# Petition — New York City Transit Authority v. Beazer > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0905%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 440 U.S. 568 ## Text In THE Supreme Court of the United States Octoser Term, 1977 No. 44 ~ 1427 ee New York City Transit Autuority, et al., Petitioners, —Y.— Cart Beazer, et al., Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT AupHonse E. D’AmBROSE Attorney for Petitioners New York City Transit Authority, et al. 370 Jay Street Brooklyn, New York 11201 Joan OFFNER Evcene FRe1pus Of Counsel ——— TABLE OF CONTENTS PAGE NE TNE icsicictntseinnctipentnessicineninsderemmeeneenuitiiitiainiisaneaneninimatibitde 2 I increta ia adeeina dsc ncida tether alias 3 UN i accel iateaeeiadctamintidatanladiinitie 3 Constitutional and Statutory Provisions Involved ........ 4 I a Ge cccnistenteniipnanrttinmaninenninen 4 Reasons for Granting the Writ ......0........-...cccccseseseeeseeees 6 I—This case involves issues similar to issues now pending before this Court in another case ........ 6 IIl-—-The court below has decided substantial and important federal questions in a way which is not in accord with applicable decisions of this SUITED cecasessccerinashinunticdtntinseidiniinetidiliibiaaniennnmtinadnnnidates 6 Iii—Important and substantial federal questions herein have not heretofore been specifically determined by this Court _ siinniaaiiaiiie 10 i 18 Appenpix A Opinion and judgment of the United States Court of Appeals, Second Circuit, entered June 22, TEU scivsitaciniitisetabeniseienieiddindinapsabiaeainiainnmninien la li PAGE Appenpix B Opinion and judgment of the United States Court of Appeals, Second Cireuit, entered February 1, IIIT Talaihivapiicsuel uadhldssinenisseustiindaeallbasionsmeemeuiestecieaadiesiabammeniien 9a Aprenpix C Opinion and judgment of the district court of the Southern District of New York, entered August is AED ‘sitciceusealpucssieiesistnediniacihinieinaalbasnaieiigpiabditilaiatndieceinpadiaits lla Appenpix D Opinion and judgment of the district court of the Southern District of New York, entered May 5, gp ALE EE ORE er Oe RO eC IO 70a Appenbix E Amended Permanent Injunction and Judgment of the district court of the Southern District of New York, entered January 24, 1977 0.000000... T5a Appenpix F Civil Rights Act of 1871, April 20, 1871, ¢. 22 (B.S. SE te IEE Oh III i scsccrensiecssrdeitstaciniiceemnsiibimnessonetions 8la Appenbix G Civil Rights Act of 1964, Pub. L. 88-352, July 2, 1964, 78 Stat. 241: Title VIT, 42 USC § 2000e .. 82a Apprenpix H Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. 94-559, October 19, 1976, 90 Stat. 2641, ey SED ‘aiatnissiabentinedicans siehheciecebiliniiatineiaiin 92a PAGE Appenpix I Fourteenth Amendment, Section 1, of the Consti- tution of the United States .0......0.....0..ccccecseeeeeeeees 93a APPENDIX J New York Public Authorities Law, Article 5, Title 9, $§ 1201, 1202, 1208 ....... bbicidnasatiapiesadeiiaideltbiiiaams 94a ApPENDIX K Order of the United States Court of Appeals, Sec- ond Circuit, granting petitioners’ motion for a stay of issuance of mandate ...................cccccceeeeeee 102a TaBLe oF CasEs Cases: Beazer, et al. v. New York City Transit Authority, et al., 399 F. Supp. 1032 (SDNY 1975) ......................-ccee 2, 13, 15 Beazer, et al. v. New York City Transit Authority, et al., 414 F. Supp. 277 (SDNY 1975) -....................s0seeeeee 2, 15, 17 Beazer, et al. v. New York City Transit Authority, et al., I a, car aac errceeecacmnneeenonane 2,13 Bennett v. California, 406 F.2d 36 (9th Cir. 1969) cert. I i ceeisctemtiiicacenettaacimene 7 Bennett v. Gravelle, 323 F. Supp. 203 (D.C. Md. 1971), aff’d, 457 F.2d 1011 (4th Cir. 1971), cert. dismissed I a sebaslbiopeibannsine 8 Blake v. City of Los Angeles, 435 F. Supp. 55 (D.C.D. EPR ee sae a 16 Board of Regents v. Roth, 408 U.S. 564 (1972) 0.000...... 13 iv PAGE Causey v. Ford Motor Co., 516 F.2d 416 (Sth Cir. 1975) 16 Chance v. Board of Examiners, 458 F.2d 1167 (1972) reversed on rehearing on other grounds, 534 F.2d 993 (1976) cert. den. 431 U.S. 965 (1977) ccc ccccccceeeeee 16 City of Kenosha v. Bruno, 412 U.S. 507 (1973) ....6,8, 10, 12 Dandridge v. Williams, 397 U.S. 471 (1970) 0. 15 Edelman y. Jordan, 415 U.S. 651 (1973) 0. 1! Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ee. 12 Ford Motor Co. v. Dept. of Treasury of Ind., 323 U.S. | | pe x Frontiero v. Richardson, 411 U.S. 677 (1973) .000000....... 13 Graham vy. Richardson, 403 U.S. 365 (1971) 00000000... 13 Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944) 8 Guardian Association of New York v. Civil Service Commission, 431 F. Supp. 526 (SDNY 1977) ............... 7 International Society for Krishna Consciousness, Inc. v. Port Authority, 425 F. Supp. 681 (SDNY 1977)... 7 Jagnandan vy. Giles, 538 F.2d 1166 (5th Cir. 1976), cert. den. 433 US. SOD (GUT) nnnsinseesiiees 7 Kennecott Copper Corp. v. State Tax Commission, 327 U.S. 573 (1946) ...... peieasipihitigaataiaieiaasiasiaaiintaaass 8 Korematsu v. United States, 323 U.S. 214 (1944) ........ 13 K ostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) 000. 7 Lerner v. Casey, 2 N.Y.2d 355 (1959), aff'd 357 U.S. 468 (1958) ceccccccsseceee PAGE Lindsley vy. National Carbonic Gas Co., 220 U.S. 61 EET a 14 Lloyd v. Regional Transportation Authority, 548 F.2d SU, IED ccsnicnicmnentnensieieemmans ensiesinin 7 Monell vy. Dept. of Soc. Serv. of the City of New York, 532 F.2d 259 (1976), cert. granted 429 U.S. 1071 Ee ; ciintabiniapndiienieatimeed 6, 7, 10 Meouroe v. Pape, 365 U.S. 167 (1961). 6, 8,12 Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) Appeal to U.S. Supreme Court pending ............ 11 Owen vy. City of Independence, Missouri, 560 F 2d 925 (8th Cir. 1977) Appeal to U.S. Supreme Court pend- EEE 11 Patton vy. Conrad Area School District, 388 F. Supp. re 11 Sams v. New York State Board of Parole, et al., 352 F. Supp. 296 (SDNY 1972), Appeal dismissed 2d Cir. EERE Se eee 7 Scheuer v. Rhodes, 416 U.S. 232 (1974) 000... 9 Scott v. City of Anniston, 430 F. Supp. 508 (N.D. Ala. EL ESXS SLT 17 Silver v. Dickson, 403 F.2d 642 (4th Cir. 1968) cert. i cree 9 Skehan v. Board of Trustees of Bloomsburg State Col- lege, 436 F. Supp. 657 (M.D. Pa. 1977) 000000... 13 Sugarman v. Dougall, 413 U.S. 634 (1973) 20. 13 United States v. lronworkers, 443 F.2d 544 (9th Cir. 1971) cert. den. 404 U.S. 984 (1971) 0. 16 PAGE Westberry v. Fisher, 309 F. Supp. 12 (D.C. Me. 1970) 8 Wood v. Strickland, 420 U.S. 308 (1975) ........--.----00e-ee-e- 9,11 Worley v. California Department of Correction, 432 oF OU 9 Statutes Crrep Civil Rights Act of 1871, R.S. 1979, 42 USC § 1983 .4, 6, 12 Civil Rights Act of 1964, Title VI1, 42 USC § 2000e, GU, cecttctetccesteneceneetamnetneninniieiieenantennne 4 Civil Rights Attorney’s Fees Awards Act of 1976, Pub. Sf LS SSR ree eee 4,12 Constitution of the United States Fourteenth Amendment, Section 1.00.00... 4 Public Authorities Law of the State of New York I 4,7,8 Section 1254(1) of the Judicial Code, 28 USC §1254(1) 4 In THE Supreme Court of the United States Ocroser Term, 1977 No. —— > New York Crry Transit Autnonrity, et al., Petitioners," —VJ.— Cart Beazer, et al., Respondeunts.** <> PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT The petitioners respectfully pray that a writ of certiorari issue to review the judgments of the United States Court of Appeals, Second Cireuit, dated and entered in this case June 22, 1977 and February 1, 1978. * Petitioners, who were defendants in the District Court, appel- lants-cross-appellees in the appeal to the Circuit Court are the New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, William J. Ronan, individually and in his capacity as a member and as chairman and chief executive officer of the New York City Transit Authority and also as a director and as chairman and chief executive officer of the Man- hattan and Bronx Surface ey ~ ogy Bag , and his successors in office, William L. Butcher wrence Bailey, Harold L. Fisher, William A. Shea, Eben W. Pyne, Leonard Braun, “Justine” N. Feldman, Donald H. Elliott, Frederic B. Powers and Mortimer Gleeson, individually and in their capacities as members of the New York City Transit Authority and di- rectors of the Manhattan and Bronx Surface Transit Operating Authority, and their successors in office; Wilbur B. McLaren, individually and in his capacity as executive officer for labor Opinions Below The opinion of the United States Court of Appeals, See- ond Cireuit, of June 22, 1977 is reported at 558 F.2d 97 (1977), and reprinted as Appendix A annexed hereto (infra, p. la). The opinion of the United States Court of Appeals, Second Cireuit, entered on February 1, 1978, denying peti- tioners’ petition for rehearing is unreported and appears as Appendix B (infra, p. 9a). The opinion of the United States District Court for the Southern District of New York dated August 6, 1975, is reported at 399 F. Supp. 1032 and reprinted as Appendix C (infra, p. lla). The Supplemental Opinion of the United States District Court for the Southern District of New York dated May 5, 1975, is reported at 414 F. Supp. 277 and reprinted as Appendix D infra, p. 70a). relations and personnel of the New York City Transit Authority, and his successors in office; Louis Lanzetta, individually and in his capacity as medical director of the New York City Transit Authority, and his successors in office. The Civil Service Com- mission of New York; Personnel Department of the City of New York; Harry I. Bronstein, individually and in his capacity as a member and as Chairman of the Civil Service Commission of the City of New York, and director of the Personnel Department of the City of New York, and his successors in office; David Stadtmauer and James W. Smith, individually and in their capac- ities as members of the Civil Service Commission of New York, and their successors in office, were dismissed from the action after the District Court judgment. ** Respondents, who were plaintiffs in the District Court, respon- dents-cross-appellants in the appeal to the Circuit Court are Carl Beazer; Jose R. Reyes; Francisco Diaz; Malcolm K. Frasier, individually and on behalf of all others similarly situated. Nathaniel Wright was added as a named plaintiff-appellee-cross- appellant member of the class after the District Court trial had begun. Jurisdiction The judgment of the United States Court of Appeals, Second Circuit was entered on June 22, 1977, Appendix A (infra, p. la). A motion and petition for a rehearing en bane was denied by the United States Court of Appeals, Second Circuit on February 1, 1978 Appendix B (infra, p. 9a). An order granting petitioners’ motion for stay of mandate was entered on March 10, 1978. This petition for certiorari was filed within 90 days of the order denying rehearing and within 30 days of the order granting stay of mandate Appendix K (p. 102a, mfra). The jurisdic- tion of this Court rests on 28 USC § 1254(1). Questions Presented 1. Are a public transit authority and/or its officials “per- sons” subject to suit under the Civil Rights Act of 1871 (42 USC § 1983)? 2. If petitioners are subject to suit under the Civil Rights Act of 1871, are they liable for awards of back pay and attorneys’ fees? 3. Is the petitioners’ denial of employment to former heroin addicts participating in methadone maintenance pro- grams, an unconstitutional denial of due process and equal protection under the Fourteenth Amendment? 4. Is the petitioners’ denial of employment to former heroin addicts participating in methadone maintenance programs, an unlawful racial discrimination under Title VII of the Civil Rights Act of 1964, 42 USC §2000e et seq.? Constitutional and Statutory Provisions Involved The Fourteenth Amendment, Section 1 of the Constitu- tion of the United States; Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq.; the Civil Rights Act of 1871, 42 U.S.C. § 1983; New York State Public Authorities Law §§ 1200, et seq.; Civil Rights Attorneys’ Fees Awards Act of 1976, 28 U.S.C. § 1988; 28 U.S.C. § 1254(1), are set out in Appendices F through J. Statement This class action was commenced under 28 USC § 1331, 42 USC § 1983 and 42 USC § 2000e. The gravamen of the suit was the alleged unconstitu- tionality of the petitioners’ policy of excluding from em- ployment former heroin addicts who are participants in or have completed a methadone maintenance program. The class is composed of all such persons who have been, or would in the future be, subject to dismissal or rejection for employment by the petitioners. The district court found, under 42 USC $1983, that the petitioners’ exclusion of present and past methadone main- tained persons from employment in any position in the New York City Transit Authority was a violation of the due process and equal protection clauses of the Fourteenth Amendment. The court, inter alia, ordered the petitioners to give individual consideration to each methadone main- tained employee or applicant for employment, and awarded back pay. The district court dismissed the petition as to defendant New York City Civil Service Commission, New 5 York City Personnel Department, and their named of- ficials. On May 5, 1976, the district court issued a supplemental opinion finding the petitioners guilty of discrimination under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, e* seq. as amended, for the sole purpose of estab- lishing jurisdiction to award attorneys’ fees. On January 24, 1977, following the enactment of the Civil Rights At- torneys’ Fees Act of 1976, 42 USC § 1988, the district court issued an Amended Permanent Injunction and Judgment (Appendix FE, p. 75a, infra) basing its award of attorneys’ fees on that Act. The attorneys’ fees awarded by the district court were in the sum of $375,000.00 for legal services per- formed up to October 8, 1976. The United States Court of Appeals, Second Circuit, affirmed the opinion of the court below, except it reversed the dismissal as to Beazer, Reyes and Wright, remanded the case to the district court for determination of positions to which Beazer, Reyes and Wright should be reinstated and the amount of back pay due them, and reduced the attorneys’ fee award by the sum of $50,710.00, the amount given by the district court as a “premium” for legal work performed. REASONS FOR GRANTING WRIT I. This case involves issues similar to issues now pending before this Court in another case. In Monell v. Dept. of Soc. Serv. of the City of New York, O82 F.2d 259 (1976), cert. granted 429 U.S. 1071 (1977), this Court granted certiorari on the question of whether local government officials and/or local independent school boards are “persons” subject to suit under 42 USC § 1983, where relief in the nature of back pay was sought against them in their official capacities. The instant case thus shares with Monell the issues of whether a public agency or its officials are “persons” sub- ject to suit for monetary relief under 42 USC » 1983. The court below has decided substantial and im- portant federal questions in a way which is not in accord with applicable decisions of this Court. A. The decision below asserts jurisdiction over an inde pen- dent public transit authority and its officials under 42 USC § 1983, and therefore conflicts with this Court’s de- cisions in Monroe vy, Pape, 365 U.S. 167 and City of Kenosha v. Bruno, 412 U.S, 507. In Monroe v. Pape, 365 U.S. 167 (1961), and City of Kenosha vy. Bruno, 412 U.S. 507 (1973), this Court ruled that a municipality is not a “person” subject to suit under 42 USC § 1983 (the Civil Rights Act of 1871) for either monetary or equitable relief. The courts of the various —— 7 circuits have applied this principle repeatedly to the states and other governmental bodies as well as to municipalities. Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) ; Bennett v. Cali- fornia, 406 F.2d 36 (9th Cir. 1969) ; Guardian Association of New York vy. Civil Service Commission, 431 F. Supp. 526 (SDNY 1977). The petitioner Transit Authority was created by the legislature as a public benefit corporation to perform the governmental function of operating the transit facilities owned by the City of New York. These functions pre- viously were vested in the Board of Transportation of the City of New York, a former city agency. The Transit Authority is composed of members appointed by the Gov- ernor by and with the advice and consent of the Senate. (Publie Authorities Law, §§ 1201.1, 1202.1, 1202.2; Lerner v. Casey, 2 NY 2d 355 (1957), aff'd 357 US 468 (1958)). The Authority has been held not to be a “person” subject to suit under $1983. (Sams v. New York State Board of Parole, et al., 352 F. Supp. 296 (SDNY 1972), appeal dis- missed 2nd Cir. 12/11/73). In the course of its opinion in Monell, supra (532 F.2d at 263), the Second Circuit observed that the New York City Transit Authority is not a person within the meaning of § 1983. Yet in the present case, the same Second Circuit asserted jurisdiction over the Transit Authority under that same statute. Other agencies similar to the Authority also have been found not to be persons under § 1983, see Jagnandan vy. Giles, 538 F.2d 1166 (5th Cir. 1976), cert. den. 432 U.S. 910 (1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977) ; International Society for Krishna Consciousness, Inc. v. N.Y. Port Authority, 425 F. Supp. 681 (SDNY 1977). 8 The doctrine that municipalities are immune from suit for both equitable and monetary relief under 42 USC § 1983 (Monroe v. Pape, supra; City of Kenosha vy. Bruno, supra), should be equally applicable to public officials. To rule otherwise would effectively remove the immunity provided municipalities by Congress under 42 USC § 1983. Under New York law, the individually named petitioners herein are duly appointed public officials of an agency of the State of New York (Public Authorities Law, § 1201.2) and the entire thrust of this proceeding is obviously directed to that agency. When such public officials are sued in their official capacities, with the result that liability in equity or damages will be imposed on the State, a sub- division of the State, or a municipality, the suit is, in actuality “one against the State or municipality even though the State or municipality is not named as a defen- dant” (Westberry vy. Fisher, 309 F. Supp. 12, 18 [D.C. Me. 1970]). Cf. Kennecott Copper Corp. v. State Tax Commis- sion, 327 U.S. 573 (1946); Ford Motor Co. vy. Dept. of Treasury of Ind., 323 U.S. 459 (1945); Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944). At most, public officials, in their official capacity, have been held subject only to injunctive or declaratory relief under § 1983. Thus, in Bennett y. Gravelle, 323 F. Supp. 203 (D.C. Md. 1971), aff’d 451 F.2d 1011 (1971), cert. dis- missed 407 U.S. 917 (1972), in dismissing a complaint for alleged discrimination brought against the Chairman and Members of the Washington Sanitary Commission, the court said: In their official capacities, the Commissioners are ex- tensions of the municipal agency and are, therefore, 9 not ‘persons’ within the meaning of § 1983. Accord- ingly, damages may not be assessed against the de- fendants under this section for acting in their official capacities. 323 F. Supp. at 211. See also Worley v. California Department of Correction, 432 F.2d 769 (9th Cir. 1970) and Silver vy. Dickson, 403 F. 2d 642 (4th Cir. 1968), cert. den. 394 U.S. 990 (1969). This Court recently clarified the scope of immunity of government officials from liability for damages under § 1983. In Wood v. Strickland, 420 U.S. 308 (1975), an action for damages under § 1983 against school board officials, the Court declared (at p. 318) that “common-law tradition recognized in our prior decisions, and strong public policy reasons” required the extension of a qualified good faith immunity to the school officials. The Court stated further (at p. 322): A compensatory award will be appropriate only if the school board member has acted with such an impermis- sible motivation or with such disregard of the stu- dent’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith. See also Scheuer v. Rhodes, 416 U.S. 232 (1974), in which the Court took note of: . . » (1) the injustice, particularly in the absence of bad faith, of subjecting to liability an officer who is required, by the legal obligation of his position, to exercise discretion; (2) the danger that the threat of such liability would deter his willingness to execute his office with the decisiveness and the judgment re- quired by the public good. 416 U.S. at 239. 10 In the case at bar, no finding of bad faith was made by the courts below, and consequently, no award of monetary damages could properly be made, As wil] be demonstrated infra, awards of back pay and attorneys’ fees must be regarded as monetary damages, Ii. Important and substantial federal questions herein have not heretofore been specifically determined by this Court. A. Back pay and attorneys’ fees are monetary costs which are indistinguishable from damages, and therefore should not be assessed against public officials under 42 USC § 1983. The courts below awarded back pay to members of the affected class, and attorneys’ fees in the sum of $324,290 for legal services performed up to October 8, 1976. In Monell v. Department of Social Services of the City of New York, 532 F.2d 259 (2d Cir. 1976), cert. granted 429 U.S. 1071, the Second Circuit looked to the legislative history of 42 USC § 1983, recited by Mr. Justice Douglas in City of Kenosha y. Bruno, supra, 412 U.S. at 516, 517- 520 and found that: . if we try to adjust the grievances of the present plaintiffs by allowing the remedy of back pay under § 1983 ... we would be broadening the indirect remedy of damages generally against cities, which we are reluctant to do for reasons of precedent and con- comitant policy. e eo e 11 The claim for back pay is not merely an adjunct of equitable relief. It stands singly as a claim for damages which cannot be distinguished from many other claims for violations of civil rights in actions which do not involve employment discrimination. 532 F.2d at 267. Similar findings were made in Muzquiz v. City of San An- tonio, 528 F.2d 499 (5th Cir. 1976); Patton v. Conrad Area School District, 388 F. Supp. 410 (D. Delaware, 1975). As this Court observed in Wood v. Strickland, 420 U.S. 308, 319-320 (1974): The imposition of monetary costs for mistakes which were not unreasonable in light of all the circumstances would undoubtedly deter even the most conscientious school decision-maker from exercising his judgment independently, forcefully and in a manner best serv- ing the long term interests of the school and students. (emphasis added) Both attorneys fees and back pay awarded herein are “monetary costs,” the liability for which would effectively impede the administrative decision-making processes of the petitioners. The financial burden which these monetary costs would impose on the petitioners and on the City and State treasuries which subsidize the petitioners, would be the same whether the award were labeled “damages” or “equitable.” This Court’s concern with reality rather than with labels was demonstrated in Edelman vy. Jordan, 415 U.S. 651 (1973), where it was found, as cited by the Court of Appeals in Owen v. City of Independence, Missouri, 560 F. 2d 925, 932 (8th Cir. 1977), 12 - +. that a request for retroactive welfare benefits, even if entitled ‘equitable restitution’ and made part of an equitable decree in a suit against a state official, is in reality a suit against the state barred by the eleventh amendment if the retroactive benefits are to be paid from the state treasury, . While no Eleventh Amendment claim is made in the case at bar, a similar immunity is provided to public agencies under 42 USC § 1983. The Congress, in its enactment of the Civil Rights Act of 1871 (subsequently 42 USC § 1983), clearly intended to prevent the depletion of public treasuries through the imposition of damage liability upon munic- ipalities or their Officials. (See discussion Monroe y. Pape, supra, pp. 187-192 and City of Kenosha y. Bruno, supra, pp. 516-520.) If, by labeling attorneys fees and back pay as “equitable” or “costs,” they thereby are not deemed as great a threat to public treasuries as are damage awards, a semantic nicety will have overridden the clear intent of Congress. The Civil Rights Attorneys’ Fees Awards Act of 1976, 42 USC § 1988, should not be construed to overcome the immunity provided to public agencies and their officials under § 1983. While Congress, by express language, could have subjected public agencies to awards of attorneys fees in actions brought under § 1983, the Attorneys’ Fees Awards Act contains no such express language. In the absence of explicit Statutory language subjecting public agencies and officials to liability for attorneys fees, the 13 Skehan v. Board of Trustees of Bloomsburg State College, 436 F. Supp. 657 (M.D. Pa. 1977). B. The court below improperly applied the strict scrutiny standard in finding a denial of due process and equal protection, since this case involves neither a suspect classi- fication nor a fundamental right. The courts below found that the petitioners’ denial of employment to former heroin addicts participating in methadone maintenance programs was an unconstitutional denial of due process and equal protection under the Four- teenth Amendment. In reaching this conclusion, both the district court and the Cireuit Court expressly relied on eases (principally, Sugarman vy. Dougall, 413 U.S. 634 {1973]), which had applied the strict scrutiny standard reserved for cases involving a suspect classification or a fundamental interest. (See Cireuit Court decision, 558 F. 2d at p. 99, and district court decision 399 F. Supp. at p. 1057.) The group involved in the instant case, drug users, is not within the suspect categories which have been enumer- ated by this Court (e.g., race [Korematsu v. United States, 323 U.S. 213 (1944)]; alienage [Graham vy. Richardson, 403 U.S. 365 (1971)]; and to a limited extent, sex [Frontiero v. Richardson, 411 U.S. 677 (1973) }. Similarly, the employment sought in this case is not a “fundamental right,” deprivation of which could be jus- tified only by a compelling state interest. This Court has found that there is no “right” to a job or to appointment to a job. See Board of Regents v. Roth, 408 U.S. 564 (1972). 14 If the decision below is allowed to stand, a new category subject to the Court’s strict scrutiny, will have been created. Since the case at bar involves neither a suspect classifica. tion nor a fundamental right, the traditional or “restrained” standard of review should have been applied under the guidelines of Lindsley vy. National Carbonic Gas Co., 220 U.S. 61 (1911), as follows: 1. The equal protection clause of the Fourteenth Amendment does not take from the State the power to classify in the adoption of police laws, but admits of the exercise of a wide scope of discretion in that regard, and avoids what is done only when it is with- out any reasonable basis and therefore is purely arbitrary. 2. A classification having some reasonable basis does not offend against that clause merely be- cause it is not made with mathematical nicety or because in practice it results in some mequality. 3. When the classification in such a law is called in question, if any state of facts reasonably can be con- ceived that would sustain it, the existence of that state of facts at the time the law was enacted must be assumed. 4. One who assails the classification in such a law must carry the burden of showing that it does not rest upon any reasonable basis, but is essentially arbitrary. 