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

Supreme Court, U.S,

FILED

APR 15 1988

No. 87-1555 JOSEPH F. SPANFOR, JR,

CLERK

In The

Supreme Court of the United States

October Term, 1987

———- -— -0

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, ef al.,

Petitioners,

RAILWAY LABOR EXECUTIVES’

ASSOCIATION, et al.

-O

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

—

VW

BRIEF OF THE CALIFORNIA EMPLOYMENT

LAW COUNCIL AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

0

Victor SCHACHTER

Counsel of Reeord

LawreNcE Hecrmovicu

Scuacuter, Kristorr, Ross

Spracue & CuRiALe

101 California, Suite 2900

San Francisco, CA 94111

(415) 391-3338

Attorneys for Amicus Curiae

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or Cail collect (402) 342-2831

TABLE OF CONTENTS

Page

pe RB By

|

INTEREST OF AMICUS CELC ... 2

REASONS FOR GRANTING THE WRIT 20 4

I FACTS AND SUMMARY OF . SITION 5

"SIRE a ra ao 9)

B. Summary of Position WWW... 7

IT.

Til.

IV.

REVIEW IS NECESSARY 10 RESOLVE A

DIRECT CONFLICT AMONG THE CIRCUIT

A. The Ninth Cireuit’s Rejection Of The Gov-

ernment’s Public Safety Justification Con-

flicts With The Opinions Of Other Cireuits ..

B. The Ninth Cireuit’s “Particeularized Suspi-

cion” Standard Is Improper And Contradicts

The Holdings Of Other Cireuit Courts —..

1. The Ninth Cirenit standard is inappro-

priate in light of prior Supreme Court

2. Other cireuits have consistently upheld

testing in the absence of particularized

suspicion

REVIEW SHOULD BE GRANTED TO AD-

DRESS IMPORTANT QUESTIONS OF CON-

STITUTIONAL LAW WHICH HAVE NOT

BEEN, BUT SHOULD BE, SETTLED BY

wae OUear ..._._._...

THE COURT SHOULD GRANT REVIEW TO

PROVIDE GUIDANCE REGARDING IMPOR-

TANT ISSUES NOT RAISED BY VON RAAB

CONCLUSION

11

13

16

19

il

TABLE OF AUTHORITIES

Page

CASES:

Allen v. City of Marietta, 601 F.Supp. 482 (N.D.

Ga. 1060) ......icseeee 17

Bell v. Wolfish, 441 U.S. 520 (1979) eee 8

Blum v. Yaretsky, 457 U.S. 991 (1982) ee «= CB

Brotherhood of Locomotive Engineers v. Burling-

ton Northern Railroad Company, 838 F.2d 1087

(Sth Cir. 1988) 3, 17,18

Burka v. New York City Transit A auae No.

85 Civ. 5751 (S.D.N.Y., Feb. 1, 1988) 000d

Delaware v. Prouse, 440 U.S. 648 (1979) 00 Od

Division 241 Amalgamated Transit Union v. Suscy,

538 F.2d 1264 (7th Cir.), cert. denied, 429 US.

162) (1006) 4,9, 11, 13, 16,17

Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987) _ 4,9,

11, 13, 16, 17

Lovvorn v. City of Chattanooga, 647 F.Supp. 879

(E.D.Tenn. 1986) 17

McDonell v. Hunter, 809 F.2d 1302 = Cir.

1987) . aa 4, 10, 11, 13, 16, 17

National Federation of Federal pc v.

Carlucci, No. 86-0681 (D.D.C. Mar. 1, 1988). «(17

National Treasury Union v. von Raab, 816 F.2d

170 (5th Cir. 1987), cert. —-! No. 86-1879

(Feb. DD, 195) eee 4, 7, 14, 19, 20

New Jersey v. T.L.0., 469 U.S. 325 (1985) pe. 12

O'Connor v. Ortega, 127 S.Ct. 1492 (1987) Cd

Railway Labor Executives’ Association v. Burn-

ley, 889 F.2d 575 (9th Cir. 1988) 00 passim

iil

TABLE OF AUTHORITIES—Continued

Page

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

cert. denied, 107 S.Ct. 577 (1986) 0. 4, 14, 15, 19

Terre @. Onto, 32 US. 1 (1968) __$____ 9

Turner v. Fraternal Order of Police, 500 A.2d 1005

Cee a catestnreeretseenmcencoecenereneneesse 17

United States v. Jacobsen, 466 U.S. 109 (1984) Diladsisane 3

STaTUTES AND REGULATIONS

49 C.F.R. 219.1:

Subpt. A, Section 219.1(a) : ; , 3

Subpt. C, Sections 219.201 to 219.213 eee 5

Section 219.201 5

Nee ceecivneemnssstntrecemce 5

No. 87-1555

fay

Vv

In The

Supreme Court of the United States

October Term, 1987

ray

Vv

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, e@ al.,

Petitioners,

RAILWAY LABOR EXECUTIVES’

ASSOCIATION, ef al.

