Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn.

No. 87-1555

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE FOR

NATIONAL RAILROAD PASSENGER CORPORATION

AND ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF THE PETITION

Of Counsel ERWIN N. GRISWOLD

HAROLD R. HENDERSON Counsei of Record

Vice President Law SaRAH W. PAYNE

FREDERICK C. OHLY Jones, DAY, REAVIS & POGUE

Associate General Counsel 1450 G Street, N.W.

NATIONAL RAILROAD PASSENGER Washington, D.C. 20005-2088

CORPORATION (202) 879-3898

400 North Capitol Street, N.W. Counsel for the Amici

Washington, D.C. 20001

J. THOMAS TIDD

Vice President and General Counsel

ASSOCIATION OF AMERICAN

RAILROADS

Law Department

50 F Street, N.W.

Washington, D.C. 29001

WILSON - Eres Printine Co., Inc. - 789-0096 . WASHINGTON, D.c. 2000"

QUESTION PRESENTED

Whether an agency charged with maintaining railroad

safety and investigating railroad accidents can, consist-

ently with the Fourth Amendment, establish by regula-

tion a program under which operating railroad employ-

ees are subject to warrantless aicohol and drug tests

following their involvement in significant accidents or

“human factor” rule violations?

/

(i)

TABLE OF CONTENTS

QUESTION PRESENTED .............---------------rre

TABLE OF AUTHORITIES ...........--.----- aliaiiabeaieieganinetince

INTERESTS OF THE AMICI ............------------------

STATEMENT. ........-.-0-0---0-0--+-0-0-0--ceesncoeseneenesesesoseessensneensres

The Proceedings Below .. ...........------------------

REASONS FOR GRANTING THE WRIT. ...........-.----.

I.

_ I.

Ill.

THIS CASE INVOLVES AN IMPORTANT

FEDERAL INITIATIVE IN A TOTALLY

UNSETTLED AREA OF THE LAW.................

A. The Importance of the Case ..................-------

B. The Conflicting Decisions in Lower Courts...

THIS CGURT’S GRANT OF CERTIORARI

IN NATIONAL TREASURY EMPLOYEES

UNION v. VON RAAB, No. 86-1879, WILL

NOT RESOLVE THE ISSUES RAISED BY

THE PETITION ..............----:----c---sseeessseeeeseeeeeesess

THE FRA’S REGULATIONS ESTABLISH

SUFFICIENT CAUSE TO SATISFY THE

FOURTH AMENDMENT’S “REASONABLE-

NESS” REQUIREMENT ..............-.---------------

A. The Regulations Sharply Limit A:» Exer-

cise of Discretion by Railroad Personnel

Who Implement the Testing Program........

B. The Regulations Are Tailored to Avoid Any

Undue Intrusions Upon Privacy ...............- Aw

C. Cause Requirements Incorporated Into the

Regulations Satisfy the Fourth Amendment

in the Circumstances of This Case .......... os

CONCLUSION ............---------

(iii)

Page

10

12

12

iv

TABLE OF AUTHORITIES

CASES: Page

Amalgamated Transit Union v. Sunline Transit

Agency, 663 F. Supp. 1560 (C.D. Cal. 1987)... 9

Amalgamated Transit Union v. Suscy, 538 F.2d

1264 (7th Cir.), cert. denied, 429 U.S. 1029

CTDTG) nnenecnncceaceecesecenen--ne<nsersnsscscenocessnesccsonsenansonensses 10

Brotherhood of Locomotive Engineers v. Burling-

ton Northern Railroad Co., 838 F.2d 1087 (9th

Cir. 1988), petition for cert. filed, No. 87-1631

(April 1, 1988) ..........--------ce----cseeeeeeecesenensesenteneees 4

Capua v. Plainfield, 643 F. Supp. 1597 (D.N.J.

EET escsenzeit tT a aeddanstaantaaeeian 9,12

Colonnade Catering Corp. v. United States, 397

CFB, TE COTO) nneececcccnccincicncscevsnsesccccscescoosecnsscssosccees 15

Delaware v. Prouse, 440 U.S. 648 (1979) .........-- 13

Donovan v. Dewey, 452 U.S. 594 (1981) .......-.---..-- 15

Feliciano v. Cleveland, 661 F. Supp. 578 (N.D.

i WI ince secicicntninaciedoninicnanenenntainntaninpimnininnie 9

Lovvorn v. Chattanooga, 647 F. Supp. 875 (E.D.

et BO in sciccscicnewceneconnsncsccvcncnccttectonncmsnseesosoncscs ]

Michigan v. Clifford, 464 U.S. 287 (1984) ............. 13

Michigan v. Tyler, 426 U.S. 499 (1977) -......-----. 13

National Treasury Employees Union v. Von Raab,

816 F.2d 170 (Sth Cir.), petition for cert. filed,

No. 86-1879 (May 27, 1987) ............. ere ae oe 10, 11, 12

New York v. Burger, 107 S. Ct. 2636 (1987) ....... 15, 16, 18

Shoemaker v. Handel, 795 F.2d 1136 (3d Cir.),

cert. denied, 107 S.Ct. 577 (1986) _...........-.-------. 9,17

United States v. Biswell, 406 U.S. 311 (1972)... 15

United States v. Jacobsen, 466 U.S. 109 (1983)... 15

I'nited States v. Mendenhall, 446 U.S. 544 (1980). 13

United States v. Villamonte-Marquez, 462 U.S.