220 U.S. at pp. 78-79. (emphasis added.) The petitioners’ policy of denying employment to drug users was based on its concern for the safety of the riding public. Petitioners sought to employ persons able to fune- tion well in the routine and challenge of daily work, whether in operational or administrative positions. The 15 record below includes the testimony of medical experts challenging the efficacy of methadone maintenance pro- grams, and in fact, the district court decision acknowledged that “there are differences of opinion as to the merits of methadone maintenance as a treatment for heroin addic- tion.” Beazer, supra, 399 F. Supp. at p. 1058. Clearly, then, this case does not involve the “invidious discrimination” which is necessary to a finding of uncon- stitutionality under the traditional standard of scrutiny. (See Dandridge v. Williams, 397 U.S. 471, 483 [1970].) Cc. The district court improperly applied the disparate impact test in finding that petitioners’ employment policy violated Title VII of the Civil Rights Act of 1964 (42 USC 2000e). The Court of Appeals did not reach the question of Title VII jurisdiction and liability as applied to petitioners by the district court. Nevertheless, the district court opinion established an undesirable precedent which merits review by this Court. The district court ruled that the petitioners’ policy of excluding methadone maintained persons from employ- ment had a disparate impact on Blacks and Hispanics and therefore constituted unlawful employment discrimina- tion in violation of Title VII. The ruling was made for the express purpose of establishing jurisdiction for an award of attorneys fees. Beazer, supra, 414 F. Supp. at 278. The court found disparate impact solely on the basis of statistics purporting to show (1) that of the employees referred to petitioners’ medical consultant “for suspected violation of its drug policy” (Beazer, supra, 414 F. Supp. at p. 278) 81% were Black and Hispanic and 19% were White; and (2) that between 62% and 65% of methadone 16 maintained persons in New York City are Black and Hispanic. The first set of statisties is irrelevant in the context of this case, since it is not limited to methadone maintained persons nor does it indicate how many, if any, of the persons referred to the medical consultant, were discharged from employment. The second set of statistics was not presented at the trial as hard data but merely as imprecise estimates by several of the respondents’ witnesses. Moreover, the court dis- regarded the minimal nature of the impact on the relevant group, a threshold requirement for a finding of Title VII discrimination. Chance v. Board of Examiners, 458 F.2d 1167, 1176 (1972) reversed on rehearing on other grounds, 534 F.2d 993 (1976) cert. den. 431 U.S. 965 (1977). The court also disregarded the fact that 46% of peti- tioners’ work foree is Black and Hispanic. As stated in United States y. Ironworkers, 443 F.2d 544, 551, cert. denied 404 U.S. 984 (1971) the use of statistics must be “eonditioned by the existence of proper supportive facts and the absence of variables which would undermine the reasonableness of the inference of discrimination.” See also Causey v. Ford Motor Co., 516 F.2d 416, 420. In the case at bar, there are no such supportive facts, the statistics themselves are of dubious validity, and the find- ing of discrimination is entirely unwarranted. Moreover, recent decisions have cast doubt on the validity of the disparate impact standard in its applica- tion to a public agency. As cited by Blake vy, City of Los Angeles, 435 F. Supp. 55 (D.C.D. Cal. 19/7), the court in 17 Scott v. City of Anniston, 430 F. Supp. 508 (N.D. Ala. 1977) found, ... the intent standard, i.e. that there must be proof of discriminatory racial purpose as in Washington v. Davis, should be applied in civil rights litigation brought under Title VII. ... The Supreme Court held in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S. Ct. 2666 (427 U.S. at 453, 96 S. Ct. at 2670), that the authority for the 1972 amendment extending Title VII to State and local governments was the Fourieenth Amend- ment... . Therefore, it is simple logic that a statute can be no broader than its Constitutional base... . It follows that in Title VII cases against a State or local government the statute is to be construed in accordance with the Constitutional test adopted by the Court in Washington, supra: i.e. there must be proof of discriminatory purpose. (Scott v. City of Anniston, 430 F. Supp. at 514-15; cited in Blake v. City of Los Angeles, 435 F. Supp. at 63-64.) In the instant case the court below acknowledged that no discriminatory purpose was present. Beazer, supra, 414 F. Supp. 277, 279. Consequently, no support exists in this ease for liability under Title VII. 18 III. CONCLUSION For the foregoing reasons, this Petition for a Writ of Certiorari should be granted. Respectfully submitted, AtpHonse E. D’Amsrosé Attorney for Petitioners New York City Transit Authority, et al. 370 Jay Street Brooklyn, New York 11201 Joan Orrner EvcGene Freipvs Of Counsel Dated: April, 1978 Appendices APPENDIX A Opinion and Judgment of the United States Court of Appeals, Second Circuit, Entered June 22, 1977 UNITED STATES COURT OF APPEALS Seconp Circuit | —>— | Cart A. Beazer et al., Plaintiffs-A ppellees-Cross-A ppellants, —V.— New York City Transit Autuoriry et al., Defendants-A ppellants-Cross-Appellees. —<—f - Nos. 1043, 1309, Dockets 76-7295, 77-7092 Argued May 5, 1977 Decided June 22, 1977 Alphonse E. D’Ambrose, Brooklyn, N. Y. (E. W. Sum- mers, G. T. Dunn, Brooklyn, N. Y., of counsel), for defen- dants-appellants-cross-appellees. Elizabeth B. DuBois, Erie D. Balber, Mark C. Morril, New York City (Michael Meltsner, New York City, of counsel), for plaintiffs-appellees-cross-appellants. Robert B. Fiske, Jr., U. S. Atty., S. D. N. Y., New York City, Barbara Allen Babcock, Asst. Atty. Gen., Ronald R. Glancz, Robert S. Greenspan, Walter W. Barnett, Attys., Dept. of Justice, Washington, D. C., Sidney Edelman, Asst. 2a Gen. Counsel, Rockville, Md., Robert B. Lanman, Senior Atty., Dept. of Health, Education and Welfare, Washing- ton, D. C., on brief for United States as amicus curiae urg- ing affirmance of the appeal. Before Mansriecp and Oakes, Circuit Judges, and Brieant, District Judge.* Oakes, Circuit Judge. L. In a comprehensive and carefully limited opinion, the United States District Court for the Southern District of New York, Thomas P. Griesa, Judge, held that the New York City Transit Authority’s blanket exclusion from em- ployment of all persons participating in or having success- fully concluded methadone maintenance programs—the plaintiff class in this action brought under 42 U.S.C. § 1983 —violated the equal protection and due process clauses of the Fourteenth Amendment. The court enjoined the Tran- sit Authority (TA) from further enforcing its poliey. 399 F.Supp. 1032 (S.D.N.Y. 1975). On appeal the TA does not challenge any of Judge Griesa’s findings as factually erro- neous, nor could it in view of the one-sided record before us. This record, developed over fifteen days of trial, over- whelmingly supports the trial court’s findings that, after a brief initial period of adjustment, many former heroin addicts on methadone maintenance are employable and that identification of those who are employable is readily ac- complished through regular personnel procedures. The district court’s conclusion of law was that the TA’s methadone rule has “no rational relation to the demands * Of the Southern District of New York, sitting by designation. 3a of the jobs to be performed.” 399 F.Supp. at 1057. This conclusion rests on the solid foundation of Sugarman v. Dougall, 413 U.S. 634, 93 S.Ct. 2842, 37 L.Bd.2d 853 (1973) (policy against employment of aliens unconstitutionally overinclusive), and our own Crawford v. Cushman, 531 F.2d 1114, 1123 (2d Cir. 1976) ( policy requiring discharge of pregnant Marine unconstitutionally under- and overin- clusive), as the United States as amicus curiae points out. Accord, Cook vy. Arentzen No. 76-1359 (4th Cir. May 6, 1977). The decree is drawn strictly on the basis of the evi- dence and does not prevent the TA from making regula- tions to ensure that past or present methadone users are proven to be employable and to prevent their employment in safety-sensitive jobs. Accordingly, we affirm the district court’s holding of a constitutional violation and its conse- quent injunction against further enforcement of the TA policy. It. In a supplemental opinion Judge Griesa also held that appellees were entitled to relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., because the TA methadone policy had a racially discriminatory effect. 414 F.Supp. 277 (S.D.N.Y. 1976). Appellees concededly pressed their Title VII claim for the sole purpose of obtain- ing attorneys’ fees under 42 U.S.C. § 2000e-5(k), see 414 F.Supp. at 278, and the court did award such fees. We need not reach the Title VII issues in this case, however, because before the decree became final Congress enacted the Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C. § 1988, which permits the court in its discretion to allow a prevailing party in a § 1983 action, as here, “a rea- sonable attorney’s fee as part of the costs.” After passage 4a of this statute appellees moved for a declaration that it pro- vided an alternative basis for the award of attorneys’ fees in this case, and the district court so ruled. The court awarded to appellees a total fee of $375,000, of which $310,000 was compensation for hours worked, $14,290 was for costs incurred, and the balance was a “premium.” Judge Griesa was correct in holding that the 1976 Act au- thorized a fee award here, even though it was enacted after most of the services below were rendered. A change in the law is to be given effect in a pending case unless there is some indication to the contrary in the statute or its legis- lative history or unless manifest injustice would result. Bradley v. School Board, 416 U.S. 696, 711, 714-16, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974): Brown v. General Services Administration, 507 F.2d 1300, 1305-06 (2d Cir. 1974), aff'd on other grounds, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976). Here the only reference in the legislative his- tory explicitly supports the Act’s application to pending cases, H.R.Rep. No. 94-1558, 94th Cong., 2d Sess. 4 n. 6 (1976), and no manifest injustice from applying the statute to this pending case is alleged. Nor is any injustice alleged from the award of fees itself. Since a party who succeeds in enforcing his civil rights should ordinarily recover his attorneys’ fees, unless special cireumstances—not alleged here—render such recovery unjust, see S.Rep. No. 94-1011, 94th Cong., 2d Sess. 4 (1976) reprinted in [1976] U.S. Code Cong. & Admin. News, pp. 5908, 5912, quoting Newman vy. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); see also Northcross vy. Board of Education, 412 U.S. 427, 428, 93 S.Ct. 2201, 37 L.Ed.2d 48 (1973) (per curiam), the awarding of a fee under the 1976 Act was proper. 5a In addition to arguing against the awarding of any fee, however, appellants contend that the amount awarded was excessive. With regard to the sums awarded for hours worked and costs incurred, we uphold the district court. The requirements of documentation and an evidentiary hearing as to time charges, set forth in City of Detroit v. Grinnell Corp., 495 F.2d 448, 464-74 (2d Cir. 1974), have been fully met here, and our decision in Torres vy. Sachs, 038 F.2d 10 (2d Cir. 1976), permitted the district court to use “the same [fee award] standards as in other complex federal litigation,” id. at 12, without regard to the nonprofit or “public interest” nature of the legal work done for ap- pellees, see id. at 13. As to costs, they are frequently awarded by courts to successful parties, and no challenge is made to appellees’ itemization here. We must modify the district court’s award, however, to the extent of eliminating the $50,710 awarded as a “pre- mium.” We take the view that this extra award amounted to an abuse of discretion in the particular circuiastances of this case. Though complex factual issues were involved, the proof of which required diligent and rather prodigious effort, the legal issues were relatively simple and few. There was no dispv‘e over the governing constitutional doctrines, although their applicability to the facts was a matter requiring considerable persuasive skill. Moreover, the benefits that the suit will bring to the plaintiff class are not altogether concrete. No monetary fund was recov- ered for the class (although back pay will be recovered by certain individual claimants); appellants are simply en- joined from continuing past policy. Only members of the class who (1) seek employment with the TA and (2) are not denied employment on legitimate grounds unconnected with methadone use will benefit from this litigation. These 6a two factors, complexity or risk of loss on the legal issues and benefit to the clients, are important considerations in any award of attorneys’ fees above an hourly rate. See City of Detroit v. Grinnell Corp., supra, 495 F.2d at 470; Alpine Pharmacy, Inc. v. Chas. Pfizer & Ca,, 481 F.2d 1045, 1050 (2d Cir.), cert. denied, 414 U.S. 1092, 94 S.Ct. 722, 38 L.Ed.2d 549 (1973); Blank y. Talley Industries, Inc., 390 F.Supp. 1, 6 (S.D.N.Y. 1975); Pealo v. Farmers Home Ad. ministration, 412 F.Supp. 561, 567 (D.D.C. 1976). Since neither factor argues in favor of an extra award here, we must heed our own admonition to serutinize attorneys’ fee applications with an “eye to moderation,” seeking to avoid either the reality or the appearance of awarding “ ‘windfall fees.’” City of Detroit v. Grinnell Corp., supra, 495 F.2d at 469, 470. We reduce the award by $50,710 and otherwise affirm it. ITI. Cross-appellants Beazer, Reyes and Wright, three of the named plaintiffs in this class action, were denied individual relief—reinstatement and back pay—by the district court solely on the basis that, by being heroin users while work- ing with the TA before their methadone treatment, they had violated a TA rule prohibiting heroin use. In each case, however, the TA’s decision to discharge was not grounded on any violation of the heroin rule, but rather solely on use of methadone. Since this reason was uncon- stitutional, as above explicated, the court erred in denying individual relief. The TA’s argument against individual relief amounts to an attempt to evade the full ferce of the district court's holding. The TA first discharged the three employees for one reason and then years later, when that reason was held 7a to be illegal, it sought to avoid any remedy for its wrong by asserting other reasons, never before articulated, why the employees could have been discharged at an earlier time. In the case of such illegal discharges, the wrong done by the employer consists not of discharging the em- ployee but of discharging him for an illegal reason. It is irrelevant to the consideration of a remedy for that wrong that the wrong might have been avoided by a discharge for a legal reason. C/. NLRB vy. George J. Roberts & Sons, Ine., 451 F.2d 941, 945 (2d Cir. 1971) (if discharge of em- ployee occurred even partially for motive that violated labor laws, he has suffered a remediable wrong, even if ample valid grounds existed for his discharge); NLRB v. Pembeck Oil Corp., 404 F.2d 105, 109 (2d Cir. 1968) (same), vacated on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L..Ed.2d 737 (1969). The wrong being proven, the only question remaining is how best to make the discharged em- ployee whole for the violation of his rights. Cf. Franks v. Bowman Transportation Co., 424 U.S. 747, 763-64, 96 S.Ct. 1251, 47 L.Md.2d 444 (1976) (remedies under Title VIT of 1964 Civil Rights Act for victims of employment discrimi- nation). Certainly nothing in the record here indicates that the TA at the time of the methadone discharges considered alternatively discharging Beazer, Reyes, and Wright for violation of the heroin use rule. All indications are to the contrary, that the current assertions of the heroin use ground amount to “‘counsel’s post hoc rationalizations,’ ” FPC vy. Texaco, Inc., 417 U.S. 380, 397, 94 S.Ct. 2315, 41 L.Ed.2d 141 (1974), quoting Burlington Truck Lines, Inc. v. United Siates, 371 U.S. 156, 168, 83 S.Ct. 239, 9 L.Bd.2d 207 (1962). As for other grounds on which the three indi- viduals might have been discharged—such as Beazer’s al- 8a leged poor attendance record—these were also not raised until after the district court had held the methadone ground unconstitutional. In any event, the district court examined the records and found these grounds insufficient, and if such a traditional employment problem arises after these three individuals are reinstated, that would provide an independent ground for a new discharge. The remedies of hiring and back pay were ordered by the district court for two of the individual plaintiffs, and we affirm that holding as consistent with making those plaintiffs whole for the denial of their constitutional rights. We further believe that the same remedies should be or- dered for Beazer, Reyes, and Wright, who are in essen- tially the same position as the other two in having lost or been denied employment for an illegal reason. We accord- ingly reverse the judgment as to these three plaintiffs and remand to the district court for a determination of the positions to which they should be reinstated and the amount of back pay due to them. Judgment in accordance with opinion. 