—

a

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ff)

a

BRIEF OF THE CALIFORNIA EMPLOYMENT

LAW COUNCIL AS AMICUS CURIAE

IN SUPPORT OF THE PETITION

The California Employment Law Council (‘*‘CELC”’

or “amicus”) submits this brief as amicus curiae to urge

the Court to review the holding below that regulations of

the Federal Railroad Administration mandating blood and

urine testing of railroad employees involved in specified

train accidents and fatal incidents, and authorizing breath

and urine tests after specifie accidents, incidents and rule

1

»)

infractions, violate the Fourth Amendment since they do

not require ‘‘individualized’’ suspicion of drug or aleohol

impairment prior to testing.'

INTEREST OF AMICUS CELC

CELC is a voluntary nonprofit organization composed

of more than 60 companies employing over 400,000 persons.

Its members represent a broad segment of the employer

community in California. Amicus was formed to promote

the common interests of employers and the publie in sound

procedures and laws pertaining to employment practices.

CELC members do business throughout the Ninth Cireuit,

and thus must adhere to its rulings.

While governmental entities such as petitioner are

not members of CELC, amicus represents many private

companies within industries subject to extensive govern-

mental regulation designed to promote safety of employees

and the public. In addition, virtually all of CELC’s mem-

bers, in the operation of their businesses, rely upon heavily

regulated industries, and particularly transportation, to

provide safe and reliable services. Many of these com-

panies handle and require the transport of commercial

products which could endanger the public in the event of

a serious accident. Moreover, numerous CHLC members

have embarked upon comprehensive safety programs to

ensure the well-being of their employees and the public,

and these programs entail the prevention of substance

abuse in the workplace.

' Petitioners and Respondents have consented to the filing

of this brief.

3

In promulgating the regulations in this case, the Fed-

eral Railroad Administration (‘‘FRA’’) sought to achieve

safety objectives which are of great concern to CELC and

its members, to wit, ‘‘to prevent aecidents and casualties

... that result from impairment of employees by alcohol or

drugs” [49 CFR 219.1(a)]. Further, many CELC mem-

bers, in order to assure a safe working environment, have

developed substance abuse policies which, like the regula-

tions in issue, require urine testing of employees after cer-

tain accidents, incidents, and rule violations, without a

showing of ‘‘individualized’’ suspicion. Notwithstanding

that CELC members are in the private sector, and there-

fore not subject to Fourth Amendment prohibitions,’ the

clarification of drug testing issues in this case will un-

doubtedly impact all employers. Indeed, the Ninth Cir-

cuit has already applied Burnley to a private sector, post-

accident testing program, holding that its “individualized

suspicion’’ requirement was ‘‘ readily applicable’’. Brother-

hood of Locomotwe Engineers v. Burlington Northern

Railroad Company, 838 F.2d 1087, 10983 (9th Cir. 1988)?

Accordingly, amicus has a strong interest in the out-

come of this matter. CLC believes that the Ninth Cir-

cuit’s decision unjustifiably frustrates the proper regula-

tion of employee and public safety and erroneously re-

stricts legitimate substance abuse testing.

ray

Vv

2 _- United States v. Jacobsen, 466 U.S. 109 (1984). While the

Fourth Amendment applies primarily to public sector employers,

courts have applied its protections in the private sector where

significant government involvement is present. See, e.g., Blum

v. Yaretsky, 457 U.S. 991 (1982).

3 A petition for review of the Ninth Circuit's decision in

Burlington Northern was filed with the Court on April 1, 1988

(Docket no. 87-1631).