2 err enn 15

Wyman v. James, 400 U.S. 309 (1971) NEES IE 14

STATUTES:

Railway Labor Act, 45 U.S.C. §§ 151 et seq... 16

Federal Railroad Safety Act, 45 U.S.C. §§ 431 et

cscticchndilecnlientnannns ot ae calaetieasaienas 16

v

TABLE OF AUTHORITIES—Continued

REGULATORY MATERIALS: Page

AQ C.F.R. Part 217 (1987) ......-----------s02-----e-ceeeeeeteeee? 17

49 C.F.R. Part 218 (1987) ...........--. SR na Hake es 17

49 C.F.R. Part 19, Subpart F (1987) .........-.---...--- 17

49 C.F.R. §§ 219.1 et seq. (1987) «....-----------------e passim

49 C.F.R. Part 220 (1987) -....... fe ares Fe bees ae 17

48 Fed. Reg. 30,723 (1983) ........-.--------------eee-eeeeeeeeees 4

49 Fed. Reg. 24,252 (1984) .......--------------0-ee--ceeeceeeeesees 5, 7

50 Fed. Reg. $1,508 (1985) ......--.---------seeessseeeseseceseeees passim

MISCELLANEOUS:

Developments in Drug and Alcohol Testing, 1988:

Stenographic Transcript of Hearings on S. 1041

Before the Commitiee on Commerce, Science

and Transportation, 100th Cong., 2d Sess. 50-51

(1988) (Statement of John H. Riley, FRA Ad-

GemIAETEBOE) ....<0-....ccsneecererevcensne-sesvesseesrorsensenccosonses 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-1555

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

V.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICI CURIAE FOR

NATIONAL RAILROAD PASSENGER CORPORATION

AND ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF THE PETITION

This brief is filed on behalf of the National Railroad

Passenger Corporation and the Association of American

Railroads, as amici curiae, in support of the petition for

certiorari.’

INTERESTS OF THE AMICI

The National Railroad Passenger Corporation (“Am-

trak’’) manages the country’s intercity rail passenger sys-

tem. Amtrak operates trains in 43 states over a 24,000

1 Consents from counsel for the parties have been filed with the

Clerk of this Court.

- tt : a

2

mile network of track (most of which is owned and also

used by freight railroads) with a workforce of some 22,000

employees. The Association of American Railroads

(“AAR”) is a trade association representing the nation’s

freight railroads, and has long studied and represented

the industry on such matters as railroad operations,

maintenance, and safety.

The Ninth Circuit’s decision below—invalidating Fed-

eral Railroad Administration regulations which estab-

\ lished a carefully focused program of alcohol and drug

testing of railroad employees involved in certain serious

accidents and human factor rule violations—is of grave

concern to Amtrak and AAR. For more than two years,

the present litigation has chilled implementation of the

regulations, and by extension, slowed efforts by some

railroads to promote additional measures to further cur-

tail alcoho! and drug use within the industry. Yet alcohol

and drug-related accidents continue to oceur, some in-

volving passenger fatalities, many involving employee fa-

talities, and some imperiling entire communities by re-

lease of hazardous cargos.

The most tragic accident in recent memory, which re-

sulted in 16 deaths and scores of injuries, occurred near

Chase, Maryland on January 4, 1987. The two crewmen

responsible for that accident tested positive for mari-

juana and one had traces of the hallucinogenic drug PCP

in his urine. Significantly, the involvement of drugs in

that accident would have gone undetected were it not for

the post-accident testing performed pursuant to the FRA

regulations. Since January 1987 alone, there have been

41 railroad accidents, involving 29 deaths, 341 injuries,

and $28 million in property damages, in which one or

more of the train operators were impaired by alcohol or

drugs. Over five percent of employees undergoing post-

accident testing tested positive. Derailments of trains

* Developments in Drug and Alcohol Testing, 1988: Stenographic

Transcript of Hearings on S. 1041 Before the Committee on Com-

’

3

in at least five states during 1987 caused evacuation of

over 22,200 persons from their homes.®*

As responsible employers, passenger carriers, and in-

dustry spokesmen, amici believe that all reasonable steps

must be taken to prevent these tragedies. The amici rec-

ognize that—despite useful innovations such as employee

assistance programs (which amici wholeheartedly sup-

port)—there are practical limits to what railroad man-

agement can do, without toxicological testing, to address

the substance abuse problem. By necessity, railroad em-

ployees operate in far-flung locations and around the

clock. Visual monitoring of employee performance is not

always possible, at least for major railroads; and impair-

ment, especially when drug use is involved, is often dif-

ficult to identify except in the most egregious cases.