9a APPENDIX B Opinion and Judgment of the United States Court of Appeals, Second Circuit, Entered February 1, 1978 UNITED STATES COURT OF APPEALS Seconp Circuit At a stated term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the First day of February, one thousand nine hundred and seventy-eight. 76-7295 77-7092 —<— Cart A. Beazer, et al., Plaintiff s-A ppellees- Cross-Appellants, —V,— New York Crry Transit Avurnonrirty, et ai., Defendants-A ppellants- Cross-Appellees, —<—_>_ A petition for rehearing containing a suggestion that the action be reheard in bane having been filed herein by counsel for the appellants-cross-appellees, and no active judge or judge who was a member of the panel having requested that a vote be taken on said suggestion, Upon consideration thereof, it is Ordered that said petition be and it hereby is Dentep. /s/ Irvine R. Kaurman Chief Judge Irving R. Kaufman 10a UNITED STATES COURT OF APPEALS Seconp Circuir At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the first day of February, one thousand nine hundred and seventy-eight. Present: Hon. Watrer R. Mansrietp, Hoy. James L. Oakes, Circuit Judges. Hoy. Cuarues L. Brreant, District Judge. 76-7295, 77-7092 -<> Cart A. Beazer, et al., ; Plaintiff s-A ppellees- Cross-Appellants, —vV - New York City Transir Avruonrrry, et al., Defendants-A ppellants- Cross-Appellees. —<—f>—— A petition for a rehearing having been filed herein by counsel for the appellants-cross-appellees, Upon consideration thereof, it is Ordered that said petition be and hereby is Dentep. /8/ A. Danter Fusaro A. Daniel Fusaro Clerk lla APPENDIX C Opinion and Judgment of the District Court of the Southern District of New York, Entered August 6, 1975 —— Cart A. Beazer, et ai., Plaintiffs, af au New York Crry Transit Auruorrry, et al., Defendants. — No. 72 Civ. 5307. UNITED STATES DISTRICT COURT, S. Db. NEW YORK Aug. 6, 1975. Erie D. Balber, Mark C. Morril, Elizabeth B. DuBois. Legal Action Center for the City of New York, New York City, for plaintiffs. Edward W. Summers, Brooklyn, N. Y., and Gilbert T. Dunn, of counsel, for Transit Auth. A. Michael Weber, Brooklyn, N. Y., Asst. Corp. Counsel, for Civil Service Commission. William A. Roskin, New York City, for Dept. of Person- nel, Civil Service Commission. OPINION Grizsa, District Judge. This is a class action against the New York City Transit Authority (“TA”) and the Manhattan and Bronx Surface 12a Transit Operating Authority (“MABSTOA”) and certain of their officials. For convenience, both of these entities will usually be referred to hereafter collectively as “the TA.” Also sued are the New York City Civil Service Commis- sion and the New York City Personnel Department and cer- tain officials thereof. The aciion challenges the blanket exclusion from any form of employment in the New York City subway and bus systems of all former heroin addicts participating in metha- done maintenance programs, regardless of the individual merits of the employee or the applicant. Plaintiffs also al- lege that there is a similar exclusionary policy even against former heroin addicts who have suecessf ully concluded their participation in a methadone program. The amended complaint alleges that this policy violates the due process and equal protection clauses of the Four- teenth Amendment, and federal civil rights statutes, 42 U.S.C. $§ 1981 and 1983. The claim is that there is no legal basis for classifying all present and former methadone maintenance patients as unemployable for any position in the TA. Plaintiffs also allege that the exclusionary policy has a disparate impact on blacks and Hispanics, resulting in viola- tion of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seg. Jurisdiction is invoked under 28 U.S.C. §§ 1331(a) and 1343(3) and (4), and also 42 U.S.C. $§ 2000e-5(f) (3). Plaintiffs seek declaratory and injunctive relief on behalf of the class, and certain monetary relief on behalf of the named plaintiffs. 13a Parties Lhe Four Named Plaintiffs Carl A. Beazer, a black, is 40 years old. Beazer started working for the TA in 1960 as a subway car cleaner. He was promoted to subway conductor in 1961, and was further pro- moted to towerman in 1966. Beazer was dismissed from his employment on November 26, 1971 after a heroin addiction problem came to light. Beazer had been a heroin addict since about 1952. This addiction continued during virtually the entire time of his employment by the TA, lasting until May 1971, when he entered into the methadone maintenance program of the Veterans Administration. He has been a successful par- ticipant in the methadone maintenance program since that time. The uncontradicted evidence is that, like many new methadone patients, he experimented briefly with the re- sumption of heroin during the early days of his methadone treatment, but he has been entirely free of heroin or other illicit drug use for over three years. Beazer ceased using iethadone in November 1973. Following his dismissal from the TA, Beazer has been steadily employed—first as a counselor in the Detoxification Program of the Veterans Administration, then as a super- visor with the Addiction Research and Treatment Corp. (en- gaged in drug rehabilitation work) and now as a Division Chief with an organization known as Wildcat Services, which employs methadone patients to perform building maintenance work. The TA’s Impartial Disciplinary Review Board made a finding that Beazer was handling his job at the TA compe- tently at the time of the termination proceedings, while he was participating in the methadone program. Beazer was l4a nevertheless terminated for violation of the TA’s rule against narcotic usage. Beazer’s employment in his various positions since leav- ing the TA appears to have been in all respects satisfac- tory. Beazer was formerly married but is divorced. Jose R. Reyes, an Hispanic, is 29 years old. Reyes was employed by the TA in 1968 as a Maintainer’s Helper— Group B (Mason), and in 1970 was promoted to Ventila- tion and Drainage Maintainer. Reyes was dismissed on January 20, 1972, after a medical examination showed evi- dence of the use of methadone. Reyes was a heroin user from about 1961 until February 1971, when he enrolled in a methadone maintenance pro- gram at St. Claire’s Hospital. This program is under the supervision of the Beth Israel Medical Center. The un- contradicted evidence is that Reyes has been a satisfactory participant in the methadone maintenance program. Reyes is still maintained on methadone, although he is in the process of withdrawing. Following his dismissal from the TA, Reyes was em- ployed in the methadone maintenance program of Mount Sinai Hospital. At present he is a full-time student at Fordham University. Reyes is married and has two chil- dren. Malcolm Frasier, a black, is 31 years old. In February 1971 Frasier applied for a position as a Bus Operator with MABSTOA, but was rejected because his driver’s license had been suspended. Frasier applied for the same position again in early 1973. However, in March 1973, when Frasier reported for processing he disclosed that he was a methadone maintenance patient. He was there- fore rejected for the position of Bus Operator. Frasier 15a also applied at about this time for the position of Bus Cleaner, but in April 1973 was rejected because of his former methadone use. Frasier used heroin from about 1968 until his entry into the Mary Scranton Foundation methadone maintenance program in October 1972. He was a successful participant in this program, and terminated the use of methadone in March 1973. From about 1964 to early 1974 Frasier was employed as a truck driver and a taxicab driver. Since early 1974 Frasier has been a shipping clerk for Baker, Knapp & Tubbs Furniture Co. Francisco Diaz, an Hispanic, is 40 years old. In 1970 Diaz applied at the TA for the position of Maintainer’s Helper—Group D (Sheet Metal). Diaz was rejected when he disclosed that he was a methadone maintenance patient. Diaz was a heroin user commencing about 1950 until he entered the methadone maintenance program of Beth Israel Medical Center in December 1968. Diaz continues to par- ticipate in the methadone program. Out of the four named plaintiffs, Diaz is the only one about whom any genuine question has been raised regard- ing his conduct while on the methadone program. Various clinical notes indicate suspicions of illicit narcotics use and alcohol use. However, Diaz has a long record of stable employment. From 1962 until 1973 he was employed as a sheet metal worker. Since 1973 he has been employed as a helper in a commercial bakery. There is no indication of any de- ficiency in Diaz’s performance in either job. Diaz is married and has a wife and children. l6a The Class Basically the class represented by the named plaintiffs consists of all those persons who have been, or would in the future be, subject to dismissal or rejection as to em- ployment by the TA on the ground of present or past participation in methadone maintenance programs. At one point in the proceedings there was consideration as to whether the class should be expanded to cover former heroin addicts who had become drug-free without the use of methadone. However, it has been agreed by all parties, with the concurrence of the court, that the class should not include this latter group. Defendants The TA is a public benefit corporation organized under the laws of the State of New York. The TA operates the subway system of New York City and certain bus lines in the city. MABSTOA is also a publie benefit corporation organ- ized under New York law, and is a subsidiary of the TA. It operates certain bus lines in New York City. Defendant William J. Ronan was chairman of the TA and MABSTOA from March 1968 until May 1974. Defendant David Yunich succeeded to the above posi- tions in May 1974. Defendants William L. Butcher, Lawrence R. Bailey, Harold L. Fisher, Constantine Sidamon-Eristoff, Donald H. Ellito, Edwin G. Michaelian and Mortimer Gleeson, along with defendant Yunich, constitute the total member- ship of the TA and the directors of MABSTOA. Defendants Frederic B. Powers and William A. Shea were members of the TA and were directors of MABSTOA 17a at the time this action was originally filed, and were sub- sequenily succeeded by defendants Michaelian and Sida- mon-Eristoff. Defendant Wilbur B. McLaren is Executive Officer in charge of labor relations and personnel for the TA. Defendant Louis Lanzetta is Medical Director of the TA. Also joined as defendants are the Civil Service Commis- sion of the City of New York and the Personne] Depart- ment of the City of New York: Harry I. Bronstein, Chairman of the Civil Service Commission and Director of the Personnel Department; and David Stadtmauer and James W. Smith, members of the Civil Service Commis- sion. In the case of all individuals, the amended complaint names also their “successors in office.” Defendants’ Policy Regarding Methadone It is the general policy of the TA that no person using narcotic drugs may be employed. Rule 11(b) of the TA’s Rules and Regulations provides: “(b) Employees must not use, or have in their pos- session, narcotics, tranquilizers, drugs of the Ampheta- mine group or barbiturate derivatives or para- phernalia used to administer narcotics or barbiturate derivatives, except with the written perinission of the Medical Director—Chief Surgeon of the System.” Methadone is regarded as a narcotic within the meaning of Rule 11(b). It is stipulated that no written permission has ever been given by the Medical Director for the em- ployment of a person using methadone, 18a The effect of this policy is that, if it is revealed that a current employee of the TA is a user of methadone, he will be discharged, or if an applicant for employment is a user of methadone, he will not be employed. This poliey applies to all positions in the TA regardless of whether they are operating or nonoperating positions. Moreover, the policy operates as an absolute exclusion—no consideration being given to individual factors such as recent employment his- tory, successful adherence to a methadone program, or evidence of freedom from heroin use. The situation is not entirely clear with respect to the policy of the TA regarding persons who have successfully concluded participation in a methadone program. The rea- son that the policy is not fully erystalized is that the ques- tion has not arisen in practice to any appreciable extent. It is clear that a relatively recent methadone user would be subject to the blanket exclusionary policy. However, the TA has indicated that there might be some flexibility with respect to a person who had once used methadone, but had been free of such use for a period of five years or more. But even on this point, there is no official direc- tive indicating that the person would be considered for employment. The reasons given by the TA as a basis for this policy will be dealt with in detail later in this opinion. They can be summarized now as follows. Methadone maintenance, as a treatment for heroin addiction, has been developed relatively recently. The TA contends that the use of methadone in place of heroin is merely the substitution of one narcotic for another. The TA asserts that metha- done maintenance treatment fails to a significant degree in remedying the basic problems of heroin addiction—with the result that a methadone maintenance patient embodies see laa 19a the underlying character defects which caused him to turn to heroin in the first place, and that there is a substantial risk that such a person, while on methadone, will revert to heroin or turn to other drugs or alcohol abuse. The TA contends also that there are significant adverse physio- logical effects from methadone itself, which would impair the performance of such person as an employee even if he faithfully refrained from heroin or other illicit drugs or aleohol abuse. The TA further contends that its opera- tions