her desk at work from searches by law enforcement.The Court, in that case, overturned the conviction of a Long Island labor union official on corruption and racketeering-related charges since the principal evidence had been taken from his desk by investigators who only had a subpoena.
Two cases from the Third Circuit, with direct similarities to Ortega's, argued for the reasonableness of his privacy expectation. In one, the presence of sensitive and confidential documents within a deskIn that case, a member of the Fair Lawn, New Jersey, school board had opened a guidance counselor's desk drawer and found the original draft of a pseudonymously published cartoon that ridiculed the board. was held to strengthen the privacy expectation; and in the other, the personal lock that a police officer had used for his department locker led to the suppression of a sawed-off shotgun seized by federal agents.
In the latter case, the department had also lacked a formal policy on whether the lockers could be searched, as had been the case at Napa. This Wright used to distinguish it and Ortega's case from other precedentsUnited States v. Bunkers, 521 F.2d 1217 (9th Cir. 1975); United States v. Collins, 349 F.2d 863 (2d Cir. 1965), cert. denied, and where warrantless searches of public employees' lockers, jackets or backpacks had been upheld due to broadly disseminated and actively implemented policies that such searches could occur at any time. "Here, Napa had never instituted surveillance or searches and had no general inspection policy that might have defeated Ortega's expectation of privacy in his office," she concluded.
The appeals court ordered the district court to enter judgement in Ortega's favor on that issue and hold proceedings to fix damages. The pendent state-law claims had not been filed in a timely fashion, and the panel affirmed that part of the summary judgement.
Before the Court
The state of California's certiorari petition was granted by the Supreme Court in 1985. Since he was representing himself, Ortega filed his own brief. The Court invited Joel Klein, the future New York City Schools Chancellor then in private practice, to argue Ortega's case,. and he also filed an amicus curiae brief on Ortega's behalf.
The appellants' brief was filed by California Attorney General John Van de Kamp and several of his assistants. Solicitor General Charles Fried filed an amicus brief on behalf of the federal government urging reversal. The American Civil Liberties Union and American Federation of State, County and Municipal Employees urged affirmance in their amici. Oral arguments were held in October 1986.
Petitioners' oral argument