Each railroad has for many years had rules prohibiting

employees’ use of or impairment by alcohol in connection

with performance of their jobs. In recent years, those

rules have generally been modified to include specifically

a similar prohibition with respect to drugs. Railroads

have used a variety of methods for monitoring employee

conduct and enforcing the rules, with increasing empha-

sis on certain forms of toxicological testing. In adopting

its regulations after a rulemaking proceeding of more

than two years’ duration, which was itself preceded by

several years of analysis and discussion, the FRA deter-

mined that industry-wide toxicological testing is essen-

tial to deal with the current substance abuse problem.

The FRA regulations provide a significant tool for

identifying those employees who use alcohol or drugs

while performing functions associated with train opera-

merce, Science and Transportation, 100th Cong., 2d Sess. at 50-51

(1988) (Statement of John H. Riley, FRA Administrator).

3 See Associated Press, December 13, 1987, July 22. 1987, May 6,

1987: United Press International, February 2, 1987, January 6,

1987.

4

tions. By holding these regulations invalid in this case,

the Ninth Circuit has seriously impaired efforts to pre-

vent senseless fatalities, injuries, and property damage

in the railroad industry.‘ Amici thus have a direct and

immediate interest in urging the Court to hear this case.

STATEMENT

Acting pursuant to its statutory role of overseeing

railroad safety, the Federal Railroad Administration

(“FRA”), after thorough investigation,’ determined that

aleohol and drug use by railroad personnel is a proven

cause of a significant number of recent, avoidable rail-

road accidents and fatalities.° The agency also reasonably

* Railroad companies operating in the Ninth Circuit find them-

selves particularly disabled from addressing substance abuse by

employees. Not only has the Court of Appeals there invalidated the

FRA’s regulations in the opinion presently at issue, it has also, in

an opinion totally at odds with a prior Eighth Circuit decision, held

that its Fourth Amendment analysis is determinative of the con-

tractual erpectations of parties to pre-existing collective bargaining

agveements, effectively prohibiting railroads from instituting sub-

stance abuse programs independently. Brotherhood of Locomotive

Engineers v. Burlington Northern Railroad, 828 F.2d 1087 (9th

Cir. 1988), petition for cert. filed, No. 87-1631 (April 1, 1988). That

case involves the same critical public safety concerns raised here,

but presents distinct legal issues regarding implementation of drug

use testing by a private employer in the context of a collective

bargaining relationship.

5 The FRA began its study of alcohol use by railroad employees

in 1975. See 48 Fed. Reg. 30,723, 30,724 (July 5, 1983). After

developing recommendations for action by the railroads, the FRA

determined that such steps, while useful, could not solve the prob-

lem alone. /d., at 30,725, 30,731. The notice and comment proceeding

which culminated in promulgation of the regulations at issue lasted

over two years, and involved extensive hearings and industry-wide

participation. The FRA considered a!! comments and, in response,

made numerous significant revisions in the regulations it had ini-

tially proposed.

®* FRA concluded from its investigation that:

the documented problem is serious enough to mandate action.

Based on an intensive review of FRA and NTSB [National

5

believed that available statistics substantially understated

the extent of the problem; autopsies, although performed

only intermittently, showed a far greater incidence of

aleohol and drug ingestion by railroad personnel killed in

workplace accidents than would otherwise have been sus-

pected, and FRA and NTSB investigate only a small

percentage of all train accidents. 49 Fed. Reg. 24,252,

24,265 (June 12, 1984).

Although the problem obviously required FRA atten-

tion, no easy solution presented itself. The FRA’s re-

search revealed that employees who imbibe low * to mod-

erate amounts of alcohol most frequently do not exhibit

any easily detectable signs of impaired performance. In

addition, “aleoholics and other habituated drinkers may

be able to achieve elevated [blood alcohol content levels}

(even in excess of .30 percer*! without showing outward

signs that would be evident to a person with limited

training.” 50 Fed. Reg. at 31,526 (August 2, 1985).*

Transportation Safety Board] accident reports and reports filed

by the railroads with FRA, FRA has identified 34 fatalities,

66 injuries and over $28 million in property damages (in 1983

dollars) that resulted from the errors of alcohol and drug-

impaired employees in 45 train accidents and train incidents

during the period 1975 through 1983.