4

REASONS FOR GRANTING THE WRIT

In ruling that individualized suspicion is necessary

before drug screening can be implemented under the

FRA’s post-accident testing regulations, the Ninth Cir-

euit has rendered a decision which conflicts with the de-

cisions of every other federal court of appeals which has

dealt with the drug testing issue. Nutional Treasury Union

v. von Raab, 816 F.2d 170, (Sth Cir. 1987), cert. granted,

No. 86-1879 (Feb. 29, 1988); McDonell v. Hunter, 809 F.2d

1302 (8th Cir. 1987); Jones v. McKenzie, 833 F.2d 335

(D.C. Cir. 1987) ; Shoemaker v. Handel, 795 F.2d 1136 (3rd

Cir.), cert. denied, 107 S.Ct. 577 (1986); and Division 241

Amalgamated Transit Union v. Suscy, 538 F.2d 1264 (7th

Cir.), cert. denied, 429 U.S. 1029 (1976). The Ninth Cir-

cuit’s contrary position rests upon its determination

that the other circuits did not consider ‘precisely the fae-

tors we consider relevant’? (von Raab); reached a decision

‘‘without very thorough analysis’? (Sysey); ineorrectly

reasoned that ‘‘urine testing is a lesser intrusion than body

searches’? (McDonell); and adopted a ‘‘rationale [not]

applicable to the employees in our case’? (Shoemaker).

The Ninth Cireuit’s opinion in Burnley has introduced

conflict and confusion to the issue, and review is highly

desirable and appropriate.

Further, review is warranted because the Ninth Cir-

cuit decision, together with the other cireuit court opinions

which have addressed drug testing issues, raises important

questions of federal law which have not been, but should

be, settled by this Court. The new technology of drug test-

ing, the exponential escalation of substance abuse in the

workplace, and the tragie endangerment of employees and

the public as a result of drug-related accidents have

spawned a plethora of search and seizure cases which

ery out for authoritative resolution and guidance. Since

the scope of Fourth Amendment protections has not pre-

viously been considered by this Court in the context of

drug sereening and critical safety interests, review is most

appropriate.

I. FACTS AND SUMMARY OF POSITION

A. Facts

Since the facts have been fully described in petitioners’

brief, CELC will highlight certain areas which underscore

that review is warranted.

=

After several years of rulemaking, pursuant to its

delegated authority under the Federal Railroad Safety

Act of 1970, the FRA promulgated regulations designed to

prevent accidents, injuries and property losses due to

aleohol and drug impairment of railway employees. The

regulations were finalized after the FRA considered ex-

tensive safety data and evaluated the viewpoints of in-

dustry, labor and the general public.

It is important to emphasize that the regulations in

question require railroads to conduct blood and urine test-

ing only in 'imited situations where railroad employees

are ‘‘direetly’’? involved in a ‘‘major train accident,’

and authorize railroads to conduct breath and urine tests

+ Subpart C (49 C.F.R. 219.201-213) defines a “major” acci-

dent as one which involves a fatality, the extensive release of

hazardous material, or a reportable injury or damage of $50,000

or more. (49 C.F.R. 219.201, 203).

6

where two supervisors have ‘‘reasonable suspicion’’ that

an employee is under the influence of or impaired by

aleohol or drugs, based upor specific observations con-

cerning the appearance or behavior of the employee. In

addition, the regulations provide procedural safeguards

for employees, including the right to disciplinary hearings

and the right to insist upon blood testing for the most ae-

curate determination of impairment.

When respondents chalienged the regulations on con

stitutional and statutory grounds, the district court granted

summary judgment for petitioners, ruling that the govern

mental interest in railway safety for employees and the

general public was paramount. The lower court noted that

“objective”? triggering events were necessary to justify

testing, and that the regulations made a ‘‘gennine attempt”

to reasonabiy timit the scope of the testing requirements.

Finding the railroad industry to be ‘‘pervasively regu-

lated,’’ the eourt applied the standard of constitutional

scrutiny for administrative searches, and found the tests

reasonable in light of the government's interest in safety.

The Ninth Cireuit reversed, holding that **individual-

ized suspicion’’ was required before drug testing could

he ‘justified at its inception’* so as to meet Fourth Amend-

ment requirements. The court refused to apply the ad-

ministrative search standard and ruled that the tests were

not *‘reasonably related’* to improving rail safety, as they

could not detect current drug intoxication or degree of im-

pairment. The Ninth Cireuit coneluded that the Fourth

Amendment required ‘‘observable symptoms of impair-

ment with a positive [test] result,’’ and not just involve-

ment in an accident, to provide a **sound basis’? for drug

testing and potential disciplinary action,

i

B. Summary of Position

The Court should grant certiorari for two reasons.

First, review is necessary to resolve the conflict among

the cireuits on the issues presented. Employers that re-

quire drug testing upon the oceurrence of an accident are

at a total loss to determine which precedent to follow.