involve such serious problems of safety, both with respect to the public and to the employees, that they can- not prudently employ present or past methadone patients. Finally, the TA argues that there is no satisfactory way of screening the reliable methadone patient from the un- reliable, so that it is administratively necessary to have a blanket exclusionary policy. Summary of Conclusions I have concluded that the blanket exclusionary policy of the TA against methadone maintenance patients is con- stitutionally invalid. Plaintiffs have more than sustained their burden of proving that there are substantial num- bers of persons on methadone maintenance who are as fit for employment as other comparable persons. No one can have the slightest doubt about the heavy responsibilities of the TA to the public, including their duty respecting the safety of millions of persons who are car- ried on its subways and buses. However, in my view, the blanket exclusionary policy against persons on methadone maintenance is not rationally related to the safety needs, or any other needs, of the TA. I have concluded that the policy is the result of a mis- understanding by the TA regarding the nature and effects 20a of methadone maintenance. I do not say this in any spirit of criticism. The information about methadone maintenance in the public domain is all too fragmentary and confusing. Myths and misconceptions abound. On the other hand, the trial of this case has afforded a unique opportunity to explore in depth the somewhat controversial issues sur- rounding methadone. A balanced and realistic view of the subject is possible as a result. I should note that after about six days of trial the parties advised me that they were virtually finished with the presentation of their evidence. However, I was con- cerned about what appeared to be a disproportionately one-sided array of proof. Plaintiffs had introduced the testimony of an impressive group of experts, corroborated by laboratory and other tests, to the effect that a former heroin addict properly “stabilized” on methadone is free of undesirable narcotic effects and is entirely normal as regards mental and physical capabilities. The evidence demonstrated that methadone maintained persons were successfully employed in jobs of many kinds. As against this, the TA had brought forward a single expert witness, a pharmacologist, to present theories about certain adverse characteristics of methadone. However, the knowledge and experience of this witness regarding methadone maintenance were so limited that his testimony was of little value. The TA called its personnel director and medical director, who both testified to certain theories they held regarding methadone maintenance. However, these officials naturally lacked the depth of expertise pos- sessed by plaintiffs’ witnesses on this subject. The situation raised a serious question as to whether all sides of the problems involved in the case had been thoroughly explored, or whether any negative aspects of 6 tel oe i ee 2la methadone and methadone maintenance programs existed that had not been presented. I therefore requested the attorneys for the parties to submit proposals for further witnesses. The result was an additional nine days of trial at which exhaustive effort was made to probe the relevant questions with experts of varying points of view. The picture which emerges from all the evidence is basically this. There are some 40,000 persons in New York City on methadone maintenance. It is, at present, the most widely used method for rehabilitating heroin addicts. Among these 40,000 persons on methadone maintenance there is a great variation (as there is in the population as a whole) with regard to characteristics such as educational qualifications, employment skills and background, anti- social behavior, alcohol usage, and abuse of illicit drugs. But the crucial point made so strongly by plaintiffs’ wit- nesses was never convincingly challenged—that metha- done as administered in the maintenance programs: can successfully erase the physical effects of heroin addiction and permit a former heroin addict to function normally both mentally and physically. It is further proved beyond any real dispute that among the 40,000 persons in New York City on methadone maintenance (as in any compa- rable group of 40,000 New Yorkers), there are substantial numbers who are free of anti-social behavior and free of the abuse of alcohol or illicit drugs; that such persons are capable of employment and many are indeed employed. It is further clear that the employable can be identified by a prospective employer by essentially the same type of procedures used to identify other persons who would make good and reliable employees. Finally, it has been demonstrated that the TA has ways of monitoring em- ployees after they have been hired, which can be used 22a for persons on methadone maintenance just as they are used for other persons employed by the TA. This proof applies with equal, if not greater, force to those former heroin addicts who have successfully com- pleted participation in a methadone program. I have therefore concluded that the present blanket ex- clusionary policy of the TA against employing, or consider- ing for employment, any past or present methadone main- tained person regardless of his individual merits, is un- constitutional. Facts Heroin It will be important to understand the differences be- tween methadone and heroin. Heroin is a nareotie which is generally injected into the bloodstream by a needle. It is a central nervous system depressant. The usual effect is to create a “high’— euphoria, drowsiness—for about thirty minutes, which then tapers off over a period of about three or four hours. At the end of this time the heroin user experiences sickness and discomfort known as “withdrawal symptoms.” There is intense craving for another shot of heroin, after which the cyele starts over again. A typical addict will inject heroin several times a day. There are variations in the severity of heroin addiction. For instance, it is possible for a heroin addict to take moderate amounts of the drug—just enough to avoid the withdrawal symptoms, without producing the euphoric highs. Such a person might function somewhat normally. However, this type of controlled heroin addict is very rare. cepeieeeen bake en & qe. wind ouee. ee ere ee eee Methadone Methadone is a synthetic narcotie and a central nervous system depressant. If injected into the bloodstream with a needle, it can produce basically the same effects as heroin. Methadone has been used, under medical controls, as a pain killer. Also, methadone is used in “detoxification units” of hospitals to take addicts off of heroin. This is done by switching a heroin addict to methadone and gradu- ally reducing the doses of methadone to zero over a period of about three weeks. The patient thus detoxified is drug free. Moreover, it is hoped that the program of gradually reduced doses of methadone leaves him without the with- drawal symptoms, or the “physical dependence” on a nar- cotie. It appears that these detoxification programs, without a follow-up of further treatment are frequently unsuccess- ful, and that there is a high incidence of reversion to heroin. There are various theories about why this is so. Persons involved in programs such as Phoenix House and Odyssey House take the view that the reason that “physical” detoxification is not enough is because the un- derlying causes of heroin addiction are psychological problems and problems of life-style, which must be ad- dressed in an appropriate manner. On the other hand, there is a body of opinion which holds that, in addition to psychological and life-style problems, there are some physical problems from heroin addiction which persist after any short-run detoxification. This theory is that there is a physical discomfort or a physical dependence, which requires treatment. The major treat- ment method thus far devised is maintenance on stable doses of methadone. Such methadone maintenance is 24a feasible because of the following characteristics of meth- adone. We are dealing here with methadone taken orally. When taken orally, methadone is radically different from heroin. Whereas heroin moves rapidly in and out of the blood- stream causing violent highs and lows, oral methadone passes into the body tissues, and then is fed into the blood- stream gradually over a period of twenty-four hours or more. There is a relatively constant or stable level of methadone in the bloed during this time. When a person is first on oral methadone he may experience narcotic effect in some degree—such as euphoria, and drowsiness. But it has been found that the body will become tolerant to oral methadone rather quickly, and that after this toler- ance is achieved, any narcotic effect ceases. The evidence is that a person who has attained this tolerance can take a constant dose of methadone once a day and has neither the euphoric effects nor the withdrawal symptoms asso- ciated with heroin. The question arises as to what purpose there is in taking methadone if no euphoria or pleasurable effects are ob- tained. According to the expert evidence, the purpose is two-fold: First, methadone produces what is called a “blockade” or “cross-tolerance,” which prevents a metha- done user from experencing any “high” from injecting heroin. It should be noted that this cross-tolerance does not apply when the methadone user attempts to use sub- stances other than heroin—such as cocaine, barbiturates, amphetamines, or alcohol. Second, experience indicates that former heroin addicts may have some symptoms of discomfort or drug dependence for a fairly long period of time after discontinuing the use of heroin. The nature of these symptoms obviously varies to some extent from MOND ee ee 25a individual to individual. The precise cause of such symptoms is a matter of some debate—as to whether the cause is physical or psychological or a combination of both. These matters do not require a detailed explora- tion in this opinion. The evidence convinces me that the symptoms we are talking about are what would generally be considered medical or physical symptoms. Clearly they are not, in and of themselves, mental or psychiatrie de- ficiencies or disurders. In any event, the uncontradicted evidence is that these symptoms are cured by stable dosage of methadone. Origin of Methadone Maintenance Programs It is well known that methadone maintenance, as a treat- ment for heroin addiction, originated with Dr. Vincent Dole and his wife, Dr. Marie Nyswander, at Rockefeller University. Dr. Dole testified in this case. In 1963 Dr. Dole became Chairman of the New York City Health Department’s Health Research Committee on narcotics, and entered into an intense research activity regarding narcotics. One of his projects was to determine if narcotics addicts could be stabilized on medically con- trolled doses of drugs. In other words, could the radical highs and lows be eliminated by some constant dosage of a drug? He found that this was impossible with short- acting injectible drugs such as heroin and morphine. How- ever, the results were radically different when he tried oral methadone. Drs. Dole and Nyswander found through their experiments that heroin addicts could become stabi- lized on constant doses of methadone with the results de- scribed earlier in this opinion. A demonstration methadone maintenance program was set up at the Beth Israel Medical Center. Twelve patients 26a were admitted in the first group and by 1965 about 200 patients were being treated. At this time, Dr. Harold R. Trigg, who was head of the Narcotics Detoxification Serv- ice at Beth Israel, became interested in the methadone maintenance project. Dr. Trigg later became, and still is, Chief of the Methadone Maintenance Program of the Beth Israel Medical Center. At the present time Beth Israel treats about 6500 persons on methadone maintenance in 35 separate clinics. Dr. Trigg testified in this case. As indicated earlier in this opinion, there is substantial agreement that many persons attempting to overcome heroin addiction have psychological or life-style problems which reach beyond what can be cured by the physical tak- ing of doses of methadone. Dr. Dole and his associates were acutely aware of this. Consequently the pattern which was developed in the Beth Israel program and in methadone maintenance programs subsequently established was to provide a variety of services including counseling, medical and psychiatric care, educational and vocational guidance, and recreational facilities. Certain minimum standards with respect to these services are set forth by both federal and state regulations. Current Methadone Maintenance Programs Today there are approximately 75,000 persons under methadone maintenance treatment in the United States, of which about 40,000 are in New York City. The methadone maintenance programs are of two basic types. The first type is referred to as “public” or “semi- public.” These programs are non-profit. The second type is referred to as “private.” These programs are operated for profit. 0 ER MEO oir ale Be RR in te 0 Met a P Reiter 27a The five major public or semi-public methadone main- tenance programs in New York City are: (1) The Beth Israel program, referred to above, with 35 clinics treating 7100 patients ;* (2) A program administered by the City of New York with 39 clinics treating 12,400 patients (hereafter referred to as “the City program”) ; (3) A program administered by the Bronx State Hospital and the Albert Einstein College of Medicine, with 7 clinies treating about 2400 patients; (4) A program operated by the Addiction Research and Treatment Center (ARTC) with 6 clinics treating about 1200 patients; and (5) A program operated by the New York State Drug Abuse Control Commission (DACC), with 8 clinics treating about 1100 patients. The total number of patients treated in public or semi- public programs is about 26,000. It appears that these pro- grams are financed almost entirely by federal, state and city funds. There are about 25 private programs in New York City treating a total of about 14,000 patients. All methadone maintenance programs throughout the United States are required to comply with regulations of the Food and Drug Administration, promulgated December 15, 1972, 21 C.F.R. § 130, et seg. Programs in New York State are required to comply, in addition, with the somewhat ‘The figures given in this section are from the testimony of Dr. Frances Gearing, of the Columbia University School of Public Health. These figures are as of December 31, 1974. 