49 Fed. Reg. 24,252, 24,254.

7 Alcohol, even in lesser amounts, is known to affect “choice

reaction time” (i.e., human response time in “divided attention

situations of the kind experienced by operators of transportation

vehicles”). 50 Fed. Reg. 31,508, 21,536. Small quantities of alcohol

are also thought to increase by more than five times the likelihood

that train operators will be lulled to sleep by the rhythmic rocking

of the cars during long, routine night trips. Jd.

8’ The FRA noted research indicating that social drinkers, bar-

tenders, and even some police officers cannot accurately judge levels

of alcohol intoxication. 50 Fed. Reg. at 31,526 (citing Langenbucher,

J.S. and Nathan, P.E., Psychology, Pubiic Policy and Evidence for

Alcohol Intoxication, American Psychologist, 38[10]: 1070-1077,

1983). The FRA further noted that “many emergency rooms rou-

a ee OO

6

Detection of drug-related impairment is even more dif-

ficult: “|mjany drugs of abuse produce effects much

more subtle or complex (and sometimes more pernicious)

than alcohol.” 50 Fed. Reg. at 31,527.

Because it would achieve the agency’s desired objec-

tives of insuring public safety by (1) increasing indus-

try awareness of the correlation between accidents and

aleohol or drug use, (2) deterring on-the-job substance

abuse, and (3) obtaining needed information on which to

base further regulatory efforts, see, ¢.g., 50 Fed. Reg. at

31,540, the FRA ultimately concluded that an alcohol and

drug testing program covering a limited number of rail-

road employees actually responsible for the movement of

rail traffic would be the most effective first step. The

regulations, applying almost exclusively to those railroad

employees whom Congress determined in the Hours of

Service Act to be performing service connected with the

movement of trains, see 49 C.F.R. § 219.3(d), (e), were

promulgated on August 2, 1985.

Part C of the regulations mandates prompt testing (by

medical analysis of blood and urine samples) of railroad

employees involved in any of the following: (i) any

train accident resulting in a fatality, a release of a haz-

ardous material accompanied by an evacuation or a re-

portable injury, or damage to railroad property of

$500,000 or more; (ii) a collision resulting in a report-

uble injury or damage to railroad property of $50,000

or more: or (iii) a “train incident that involves a fa-

tality to any on-duty railroad employee.” 49 C.F.R.

¢ 219.201 (a).

Part D of the regulations permits, but does not re-

quire, prompt testing (by analysis of urine and breath

samples) of (i) all employees involved in reportable ac-

cidents or incidents who are reasonably suspected by

tinely test blood samples for ethanol precisely because they can

miss even high blood alcohol levels during triage.” 50 Fed. Reg.

at 31,526.

7

supervisors to have contributed to the cause or severity

of those accidents or incidents; and (ii) all employees

directly involved in specific human error operating rule

violations. 49 C.F.R. § 219.301."

Noting that it had “no jurisdiction to terminate em-

ployment relationships,” 50 Fed. Reg. at 31,546, the FRA

generally left the disciplinary consequences of positive

test results to be settled by the employing railroat. It

imposed as the only federal sanction a requirement that

employees refusing to provide blood and urine samples

under the mandatory (Part C) testing program be dis-

qualified for nine months from Hours of Service work.

49 C.F.R. § 219.213. The agency expressly forbade phys-

ical coercion or “any other deprivation of liberty.” 49

C.F.R. § 219.11(e). Railroad employees employed on and

after February 10, 1986 were “deemed to have consented

to” the testing program. 49 C.F.R. § 219.11 (a).

The Railway Labor Executives’ Association and cer-

tain labor organizations brought this action to enjoin the

FRA’s drug testing program, relying on, in relevant

part, the Fourth Amendment.

The Proceedings Below

The District Court for the Northern District of Cali-

fornia upheld the constitutionality of the challenged reg-

ulations, stating that “there are no factual issues.” The

9The FRA notice announcing promulgation of the regulations

describes in layman’s terms the operating violations that are cov-

ered, and explains that each of these particular violations is “an

objective event and a clear indication of a material deviation from

safe practice suggesting the real possibility that the employee is

not fit.” 50 Fed. Reg. at 31,553.

10 Part D also permits testing of employees whom supervisors

reasonably believe, on the basis of personal observation, to be under

the influence of alcohol or drugs. 49 C.F.R. § 219.301(b) (1), (¢) 2).

The court below upheld these provisions, and they are not further

discussed here.

TT

8

court noted that the regulations serve compelling gov-

ernmental purposes:

The government certainly has a valid public and gov-

ernmental interest in the promotion of safety and

railway safety, safety for employees, and safety for

the general public that is involved with the trans-

portation. It’s also obvious from the length of time

and the detail in which the regulations have gone

that the government has made a sincere attempt to

gath{er] together information and do some balancing

of interests on its own.