This is particularly true where, as in the case of many

CELC members, employers do business throughout the

United States and find it impossible to reconcile the in-

consistent rulings. Review is highly desirable and neces-

sary to achieve clarity and uniformity in the law.

Second. the Court should review the Ninth Cirenit’s

decision because it presents an issue of major legal sig-

nificance and is seriously flawed in its constitutional analy-

sis. The court did not balance the competing interests which

should have been considered under the ‘‘reasonableness

test’? required by the Fourth Amendment. The Ninth

Cireuit’s failure to weigh factors of safety and health,

which have been consistently recognized as compelling by

other cireuit courts, has resulted in an erroneous decision

on a eritical constitutional question.

Given the confusion and uncertainty engendered by

the Ninth Cireuit’s opinion, it is imperative that this Court

provide direction as to the weight to be accorded the

vovernment’s interest in publie and employee safety. While

the Court has recognized the need for guidance in the drug

testing area by granting certiorari in National Treasury

Union v. von Raab, No. 86-1879 (Feb. 29, 1988), amicus

urees that ron Raab does not present the paramount issue

of publie safety. That issue is central to Burnley, and

review in this case is essential to address public safety

as ‘a basis for testing.

Il. REVIEW IS NECESSARY TO RESOLVE A

DIRECT CONFLICT AMONG THE

CIRCUIT COURTS

The Court should grant certiorari because the Ninth

Cireuit’s decision is hopelessly inconsistent with the rea-

soning of five other cireuit courts, and strays from the

constitutional standards enunciated in this Court’s prior

opinions.

The Fourth Amendment protects individuals against

searches and seizures that are ‘‘unreasonable.’’ As this

Court has defined that protection, it has become clear that:

The test of reasonableness under the Fourth Amend-

ment is not capable of precise definition or mechanical

application. In each case it requires a balancing of

the need fer the particular search against the invasion

of personal rights that the search entails.

Bell v. Wolfish, 441 U.S. 520, 559 (1979). This Court

focuses on two factors in determining whether a given

search is reasonable, and hence constitutional, under the

Fourth Amendment: (1) the degree to which it intrudes

upon the individual's legitimate privacy expectations, and

(2) the importance of the government interests underlying

the search. Only through careful balancing of these two

opposing interests can the constitutional reasonableness

of a particular search be determined.

A. The Ninth Circuit’s Rejection Of The Govern-

ment’s Public Safety Justification Conflicts With

The Opinions Of Other Circuits

In finding thet the FRA’s drug testing program was

not justified by the government's interest in public safety,

the Ninth Cirenit clashed with the holdings of every other

—_— —

9

circuit court which has addressed the issue. The Ninth Cir-

cuit properly stated that determining the reasonableness

of such a program “requires ‘balane[ing] the nature and

quality of the intrusion on the individual’s Fourth Amend-

ment interest against the importance of the governmental

interests alleged to justify the intrusion.’ ’’* However, in

applying that standard, the Ninth Cireuit ‘‘failed to en-

vage in the balancing of interests required by [the Su-

preme] Court.” 839 F.2d 970, 597 (Alarcon, J. dissenting).

All three cireuit courts that reviewed drug screening

in safety-sensitive industries prior to Burnley upheld the

testing in light of compelling safety concerns, In Division

241 Amalgamated Transit Union v, Suscy, 538 F.2d 1264

(7th Cir.), cert. denied, 429 U.S. 1029 (1976), the Seventh

Cirenit addressed the constitutionality of a drug testing

program in a factual setting very similar to this case.

Suscy involved rules of the Chicago Transit Authority re-

quiring testing for alcohol or drug usage of operating em-

ployees immediately following a serious accident. The

Seventh Cireuit discussed the nature of the employees’

Fourth Amendment rights, but found that those rights

were outweighed by the employer’s ‘paramount interest

in protecting the public by insuring that bus and train

operators are fit to perform their jobs.’? Id. at 1267

(emphasis supplied).

In Jones v. McKenzie, 833 F.2d 335 (D.C. Cir. 1987),

the Distriet of Columbia had instituted a program involving

5 = Quoting O'Connor v. Ortega, 127 S.Ct. 1492 (1987). As a

framework for applying the balancing test, the Ninth Circuit

adopted the two-prong test established by this Court in Terry

vy. Ohio, 392 U.S. 1 (1968), inquiring whether the drug testing

was (1) “justitied at its inception,” and (2) “reasonably related

in scope” to the problem being addressed.