28a more stringent regulations of the New York Drug Abuse Control Commission, promulgated in May 1974, 14 N.Y.C. R.R., Part 2021. Compliance with these regulations is monitored by the DACC, which acts on behalf of the state and also on be- half of the federal government by contract. Both the federal and state regulations set forth require- ments for the types of persons who can be admitted to the program, the kinds of services which must be rendered, the staffing of the programs, the days and hours of opera- tion and record keeping, controls on the administration of methadone, and tests for illicit drug usage. A number of the clinics under the aegis of both the Beth Israel and the City programs are located in hospitals not operated either by the City or by Beth Israel. These ar- rangements are pursuant to contract. The standards for the clinics are set by Beth Israel and the City. The hospi- tals provide facilities and assist in various ways such as consultation in the hiring of personnel. Fourteen of the Beth Israel clinies and 36 of the City clinics are operated in this way. Among the hospitals where City methadone maintenance clinics are located are New York Hospital, Knickerbocker Hospital, Harlem Hospital, Bellevue Hospi- tal, Eimhurst Hospital and Beekman Downtown Hospital. The Course of Methadone Maintenance T reatment In order to become enrolled in a methadone program, a person is supposed to have been a heroin addict for at least two vears. In other words, the sole purpose of these programs is for the eure of heroin addiction. When an applicant is accepted for a program, the first step is to have him detoxified from heroin and from any other illicit drug abuse or aleohol abuse. For this purpose 29a a short period of in-patient treatment at a hospital is usually required. In connection with this process, a stable or constant dosage of methadone is worked out to be administered to the patient over a protracted period of time. Among methadone maintenance programs there are basically two theories regarding maintenance on stable doses. There are what are termed “high dose” programs, where the dos- age is in the range of 80-100 milligrams per dose. Beth Israel is a high dose program. The philosophy of such programs is to give the patient sufficient methadone to make sure that any physical dependence or craving for heroin will be eliminated and to make sure that the block- ade or cross-tolerance against heroin is effective. The pro- ponents of such programs further believe that there should be no pressure upon methadone patients to discontinue methadone; that there is nothing intrinsically wrong or harmful about the usage of methadone over an indefinite period of time; that such usage is essentially medicinal; and that the sole criterion which should be used to de- termine whether or not the patient should be on methadone is his ability to function properly in society. The “low dose” programs have a somewhat different philosophy. Their proponents believe that the proper goal for a methadone maintenance program should be to have the patient on the program as short a time as possible, that the proper goal of a methadone maintenance program should be detoxification not only from heroin, but also from methadone. They believe that detoxification from low doses of methadone is easier than from high doses, and thus favor the low doses. Addiction Research and Treatment Corp., which has clinics in Brooklyn and Har- lem, conducts a low dose program. 30a However, except for the differences noted above, the basic functioning of the high dose and low dose programs is similar. After detoxification from illicit drug abuse, the patient commences taking constant doses of methadone each day. Under federal and state regulations, a patient is required to appear at the clinic and take his dosage of methadone in the presence of a staff member at least six six days a week for the first three months. The seventh day’s dose may be taken at home. After a certain period of time, if the patient’s conduct is satisfactory, he may be permitted to reduce his attendance at the clinic and take more of his daily doses at home. However, even after two years of participation in a program, the patient is re- quired to make a minimum of two visits to the clinie each week. The patient must participate in counseling—at first on a daily basis, and less frequently as time goes on. The patient must be observed in various ways to de- termine whether he is abusing drugs or alcohol. It appears that methadone patients, at least in the first stages of treatment, sometimes attempt to return to heroin. But the uncontradicted evidence is that the blockade or cross-toler- ance is indeed effective, and that persons on methadone are no longer able to find satisfaction in heroin; and then generally stop trying. However, for one reason or another, such as a possible lapse in methadone dosage, a patient might occasionally revert to heroin in a serious fashion. In any event, urine tests for heroin usage are required by federal and state regulations to be administered at least once a week. The evidence further shows that, by the use of a some- what different chemical analysis, a urine test will reveal other drugs such as barbiturates, and amphetamines, al- en ee 3la though detection of cocaine is difficult. Federal regulations require urine tests once a month for evidence of drugs other than heroin. It further appears that clinics such as Beth Israel take steps to make sure that their patients sre frequently observed to determine whether there is any drug abuse revealed by behavior or appearance. These clinics also watch closely for signs of excess drinking. These clinics also take precautions against abuse of methadone. One problem is the possibility that a patient may take excessive quantities of methadone, over and above the dose prescribed by the clinic. It is conceivable that he might do this by obtaining methadone on the black market, or by taking two or three days’ doses at one time where the clinic has given him methadone to be admin- istered outside the clinic. A different type of problem is the possibility that a methadone patient might sell his methadone outside the clinic, instead of taking it himself. Various precautions are taken to guard against either type of abuse—including strict control of the issuance of methadone doses, observations of the behavior of the pa- tients, and observation of any signs of manipulation (1.e., stories by the patient of losing his methadone, ete.). It appears that during the first few months that a patient is on a methadone maintenance program, it will become reasonably apparent whether he is genuinely determined to rid himself of illicit drug usage and is conducting him- self accordingly. There is a certain proportion of metha- done maintenance patients who do not thus conform—who are showing evidence of illicit drug use of excessive drinking, who make little or no attempt at rehabilitation, who loiter or otherwise engage in undesirable conduct. These are what those experienced in the field call the “visible” cases. Many of them drop out of the programs 32a within the first few months or the first year. Many of them are discharged. In some cases such patients are kept on in the hope of improvement. But their situation is evident to clinic personnel. As far as employment is con- cerned, the evidence indicates convincingly that the clinic personnel are not likely to refer or recommend such per- sons. For patients who do perform satisfactorily on the pro- gram, treatment will generally continue a year or more. The longest term of methadone maintenance treatment re- vealed in the record in the present case is four vears. Often however, the patient reaches a point where he de- sires to terminate his usage of methadone. He believes that he can do without it, and wishes to avoid the trouble of frequent appearances at the clinic. In such a case, the dosage of methadone is reduced to zero over a period of time. Many patients, after terminating usage of metha- done, function normally without it. Some find that they return to methadone maintenance. Physical Effects of Methadone Two basic questions arise with respect to the employ- ability of methadone maintenance patients. The first is whether methadone maintenance patients will have any narcotic effects or other side effects related to the usage oi methadone. The second is whether the patient will re- turn to heroin, or will abuse other illicit drugs or aleohol. Both of these questions have been referred to in earlier portions of this opinion. However, they merit further discussion. As an initial proposition, one might assume that metha- done, being a narcotic and a central nervous system de- OLLIE PO ER et i 33a pressant such as heroin, raust inevitably produce narcotic effects such as euphoria, drowsiness, inattention, departure from reality, and slowing of reactions. The TA’s expert witness, Dr. Vincent Lynch, a pharma- cologist, testified that metnadone “undoubtedly” occupies parts of the brain which would affect “cognitive faculties, the ability to respond voluntarily in certain situations.” Dr. Lynch also testified that even in a person who has been maintained on a stable dose of methadone for a period of time, the person’s functions would be inhibited for a short period of time each day after taking his dose of methadone. Dr. Lynch disputed the idea that a methadone patient could really be “stabilized” on a constant dose. His opinion was that a tolerance would be attained which would make methadone ineffective to prevent the discomfort or physical dependence causing the heroin craving. Considering Dr. Lynch’s testimony in the light of the evidence as a whole, I find Dr. Lynch's testimony to be too speculative to be of much value. For instance, Dr. Lynch’s methadone “tolerance” theory was not based on any tests with human beings, and appears to ignore the marked differences between methadone and other drugs such as heroin. The overwhelming weight of the evidence is to the effect that a methadone maintenance patient can perform nor- mally, and that undesirable side effects are lacking. It appears that during the twelve years that have elapsed since the initial investigations of methadone maintenance, there has been a remarkably intensive effort to test and observe methadone maintenance patients and to gather statistics about their performance. Dr. Robert DuPont, Jr., Director of the Special Action Office of Drug Abuse Prevention in The White House, and Di- 34a rector of the National Institute on Drug Abuse in the Department of Health, Education and Wel- fare, testified that there had been a “vast array of tests” regarding the ability to drive vehicles, ability to maneuver the hands, reaction to signals, sleep patterns, sexuality, and that the evidence is “that the person who is maintained on methadone performs within the normal range of expectation of a normal population.” The detailed results of a number of such tests were in- troduced into evidence in this action, and indicated normal behavior by methadone maintenance patients. Dr. Vincent Dole testified regarding his many years of observation of persons stabilized ex methadone, and stated: “Q. Doctor, has your physiological research or that of your colleagues indicated that there is any disrup- tion of the cognitive faculties when a person is main- tained on methadone? “A. No. On the contrary, we have much data by now that the cognitive and other emotional and intellec- tual faculties of the mind are normal. We have done the types of tests that you already probably had re- ported through Dr. Gordon’s laboratory on specific things such as IQ measurements and various other perceptual tasks. What probably is more important to this point is now a very large record with some tens of thousands of patients who have gone to school and had high grades, who have accomplished much in responsible jobs, in business and elsewhere.” Regarding the possibility of a methadone maintenance patient obtaining heroin-type euphoria, Dr. Dole testified that many patients have come into methadone treatment 35a centers “on the mistaken theory that they were going to get a free ride and a free euphoria for a long time” and that such patients have very soon discovered “that they do not get euphoria.” Dr. Paul Cushman, Jr., Director of the Methadone Main- tenance Clinic of St. Luke’s Hospital (a clinic operated under the direction of the Beth Israel Medical Center) testified that he had seen thousands of methadone main- tenance patients and that they are basically “indistinguish- able” from “comparable non-drug people.” Dr. Cushman testified that as to characteristics such as alertness, ability to handle challenges, ability to perform work such as elee- trical circuit work, welding, mechanical repairs, and so forth—there is “no difference between a normal subject and the methadone maintained patient after he has been stabilized on his methadone.” Dr. Irving Lukoff, of the Addiction Research and Treat- ment Corporation, has been performing research for some years with respect to the results of methadone mainte- nance. Dr. Lukoff contributed much of the factual material for an article entitled “Methadone, The Forlorn Hope” by Edward J. Epstein in the Summer 1974 issue of The Public Interest. This article raised a number of questions about methadone maintenance, including the problem that many persons who commence maintenance programs drop out or are discharged.’ For purposes of the present case, * Methadone maintenance has received both criticism and com- mendation in articles, books—and an occasional television item. The Epstein article questions certain of the medical theories espoused by Dr. Dole and his associates and questions certain statistics sometimes used to show the favorable results of methadone maintenance. For instance, the Epstein article cites certain “evi- dence” and authorities against the “blockade” theory of methadone. Of course, my findings and conclusions in the present case must rest on the testimony and other evidence introduced in 36a the important point is that persons who remain in a metha- done maintenance program for a substantial period of time are the result of a “self-cleansing” process which goes on in the program, according to Dr. Lukoff. Dr. Lukoff testified that he has seen hundreds of patients maintained on methadone who function normally in terms of all obvi- ous signs, and that they are “functioning the way every- body else does.” Dr. Seymour Joseph, Deputy Commissioner of the New York State Drug Abuse Control Commission, testified that when a person is stabilized on methadone there are no de- ficiencies in day-to-day conduct such as ability to think and perform required functions. Dr. Joyce Lowinson, who was responsible for the first methadone maintenance unit under Dr. Vincent Dole, and since 1968 has been in charge of the methadone mainte- nance program at Bronx State Hospital, testified that par- ticipants who are stabilized on methadone function normally, and that there is “no way of distinguishing a person on methadone from a person who is not on metha- done” except by means of a urine or blood test revealing the presence of the substance. In contrast to Dr. Lynch's testimony that a person stabilized on methadone will feel a narcotic effect for a period of time immediately after taking his daily dose, Dr. Lowinson testified that such a the case, rather than on the views of authors expressed in articles, where these authors would not be subject to cross-examination about the extent of their knowledge, ete. But 1 would note a state- ment quoted with approval in the Epstein article by Dr. Avram Goldstein, director of the Addiction Research Laboratory at Stan- ford: “Nothing I have said should be interpreted as ‘debunking’ methadone or derogating its importance. It is a fantastically effective tool for bringing addicts into a new and helpful kind of therapeutic environment.” — + EPL bee 4a. 37a person, when he takes the daily dose of methadone, “is in no way changed, and is no different after he has taken his medication.” Dr. Lowinson contrasted the taking of the dose of methadone with what results from the injection of heroin where there is the immediate “rush” or “high.” There was also considerable evidence on the question of whether methadone maintenance produces undesirable “side effects.” The evidence is that, during the time pa- tients are being brought up to their constant dosage of methadone (a period of about six weeks), there may be complaints of drowsiness, insomnia, excess sweating, con- stipation, and perhaps some other symptoms. After the patient is stabilized, he becomes tolerant to methadone an side effeets diminish and largely disappear. How- ever, some side effects may persist. For instance, in a group of methadone maintenance patients studied by Dr. Mary Kreek of Rockefeller University, 48% were ex- periencing excessive sweating; 17% had constipation ; 16% had insomnia; 22% had some libido problem. How- ever, the evidence is clear that these conditions do not particularly differentiate this group from other parts of the population. Moreover, except in rare cases, such con- ditions have no effect upon employability. For instance, the constipation problems could be cured by a common laxative. The TA referred at the trial to a “package insert” which is required by FDA regulations to be included with metha- done sold to physicians, hospitals, and clinics. The pack- age insert contains a description of various matters, in- cluding warnings about possible side effects. The package insert states in part: “Use in Ambulatory Patients—Methadone may im- pair the mentai and/or physical abilities required for 38a the performance of potentially hazardous tasks, such as driving a car or operating machinery. The patient should be cautioned accordingly. “Methadone, like other narcotics may produce ortho- static hypotension in ambulatory patients.” There was extensive inquiry at the trial about the sig- nificance of this warning, justifying in my view, the fol- lowing findings: Warnings in package inserts such as this one tend to include every possible adverse effect that might occur under any circumstances of usage. Although the side effects referred to in this warning might occur where methadone is being used as a pain killer or for some similar purpose, such effects do not occur in a person stabilized on a constant dose of methadone. To summarize my conclusions on the subject, I find that a person maintained on a constant dose of methadone can perform normally by every standard that relates to em- ployability, and that, except in rare cases, there are no side effects making such a person incapable of being em- ployed. These, of course, are propositions which plain- tiffs have consistently espoused. They have been tested in every way that the participants of this trial could think to test them. The overwhelming weight of the evidence is in their support. Illicit Drug and Alcohol Abuse A prospective employer of a methadone maintenance patient would naturally question the chances that such a person would revert to heroin, or use other illicit drugs. One aspect of the problem is the possibility that the metha- done maintenance patient, unable to find further satisfac- tion in heroin, might substitute other drugs or alcohol. 0 Ok Mcteene. alt peed fete. a ~ ~ 39a The TA contends that there are risks of large propor- tions among methadone maintenance patients. The TA relies on a study performed by Chambers and Taylor in 1970 to the effect that, in a group of methadone patients in Philadelphia who had been under treatment for at least 24 months, 97.6% of them were found to use an illicit drug at least once during a one-month period. The TA relies on the testimony of Dr. Mitchell S. Rosenthal, director of Phoenix House, which operates a “drug free” program for the treatment of narcotic addicts—i.e., no methadone or other drug is used following the initial detoxification. In the opinion of Dr. Rosenthal, “cheating” by methadone maintenance patients with illicit drugs had been shown by studies to be in the magnitude of 70%. The only specific study Dr. Rosenthal was able to refer to was the one by Chambers and Taylor. On the other hand, Dr. Rosenthal testified that a patient in a methadone maintenance clinic is monitored so that his use or non-use of drugs can be detected by an employer in a way that does not exist for other employees who might be abusing drugs. Plaintiffs presented evidence that the conditions under which the Chambers and Taylor study was performed bore no resemblance to the conditions that exist today in a properly conducted methadone maintenance program. Moreover, plaintiffs presented statistics and estimates in- dicating that the use of illicit drugs among methadone maintenance patients involves a relatively small, and gen- erally visible, minority. Before going into plaintiffs’ evidence on this point, certain observations are necessary. Although fairly de- tailed information was presented about the major public methadone maintenance programs, very little specific in- 40a formation was provided regarding the private clinics. Obviously, neither side wished to prolong the case to the extent of subpoenaing witnesses from all, or even some, of the 25 private clinics in New York City. There was general testimony to the effect that the private clinics might tend not to be as well run as the public programs. There was also testimony indicating that the quality and performance of the patients in private clinics might be worse than that of patients in the public programs, al- though the director of one of the public programs, ARTC, testified that ARTC draws from the hardest of the hard core addicts. The information about the private clinies is not really sufficient to permit a conclusion that statisties about matters such as drug abuse would be either better or worse for the private clinics than for the public pro- grams. In any event, since the public programs treat about 26,000 out of the 40,000 methadone patients in New York City, statistics and other information drawn from these public clinies cover the majority of methadone mainte- nance patients in New York City, and will be relied upon with this in view. The public clinies appear to be conscientious in accumu- lating information about drug abuse. They also note in- stances of problem drinking. In the case of drugs, this information comes from the periodie urine tests. With regard to drinking, it appears that the program person- nel are trained to be sensitive to signs of such a problem. The witnesses in this case basically agreed that metha- done maintenance patients will sometimes attempt to “chal- lenge” their methadone—i.e., attempt some usage of heroin. This usually happens during the first weeks on a program, GE etait Se. & 4la although it can also happen later. Plaintiffs’ witnesses were emphatic in their view that these attempts by a person stabilized on methadone to return to heroin fail because of the blockade or cross-tolerance effect. For in- stance, Dr. Beny J. Primm, Executive Director of ARTC testified : “...a@ patient who is on methadone would have no rea- son whatsoever, once stabilized, to again shoot heroin. I want that absolutely clear. It is just pharmacolog- ically impossible for him to realize any feelings from the heroin because of the cross tolerance of methadone and heroin.” However, this blockade or cross tolerance effect does not relate to drugs other than heroin, or to alcohol. Dr. Trigg of Beth Israel testified that about 5,000 out of the 6,500-7,000 patients in his clinies have been on methadone maintenance for a year or more. He further testified that 75% of this 5,000 are free from illicit drug use. Dr. Bihari of the City’s methadone maintenance pro- gram testified that, for patients who have been in that program more than six months only 4% have signs of heroin usage in urine tests, and 11% have signs of other drugs. Dr. Bihari testified that 6% of the City’s patients have alcohol problems. Dr. Lowinson of the Bronx State Hospital program stated that, for patients who have been in that program six months or more, 6-7% show some evidence of heroin usage in urine tests, and another 12% show evidence of usage of barbiturates or other sedative or hypnotic drugs. Dr. Lowinson testified that 5% of the patients have alcohol probiems. 42a Dr. Primm of ARTC testified that, among his program’s patients who have been in treatment a year or more, 60- 70% are adjusted sufficiently that they are free from any drug or alcohol problem. Dr. Primm testified that his pro- gram’s patients are drawn from the “hardest of the hard core” addicts. Dr. Kreek testified about a study relating to 129 of the first patients in methadone maintenance programs. At the time of the study these patients had been in programs from three to about five years. There was evidence of continued intermittent heroin abuse in the case of 2 out of the 129. There was evidence of intermittent use of other drugs in the case of 6 out of the 129, but these other drugs included barbiturates and valium. Dr. Kreek noted that valium is the second most frequently used drug by the general population—second only to aspirin. There was no indication of any cocaine use among the 129. [ conclude from all the evidence that the strong majority of methadone maintained persons are successful, at least after the initial period of adjustment, in keeping them- selves free of the use of heroin, other illicit drugs, and problem drinking. Employment There is impressive evidence about successful employ- ment among methadone maintenance patients. Seventy per- cent of the Beth Israel patients who have been in the pro- gram for a “period of time” are employed. Sixty percent of those who have been in the Bronx State Hospital pro- gram over a year are employed. In the City program, 45% are employed in paying jobs, 11% are homemakers, and 6% are full-time students. Dr. Primm of ARTC., testi- _ ancl 43a fied that 35% of his program’s total population (including those in the methadone program and those in a drug free program) are employed. The percentage is greater for the methadone program alone. In the DACC program, 80% are employed. A statistical study by Dr. Frances Gearing of the Colum- bia University School of Public Health shows that for four groups of patients studied, the percentage occupied in gainful employment, homemaking, or school attendance after one year were 59%, 63%, 41% and 34% respectively. Consolidated Edison hires methadone maintenance pa- tients. The policy of Consolidated Edison is to consider for employment a former heroin addict who has performed satisfactorily on a methadone maintenance program for a minimum of one year. Con Ed has hired about 100 former addicts under this policy. Such employees have satisfactorily occupied a variety of positions at Con Ed including monitoring various types of controls, and work on street crews. Con Ed advances such employees along normal promotional lines in accordance with their per- formance skills, the sole exception being that former addicts are excluded from any nuclear facility in accord- ance with Con Ed’s understanding of the law. Con Ed believes that its experience with former addicts partici- pating in rehabilitation programs has been successful. A special study of the work of 13 Beth Israel patients at Con Ed indicates that their performance was as good or better than that of the average Con Ed employee. The evidence further indicates that methadone mainte- nance patients have been satisfactorily employed as sheet metal workers, truck drivers, taxi drivers, drill press operators, teachers, electricians, mechanics, draftsmen, clerks, cashiers, bank tellers, and a great variety of other 44a positions. Local employers who are now hiring methadone maintenance patients at least on a trial basis are Chemical Bank, New York Life, Metropolitan Life, J. C. Penney, McGraw-Hill, Seagram, Columbia Presbyterian Hospital, New York Telephone Company, New York Off-Track Bet- ting Corporation, and others. An official of the Sheetmetal! Workers International Association testified that his organi- zation is bringing methadone maintenance patients into its apprenticeship program, and that they are performing work such as welding, using heavy machinery, and working on scaffolding. Dr. Joseph testified that there is a large segment of methadone maintenance patients who become “non-visible”, in that they are performing well and are free of serious problems. With regard to employment, he testified: “We have people in methadone maintenance programs who are performing any and every type of service in this city and state, ranging from being outstanding members of the profession to laborers, going through the gamut of electricians—you name it.” According to Dr. Joseph there are thousands of such per- sons. Classification of Persons on Methadone Maintenance There is certain other information in the record which helps give perspective on the question of employability of persons on methadone maintenance. The witnesses from the Beth Israel program testified that about one-third of the patients in that program, after a short period of adjustment, need very little more than the doses of methadone. The persons in this category ee ee eh ee 45a are situated fairly satisfactorily with respect to matters such as family ties, education and jobs. Another one-third of the patients at Beth Israel need a moderate amount of rehabilitation service, including vocational assistance, for a period of several months or about a year. A person in this category may, for instance, have finished high school, but may have a long heroin history and no employment record. A final one-third