Appendix B to Petition, at 52a.

A divided panel of the Court of Appeals for the Ninth

Cireuit reversed, and the Secretary of Transportation

seeks review here.

REASONS FOR GRANTING THE WRIT

I. THIS CASE INVOLVES AN IMPORTANT FED-

ERAL INITIATIVE IN A TOTALLY UNSETTLED

AREA OF THE LAW.

A. The Importance of the Case.

Few would contend that the risk to public safety posed

by railroad employees who consume aleohol or drugs

while operating trains is one society should tolerate. Ev-

ery train is an instrumentality of potentially massive

destructive power, not only from collisions, but by reason

of the nature of the cargo carried, such as toxic chemicals

or other hazardous materials. Recent history has shown

that some railroad employees undertake operational re-

sponsibilities with judgment or senses clouded by alcohol

or drugs, thus endangering not only themselves, but the

lives and property »f fellow employees, rail passengers,

motorists, railroad companies, and abutting communities.

in the interests of public safety, such employees should

be identified and their problems confronted.

9

Because of the compelling public interest in imple-

menting the FRA’s carefully-conceived program to ad-

dress this need, a grant of the petition is badly needed

so that the constitutional problems involved can be fully

considered and resolved on a national basis. A refusal

by the Court to hear this case will permit the decision

below to stand as a bar to irstitution of governmental

aleohol and drug testing progrims in other industries—

e.g., aviation, trucking, nuclear power, air traffic con-

trol—in which substance abuse by employees might well

have equally lethal consequences.

B. The Conflicting Decisions in Lower Courts.

The decision below likewise merits review here because

of the conflict-ridden state of the decisions in lower courts

concerning the constitutionality of alcohol and drug test-

ing. The decision below and others hold “individualized

suspicion” to be an absolute prerequisite to such testing,

see, e.g., Capua v. Plainfield, 643 F. Supp. 1507 (D.N.J.

1986); but other courts have upheld random or mass

testing of employees. See Shoemaker v. Handel, 795 F.2d

1136 (3d Cir.), cert. denied, 107 S. Ct. 577 (1986)."

Still other decisions mandate individualized suspicion on

their facts, while suggesting the possibility that gov-

ernmental formulation of a generalized policy regarding

candidates for tests might be sufficient to satisfy the

Fourth Amendment. Amalgamated Transit Union v. Sun-

line Transit Agency, 663 F. Supp. 1560, 1568 n.4 (C.D.

Cal. 1987) ; Feliciano v. Cleveland, 661 F. Supp. 578 (N.D.

Ohio 1987) ; Lovvorn v. Chattanooga, 647 F. Supp. 875,

883 (E.D. Tenn. 1986). Also notable is a case with facts

almost identical to the present case, where post-accident

11 Indeed, the Shoemaker court, in a decision directly inconsistent

with the opinion later rendered in this case by the Court below,

held that the “administrative search” doctrine applies in highly

regulated industries to permit drug testing of employees (and not

just searches of business premises) without requiring either indi-

vidualized suspicion or procurement of warrants.

10

testing was held valid. Amalgamated Transit Union v.

Suscy, 5388 F.2d 1264, 1267 (7th Cir. 1976) (because of

a transit authority’s “paramount interest in protecting

the public by insuring that bus and train operators are

fit to perform their jobs,” transit workers “can have no

reasonable expectation of privacy with regard to sub-

mitting to blood and urine tests’), cert. denied, 429 U.S.

1029 (1976). These conflicts demonstrate that the dis-

trict and appellate courts badly need guidance from this

Court in working out the constitutional implications of

alcohol and drug testing.

Il. THIS COURT’S GRANT OF CERTIORARI IN NA-

TIONAL TREASURY EMPLOYEES v. VON RAAB,

No. 86-1879, WILL NOT RESOLVE THE ISSUES

RAISED BY THE PETITION.

Although the Von Raab case now awaiting hearing by

this Court involves the constitutionality of employee drug

testing, that case does not raise the important issues

which are at the heart of the present petition. This case

‘aeylves three critical factors not present in Von Raab:

a compelling government interest in public safety; a

cause requirement embedded in objective regulatory

standards; and testing of employees, rather than job

applicants only.

Von Raab upheld Customs Service regulations that re-

quire urine testing of applicants for employment in posi-

tions involving either interdiction of illicit drugs, carry-

ing of firearms, or access to classified information. The

purpose of the regulations—safeguarding the integrity

of, and public confidence in, an agency having daily con-

tact with criminals and illicit drugs—is primarily im-

portant to the law enforcement community. The FRA’s

regulations, in contrast, serve to protect the public from

the imminent threat to safety known to be posed by train

operators who are under the influence of alcohol or drugs.