10

the routine testing of certain school employees for drug use.

The tests, administered as part of the employees’ periodic

physical examinations, were required for all bus drivers,

mechanies, and bus attendants. In evaluating the constitu-

tionality of the program, the Cirenit Court balanced the

intrusion on Fourth Amendment privacy interests against

the government interest invelved. The court acknowledged

that “strong privacy interests” were implicated by the

testing program, but noted the existence of ‘‘serious safe-

ty concerns on the other side of the balanee.”’ Id. at 340

(emphasis in original). In reconciling these interests, the

court stated that ‘‘a governmental concern is particularly

compelling when it involves the physical safety of the em-

ployees themselves or others.”’ Id. Given the existence

of such a compelling interest in physical safety, the Cir-

enit Court held the testing program to be reasonable, and

thus constitutional.

Finally, the Eighth Cireuit upheld the drug testing of

prison employees in McDonell v. Hunter, 809 F.2d 1302

(Sth Cir. 1987). There, the Iowa Department of Cor-

rections adopted policies requiring correctional em-

ployees to submit to urine tests upon the request of De-

partment officials. The court, while finding that such

testing plainly implicated the employees’ Fourth Amend-

ment rights, wpheld the drug screening ‘‘in light of the

difficult burdens of maintaining safety, order and se-

curity that our society imposes on those who staff our

prisons.’ 7d. at 1306, In so holding, the Kighth Cireuit

was sensitive to the fact that ‘‘the institutional interest

in prison security Is a central one.’? Id. at 1308.

In contrast to these decisions, the Ninth Cireuit in

Burniew completely cireumvented any diseussion of the

eovernment’s legitimate and compelling concern for public

11

safety. Yet it is the weight of that concern, when balanced

against the individual’s privacy interest, that establishes

the constitutional reasonableness of the testing. The FRA

regulations were promulgated in response to grave prob-

lems involving alcohol and drug abuse in the railroad in-

dustry. Employee use of drugs and alcohol in transporta-

tion poses serious hazards to the safety of co-workers and

the general public. That fact was recognized by each of

the other circuits to address this issue, as well as by the

district court and the Railway Labor Executives’ Asso-

ciation in this case.°

Notwithstanding the compelling nature of the govern-

ment’s concerns for public safety, the Ninth Cirewit focused

its analysis ‘‘solely on the degree of impairment of the

workers’ privacy interests.” 599 F.2d 575, 597 (Alarcon,

J. dissenting). The majority's analysis in Burnley is con-

trary to the holdings in Suscy, Jones and McDonell, and

refleets the Ninth Cirenit’s de facto abandonment of the

balancing test established by this Court in its numerous

decisions addressing the reasonableness of searches under

the Fourth Amendment.

B. The Ninth Circuit’s ‘‘Particularized Suspicion’’

Standard Is Improper And Contradicts The Hold-

ings Of Other Circuit Courts

In spite of its recognition that ** [t}|he Supreme Court

has not yet determined whether .. . there must be in-

dividualized or particularized suspieion”’ to justify a

search under the Fourth Amendment, the Ninth Cireuit con-

6 The district court found that testing served the government's

interest in “railway safety, safety for employees, and safety for

the general public.” The RLEA concedes that substance abuse

pases serious threats to the safe operation of the nation’s rail

systems.

12

eluded that such suspicion ‘‘is essential to finding toxi-

ecological testing of railroad employees justified at its im-

ception.’ That conelusion is inconsistent with principles

of law established by this Court, and contradicts the hold-

ines of the other cirenits that have addressed the issue.

1. The Ninth Circuit standard is inappropriate

in light of prior Supreme Court rulings

Under prior decisions of this Court, a search is jwesti-

fied at its inception ‘*when there are reasonable grounds

for suspecting that the search will turn up evidence [of

the suspected impropriety ].”’ New Jersey v. T.L.0., 469

U.S. 325, 342 (1985). The Ninth Cirenit noted that the

Court has expressly reserved the question ef whether par-

ticularized suspicion is an irreducible minimum under the

“reasonable grounds for suspecting’? standard. Never-

theless. in the very next sentence of its opinion, the Ninth

Circuit adopted the particularized suspicion standard,

deseribing such suspicion as ‘‘essential’’ to the permissible

testing of railroad employees. The court then concluded

that “accidents, incidents or rule violations” cannot, in

and of themselves, justify the imposition of drug testing.