of the patients at Beth Israel need intensive supportive services, are performing in the program marginally, and either will be discharged or will be on the brink of discharge. Dr. Harvey Gollance estimated that about 20% of Betli Israel’s patients drop out of the program. At the Bronx State Hospital 10% of the patients are discharged during the first year. Dr. Lukoff from ARTC described it this way. He stated that about one-third of ARTC’s patients are “stereotype” addicts, who have started on heroin in their teens, and have had severe problems with family ties, education and crime. The other two-thirds of the ARTC patients are persons who started on heroin in their 20’s, who tend to have finished school or military service, and who have maintained better situations with respect to family ties and employment. About 40-45% of the first third drop out in the first year of treatment. About 75-80% of the other two-thirds remain in the program. The evidence indicates that problem patients—those who are abusing drugs or alcohol and who are not making progress in rehabilitation—are identifiable after about 3-6 months, if not sooner. On the question of employability—many methadone pa- tients (about 30% in the case of Beth Israel and Bronx State) are employed when they enter the programs. Others 46a are employed within a matter of weeks. In many cases, however, the clinic personnel feel that they should wait 6-9 months or even a year before making a recommendation for employment. Identification of Those Employable As a result of the evidence at the trial, there can be no real dispute about the fact that substantial numbers of methadone maintenance patients are capable of successful employment. The question remains as to how a prospec- tive employer can identify those who will perform satis- factorily, and screen out those who are still abusing drugs or have other undesirable characteristics. There was in- tensive inquiry on this question at the trial. My conclusion is that an employer such as the TA can perform this screening for methadone maintenance patients in basically the same way as in the case of other prospective employees. The TA, like any large employer, has staff and facilities for ascertaining the mental and physical qualifications of prospective employees. The TA also has various systems for monitoring the performance of employees after they are hired. In cases where particular information must be obtained, the TA will consult with physicians, psychiatrists, hospitals, and other sources. The TA must always make the best determination it can as to whether the applicant will have proper work habits, and whether there is a risk of undesirable conduct such as thievery, drunkenness or narcotic usage. The TA, like any employer, does not rely on hunch, but obtains objective evidence—i.e., information about performance at school, employment history, current employment record, family ties, medical or psychiatric history, criminal record, and so forth. — FS. em see Oe ME i chen ale ar able) ak ad! 6 en Oe eee Se ae es 47a In this connection, it is important to note that the TA has no blanket prohibition against the hiring of persons with criminal records. Individual consideration is given to the nature of the crime, and to the question of how it might re- late to the job applied for. For instance, a record of theft would be considered against a person applying to handle money. The prior criminal record would be considered in the context of recent job stability and evidence of rehabilita- tion. The TA has no blanket prohibition against the employ- ment of persons taking drugs such as tranquilizers. When evidence of such usage appears, the TA believes it should “dig a little deeper” to find out about the circumstances. Inquiry may be made with the person’s doctor. Considera- tion is given on an individual basis. The TA has no absolute prohibition against the employ- inent of persons formerly confined to a mental institution or persons who have been, or are currently being, treated by a psychiatrists on retainer to act as consultants where prob- lems such as this arise. But again, the matter of employ- ability is considered on an individual basis. The TA does not maintain any blanket rule barring the hiring of persons with such medical problems as diabetes, epilepsy or heart disease. Individual consideration is given to applicants having these conditions. It is the policy of the TA to consider the hiring of such persons on an indi- vidual] basis in light of such factors as their actual perform- ance capabilities and the safety sensitivity of the job to which they seek appointment. I return to the matter of objective exidence of emplov- ability, considered with respect to methadone maintenance patients. A crucial point here is that the record in this case demonstrates that there are large numbers of metha- 48a done maintenance patients who are able to provide to a pros- pective employer satisfactory objective evidence of employ- ability. For instance, many methadone maintained persons can demonstrate that they have been on a reliable metha- done program for a year or more; that they have faithfully abided by the rules of the program; that, according to sys- tematic tests and observations, they have been free of any illicit drug or aleohol abuse for the entire period of treat- ment, excluding a possible adjustment period; that they have the necessary education or other training for the job; that they have stable family ties; and that they have a cur- rent successful employment record, and a successful work history. In the background, of course, is the record of heroin ad- diction. Medical Director Lanzetta of the TA takes the view that when a man goes on heroin there is “some de- ficiency somewhere”, which presumably persists thereafter, particularly while the person needs the “erutch” of metha- done maintenance. Although there is no doubt that heroin addiction is a problem of the most severe nature, the pre- sumption that heroin addiction invariably stems from some character defect, making a person more or less permanently unemployable, cannot be supported. The question about whether a person maintained on methadone has some defect or deficiency making him invariably a risky employee has been dealt with in detail heretofore in this opinion. The evidence is conclusively to the contrary. The question in the individual case is whether the metha- done maintenance person, despite the history of heroin ad- diction, is currently capable of employment. If the TA were being asked to employ a marginal or doubtful case— i.e., a person who had been in a program only a short time and who had no work history or current employment record 49a —the TA might well be justified in giving little or no con- sideration to such an applicant. But the TA’s blanket ex- clusionary policy applies with equal strength to the many methadone maintained persons who, from any rational standpoint, have objectively demonstrated their capability of being employed by means of evidence of freedom from drug abuse and employment record. Moreover, the TA’s policy applies not only to what are obviously its most sensitive positions—such as subway motormen, subway cowermen, bus drivers—but applies to all jobs in the TA, such as clerks and car cleaners. The TA refuses to consider ‘. methadone maintenance person for employment, regard- less of the evidence he presents about employability and re- gardiess of what type of job he seeks at the TA. [ have referred a number of times to evidence of freedom from drug or alcohol abuse. The obvious source of such information is the methadone maintenance program. In connection with obtaining information from metha- done maintenance clinics, the TA makes two points: First, that some of the clinics—particularly the private ones— may not provide reliable information; and second, that the clinics may be legally prevented from giving full informa- tion to an employer regarding a patient. Neither point is of weight in the present case. It is true that several of the witnesses indicated that there might be private clinics which could not be relied upon for accurate information about drug and alcohol abuse. Also, one of the witnesses from a “drug free” program ex- pressed skepticism about the ability of one of the public programs—the City program—to consistently provide re- liable information. On the latter point, the current direc- tor of the City program was thoroughly interrogated in this case, and the weight of the evidence is that the City pro. 50a gram is soundly managed and reliable within the bounds of normal human fallibility. In any event, the TA has never tried to obtain information from even those clinics such as Beth Israel which are unanimously agreed to be reliable. Employers such as Consolidated Edison have found that they can obtain satisfactory information about methadone maintenance patients in order to make intelligent employ- ment judgments. There is no reason to believe that the TA cannot do the same thing.’ With regard to the legal restrictions imposed upon a methadone clinic in the giving out of information about pa- tients, 21 U.S.C. $1175(a) provides that records of the treatment of any patient in a federally regulated drug abuse prevention function shall be confidential and shall be dis- closed only under the circumstances authorized in § 1175(b). Subsections (b)(1) and (g) provide in effect that such rec- ords may be disclosed in accordance with the prior written consent of the patient for such purposes as are allowed in regulations issued by the Director of the Special Action Office for Drug Abuse Prevention. The applicable current regulations were issued June 25, 1975 and became effective on August 1, 1975. 42 C.F.R. §§ 2.1 et seqg., 40 Fed.Reg. 27802. Section 2.38 governs dis- closure of information to employers. It is clear that under these regulations a methadone maintenance patient may * There was some suggestion at the trial that it might be neces- sary or advisable to have a certification board or panel of experts to determine the employability of former addicts. But the weight of the evidence supports the proposition that an employer such as the TA can make this determination by its normal screening pro- cedures. In the case of methadone maintained persons, the em- ployer would naturally seek information from the program. But this is essentially no different from obtaining relevant references for other types of applicants. If the TA has legitimate doubts about the reliability of the information obtained from the pro- gram, it will accord such information little or no weight. -— . 5la authorize release of information to an employer or prospec- tive employer which is relevant to questions relating to employment. Persons Having Terminated Methadone Maintenance The great bulk of the evidence in this case related to the question of the employability of persons engaged in metha- done maintenance programs. There was some evidence, although not a great deal, about the characteristics of per- sons who have successfully completed a methadone main- tenance program and have withdrawn from methadone. There are indications that at times these persons will return to the methadone maintenance programs. At times such persons revert to heroin. However, it is unquestioned that there are many methadone maintenance patients who successfully withdraw from methadone and stay clear of drug abuse thereafter. Plaintiff Beazer is such a person, having ceased using methadone almost two years ago. In any event, it would appear that there would be effec- tive means for objectively determining the qualifications tor employment ot a former methadone maintenance pa- tient. There is no rational reason for maintaining an absolute bar against the employment of these persons re- gardless of their individual merits. Policies of City, State, and Federal Governments The City of New York, the State of New York and the Federal Government have taken various steps to eliminate bars to public employment of methadone maintenance pa- tients and other former addicts. On March 22, 1972 the New York City Department of Personne] issued a policy statement approved by various City officials and by the City Civil Service Commission. d2a The policy statement provided that a history of drug ad- diction shall not in itself constitute a bar to employment in any City position, except that appointments to the “uni- formed services” would continue to be governed by “cur- rent medical and physical standards.” The policy statement provided that where an applicant for City em- ployment has a history of drug addiction, his case will be considered on its individual merits. The policy state- ment specifically provided that methadone maintenance patients should be assisted in obtaining City jobs. This policy has had no effect on the TA, for reasons which will be deseribed hereafter. As to the exception for the “uniformed services,” ap- parently the police, the firemen, and sanitation workers are included in this category. However, the evidence in- dicates that in fact there is no blanket exclusion of metha- done maintenance patients in these departments at least as to all positions. The New York State Civil Service Department and Drug Abuse Control Commission have promulgated certain “Operating Principles,” providing that if an applicant for State employment has a history of drug abuse, the applica- tion should be considered on its merits, although a history of drug abuse may be considered the basis for denial of appointment in “certain sensitive positions” identified by the Civil Service Department. These Operating Principles specifically provide for assistance to methadone mainte- nance patients seeking State employment. In 1972 Congress passed the Drug Abuse Office and Treatment Act, which provides in part that “no person may be denied or deprived of Federal civilian employment or a Federal professional or other license or right solely on the ground of prior drug abuse.” The statute goes on 53a to state that this provision does not apply to employment in the CIA, the FBI, or other similar agencies. 21 U.S.C. §$1180(c). Although the statute does not expressly so state, it would appear that a person successfully participat- ing in a methadone maintenance program would be within the protection of the statute. Mechanics of TA’s Exclusion Policy Positions in the TA consist of so-called “city-wide titles” and also titles which are unique to the TA. The city-wide titles are positions such as secretary, clerk, motor vehicle operator, which involve basically the same work in the TA and in City agencies. The TA has 3,400 employees in city-wide titles. The New York City Civil Service Commis [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0905%3A01. Public record. Not legal advice.