These compelling interests of public safety are shared by

every common carrier, and by public utilities, certain

11

allied industries, and other governmental departments as

well. The present case, if heard by the Court, will pro-

vide concrete guidance regarding the reasonableness un-

der the Fourth Amendment of public-safety based alcohol

and drug testing programs. Von Raab does not involve

public safety, and it will provide no such guidance. A

decision in the Von Raab case, followed by a summary

reversal and remand of this case, would be of little help

in applying the Fourth Amendment balancing test here.

The question would still have to be decided here even-

tually, and, in the public interest, and in the interest of

judicial economy, it should be decided presently and in

this case.

In Von Raab, the Customs Service expressly denied

that any drug abuse existed among its employees, his-

torically or currently. Von Raab thus involves adminis-

tration of tests without any reason to suspect that the

resuics may be positive. Whatever the merits of such a

program, the FRA regulations are quite different. The

FRA regulations contain an implied “cause” require-

ment: employees are only tested following involvement

in serious accidents or rule violations which, based on

experience, the FRA has determined to be either dif-

ficult to investigate, or historically attributable to op-

erator error. See, e.g., 50 Fed. Reg. at 31,542. In the

context of the FRA’s findings that an alcohol and drug

problem exists in the railroad industry, and that this

problem has caused a significant number of serious ac-

cidents, the FRA’s standards express sufficient grounds

for a constitutionally adequate suspicion that the em-

ployees tested will be found to have been under the in-

fluence of alcohol or drugs. This implicit cause determi-

nation—not present in the Von Raab case—satisfies the

Fourth Amendment’s “reasonableness” requirement. Von

Raab vill not advise lower courts regarding the suffici-

ency of cause requirements imposed through objective ad-

ministrative standards; nor will it illuminate the rele-

vance of this Court’s precedents to such a concept.

12

Finally, Von Raab involves testing of job applicants,

while this case involves testing of current employees.

Lower courts—indeed the Von Raab court itself—con-

sider this distinction to be significant for Fourth Amend-

ment purposes. See, ¢.9., National Treasury Employees

Union v. Von Raab, 816 F.2d 170, 178 (5th Cir. 1987) ;

Capua v. Plainfield, 643 F. Supp. at 1519. To the ex-

tent that courts would still be left without guidance in

determining whether the privacy expectations of appli-

cants for employment are different from those of em-

ployees, Von Raab will not resolve this case.

Though this case is in the same area as Von Raab, the

issues involved are quite different. The questions in-

volved here are of great importance, and merit a deci-

sion by this Court which is specifically applicable to this

case.

Ill. THE FRA’S REGULATIONS ESTABLISH SUFFI-

CIENT CAUSE TO SATISFY THE FOURTH

AMENDMENT’S “REASONABLENESS” REQUIRE-

MENT.

A. The Regulations Sharply Limit Any Exercise of

Discretion by Railroad Personnel Who Implement

the Testing Program.

The FRA’s regulations are carefully drawn to protect

Fourth Amendment interests. Searches are only per-

mitted where events occur which justify « reasonable

supposition of human error that mey have been caused

by alcohol or drug impairment *—thus bringing into

12 Note that the FRA expressly excluded from its description of

such events rail/highway grade crossing collisions. 49 C.F.R.

§ 219.201(b). Tre agency observed that in most cases, such colli-

sions are not caused by errors on the part of railroad personnel.

See 50 Fed. Reg. at 31,543.

ae

13

play the regulatory findings that a significant number of

railroad accidents are alcohol or drug-related.”

The FRA has carefully defined these events in almost

totally objective terms: practically the only discretion

railroads have in designating employees for testing under

the standards is determining whether property damage

is extensive enough to meet the criteria. Even as to the

latter point, the regulations explicitly require that a

“eood faith” estimate be made, 49 C.F.R. § 219.203(c),

and-——recognizing that railroad personne! are the only

persons available at the scene to implement the testing

program—specify that such estimates pertain only to

damage to railroad property. See 49 C.F.R. § 219.201

(a) (1) (iii), (a) (2) (ii). Railroads failing to comply

with any part of the regulations are subject to civil

penalties. 49 C.F.R. § 219.9.

13 Compare Delaware v. Prouse, 440 U.S. 648, 659 ( 1979) :

The foremost method of enforcing traffic and vehicle safety

regulations, it must be recalled, is acting upon observed viola-

tions. Vehicle stops for traffic violations occur countless times

each day; and on these occasions, licenses and registration

papers are subject to inspection and drivers without them will

be ascertained.

Compare also United States v. Mendenhall, 446 U.S. 544, 565 (1980)

(Powell, J., concurring) (drug courier profile, applied by experi-

enced officer, was a “well-pianned, and effective, Federal law enforce-

ment program” satisfying “reasonable and articulable suspicion of

criminal activity” standard).

Moreover, since the regulations require testing of employees based

on involvement in serious accidents which the FRA has determined

to be of great public interest and difficult to investigate, the need to

preserve evidence for the sa‘ety investigation is an “exigent circum-

stance” justifying the testing under the Fourth Amendment’s “rea-

sonableness” requirement. Michigan v. Clifford, 464 U.S. 287

(1984); Michigan v. Tyler, 436 U.S. 499 (1977).

14

B. The Regulations Are Tailored to Avoid Any Undue

Intrusions Upon Privacy.

The regulations require that all blood and urine sam-

ples be collected at independent medical facilities by med-

ical personnel or technicians. 49 C.F.R. $$ 219.203 (c),

219.305(a). They do not authorize that samples be tested

for any characteristic other than aleohol and drug use,

nor do they authorize release to railroads of medical in-

formation (other than the presence in body fluids of al-

cohol or drugs or their metabolites) derived from the

tests. Except for an implied requirement that the tests

be administered in such a way as to provide reliable re-

sults, the regulations do not sanction intrusions upon

employee privacy during collection of urine samples.

They expressly prohibit forced administration of tests.

The regulations require that employees refusing to un-

dergo Part C testing be disqualified for nine months from

Hours of Service functions, but otherwise leave disci-

plinary decisions to the railroads. The latter decisions

will be made in the context of the procedures and re-

quirements which Congress and the courts have deemed

appropriate to protect the employment interests of rail-

road labor.

In these circumstances, the privacy interests of tested

employees are not impaired in a constitutional sense.

Case law considering whether “consent” to a search con-

ducted by law enforcement personnel is voluntary and

non-coerced has no application to the only governmental

intrusion here—the requirement that employees, who

are under no physical compulsion, decide whether they

will provide blood, urine, or breath samples, or whether

they would rather be disqualified from service for nine

months and undergo such further disciplinary proceed-

ings as their employers may deem necessary and not

inconsistent with legal obligations. Compare Wyman v.

James, 400 U.S. 309, 317 (1971) (where visitation by

15

social worker “in itself is not forced or compelled, [and]

the beneficiary’s denial of permission is not a criminal

act,” no Fourth Amendment search occurs, despite the

fact that the visit may have “both rehabilitative and

investigative” purposes, and that benefits cease upon re-

fusal to permit the visit). Nor do the regulations im-

plicate privacy interests in the “personal information

contained in body fluids,” since the only “personal infor-

mation” divulged is aleohol and drug use—information

in which, for purposes of safety investigations, employees

have no reasonable expectation of privacy. United States

v. Jacobsen, 466 U.S. 109, 122-24 (1983). See also United

States v. Villamonte-Marquez, 462 U.S. 579, 591-92

(1983) ."

C. Cause Requirements Incorporated Into the Regula-

tions Satisfy the Fourth Amendment in the Circum-

stances of This Case.

The FRA’s objectively-expressed cause requirement is

fully consistent with the spirit and the letter of the

Fourth Amendment. The regulations fit easily within

the guidance of this Court’s “administrative search”

cases. Such cases hold that warrantless searches, unsup-

ported by traditional probable cause determinations, of

premises of heavily regulated businesses are reasonable

when performed without force and pursuant to appro-

priate standards. See New York v. Burger, 107 S. Ct.

2636 (1987); Donovan v. Dewey, 452 U.S. 594 (1981);

United States v. Biswell, 406 U.S. 311 (1972); Colon-

nade Catering Corp. v. United States, 397 U.S. 72 (1970).

These cases, which emphasize the need for warrantless

searches in order to meet the reasonable needs of public

concern, turn on the fact that proprietors in such indus-

14 Note that most. if not all, railroads have for years enforced

“Rule G,” an industry safety rule which prohibits railroad employ-

ees from using alcohol or narcotics while on duty, from possessing

these substances while on company property, and from reporting

for duty while under the influence of alcohol or drugs.

16

tries are aware of the extensive regulation to which they

are subject and accordingly have no reasonable expecta-

tion of privacy.

Under these cases, the doctrine applies, despite the

absence of individualized suspicion, where (1) “there lis]

a substantial government interest that informs the regu-

latory scheme pursuant to which the inspection is made”;

(2) warrantless inspections are necessary to the regula-

tory scheme; and (3) the inspection program “in terms

of the certainty and regularity of its application, [pro-

vides] a constitutionally adequate substitute for a war-

rant” (ie. the regulations must advise that the search

is being made pursuant to the law and in accordance

with a properly defined scope, and must limit the discre-

tion of the inspecting officers). New York v. Burger,

107 S.Ct. at 2644."

Railroads, and their predecessors, were among the first

modes of transportation to be extensively regulated. Al-

though in recent years railroads have experienced some

rate deregulation, governmental scrutiny remains close,

particularly with respect to two areas that are vital in

the present context: labor (see, e.g., the Railway Labor

Act, codified as amended at 45 U.S.C. § 151 et seqg.), and

safety (see, e.g., the Federal Railroad Safety Act, codi-

fied as amended at 45 U.S.C. § 431 et seq.). Thus, rail-

roads are “heavily regulated businesses” and well within

the scope of the cases cited above.’ The railroad em-

18 The Burger opinion notes that “an expectation of privacy in

commercial premises, however, is different from, and indeed less

than, a similar expectation in an individual’s home.” 107 S. Ct. at

2674. The testing authorized here is administered to individuals in

their status as “employees,” not in their status as private citizens.

16 The Court of Appeals held that while railroads are heavily

regulated, railroad employees are not, noting that employees are

not licensed. This distinction has no sound foundation. The penal-

ties and burdens of the administrative schemes in the heavily

regulated business cases ultimately fall on individuais, not com-

17

ployees subject to the FRA’s regulations here know the

nature and importance of their jobs, and are well aware

of the provisions of the regulations.‘’ Union representa-

tives participated extensively in the notice and comment

proceeding, meetings have been held to explain the regu-

lations to affected employees, Part C testing has been

heavily featured in news stories since then in connection

with rail disasters, and employers administering Part D

testing are required to give employees detailed notice of

the provisions of that Part. See 49 C.F.R. § 219.309(b).

As noted above, the regulations severely limit the discre-

tion of the persons who must implement the testing pro-

gram. Finally, testing must be done promptly after the

accident, if it is to serve its best purpose,'* and given the

panies. The fact that the FRA did not create a licensing procedure

for employees is irrelevant; it would be incongruous if the FRA

could constitutionally adopt a program for determining eligibility

for employment, but could not validly require the lesser intrusions

occasioned here.

Moreover, as noted below, railroad employees are well aware of

the regulatory scheme to which they are subject. Even more im-

portant, railroad employees are heavily regulated. See, e.g., 49 C.F.R.

Parts 217 (requiring instruction of employees on operating rules

and periodic testing of rule compliance) ; 218 (prescribing minimum

safety requirements for railroad operating rules and practices—-

rules and practices which for the most part must be actually imple-

mented entirely by employees); 219, Subpart F (requiring pre-

employment drug testing of applicants for positions involving oper-

ation of trains); and 220 (establishing minimum requirements gov-

erning employees’ use of radio communications in connection with

railroad operations).

17 The regulations as promulgated gave employees several months’

notice that the testing program would be implemented, and that

their consent to testing would be a condition of employment. The

Third Circuit in Shoemaker found an analogous prior notice and

consent provision to be a significant factor favoring application of

the “administrative search” doctrine to drug testing of jockeys.

18 The FRA noted during the rulemaking proceeding the “diffi-

culty associated with estimating previous alcohol and drug levels

from specimens obtained some time later.” 50 Fed. Reg. at 31,554.

Part C tests are to be administered “as soon as possible after the

18

time constraints, confusion following the accident, and

lack of familiarity of railroad personnel with the court

systems in the many locations where accidents may occur,

a warrant requirement is neither realistic nor feasible,

nor really useful in protecting Fourth Amendment values.

The administrative search cases justify the FRA’s regu-

lations.’”

CONCLUSION

For the reasons set forth above and for the additional

reasons advanced ir the Petition, the writ of certiorari

should be granted, and the case set down for separate

argument. Respectfully submitted,

OF Counsel ERWIN N. GRISWOLD

HAROLD R. HENDERSON Counsel of Record

Vice President—Law SARAH W. PAYNE

FREDERICK C. OHLY JONES, DAY, REAVIS & PoGuE

Associate General Counsel 1450 G Street, N.W.

NATIONAL RAILROAD PASSENGER Washington, D.C. 20005-2088

CORPORATION (202) 879-3898

400 North Capitol Street, N.W. Counsel for the Amici

Washington, D.C. 20001

|. THOMAS TIDD

Vice President and General Counsel

ASSOCIATION OF AMERICAN

R LROADS

) .w Department

50 F Street, N.W.

Washington, D.C. 20001

April, 1988

accident or incident.” 49 C.F.R. § 219.203(b)(1). Part D tests must

be administered within 8 hours. 49 C.F.R. § 219.301(f).

“It is irrelevant for present purposes that a drug test could

reveal illegal activity on the part of employzes. The purpose of

these regulations is civil, not criminal, as the FRA’s comments dur-

ing the rulemaking reveal. FRA does not require that results be

shared with law enforcement authorities; indeed, FRA states that

“it is the policy of FRA to request the Attorney General to oppose

production of the sample to a party in litigation” except under a

subpoena or order. 49 C.F.R. § 219.301. Compare New York v.

Burger, 107 S. Ct. at 2649-2652.