Not only does the Ninth Cireuit’s opinion proclaim a

new standard for drug testing, it simultaneously announces

that serious accidents and rule violations cannot form a

constitutionally adequate basis upon which to base a test-

ing program. Thus, under Burnley, drug testing is pro-

hibited even though a linkage between employee drug use

and serious aceidents exists nless the employer can demon-

strate a basis for suspecting drug usage by each individual

to be tested. The Ninth Cireuit ruled that such a pre-

requisite to testing ‘‘poses no insuperable burden on the

qb nr contees OSL

a

13

government.’? On the contrary, requiring particularized

suspicion prior to testing effectively precludes timely dis-

covery of drug use.” Such a requirement severely limits

the ability of employers to identify and remedy drug

problems and hampers efforts to prevent the recurrence

of serious accidents and fatalities.

9. Other circuits have consistently upheld test-

ing in the absence of particularized suspicion

Prior to Burnley all five of the circuit courts that

addressed the propriety of drug testing in the absence of

partieularized suspicion upheld such testing as ‘‘reason-

able.”’ In Suscy, the Seventh Cireuit viewed involvement

in a serious accident sufficient to warrant testing in light

of compelling safety interests. In Jones, where the school

system’s drug sereenine was conducted as part of the rou-

tine physical examination given each employee. the testing

was upheld. Similarly, in McDonell, the Kighth Cireuit

found testing constitutional despite the fact it required

no showing of particularized suspicion.

Two other cireuit courts have upheld drug testing

programs without requiring individualized suspicion. In

7 This is especially true where, as in the railway industry, em-

ployees often work in isolation {rom others and are not subject

to frequent supervisory observa von. Further, as the district

court noted in its opinion, ‘the disappearance or loss of [evi-

dence of drug usage]” poses a serious problem where testing

is not conducted immediately loliowing an accident.

8 The Ninth Circuit concluded that testing was not “reasonably

related” to railway safety since tests by themselves cannot con-

clusively establish current impairment. However, the FRA test-

ing guidelines clearly demonstrate that the results of drug tests

are considered along with other relevant data in making the

ultimate determination of impairment. In fact, the notice to

employees concerning testing recognizes that blood tests only

provide information “pertinent to current impairment.”

14

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

107 S.Ct. 577 (1986), the Third Cirenit reviewed the con-

stitutionality of New Jersey Racing Commission regula-

tions requiring racing officials, jockeys, trainers and

grooms to submit to breathalyzer and urine testing at the

direction of the State Steward. Those regulations were

part of a comprehensive regulatory scheme designed to

assure public confidence in the integrity of the racing in-

dustry. The Third Cireuit found the racing industry to

be a “‘heavily regulated industry,’’ and therefore applied

the standard of reasonableness necessary to justify an

administrative search. Under that standard, the court

upheld the regulations as based on a strong state interest

accompanied by the reduced privacy expectation of those

persons employed in the industry.’

In National Treasury Union v. von Raab, 816 F.2d 170

(Sth Cir. 1987), cert. granted, No. 86-1879 (Feb. 29, 1988),

9 — The Ninth Circuit struggled to distinguish the facts of Shoe-

maker from the instant situation, emphasizing that jockeys, as

persons employed in the “regulatory activity,” were “the princi-

pal regulatory concern.” “In contrast,” the court stated, “the

extensive regulation of the railroad industry . . . has always been

geared to assuring the safety and proper maintenance of equip-

ment and facilities.” The unpersuasiveness of this distinction is

evident from the government's long tradition of regulating the

conduct of railroad workers to promote public saiety. As the

dissent correctly noted, “the activities of railway personnel are

closely regulated to promote safety.” indeed, “an idle locomo-

tive... is harmless. It becomes lethal when operated negligently

by persons.” 839 F.2d at 593. (Emphasis added.)

An additional distinction made by the Ninth Circuit related

to the railway employees’ expectations of privacy. While the

jockeys in Shoemaker were subject to extensive regulation and

thus possessed diminished expectations of privacy as to their

physiological conditions, the Ninth Circuit tound that raijway

employees’ privacy expectations were not similarly diminished.

(Continued on tollowing page)

15

the Fifth Cireuit Court of Appeals expressly rejected the

argument that individualized suspicion is constitutionally

required for the drug testing of employees. There, the

United States Customs Service adopted regulations re-

quiring employees to submit to urine testing prior to trans-

fer into sensitive drug enforcement positions. The Cus-

toms Service argued that the testing was justified to pre-

serve the Service’s integrity in drug enforcement opera-

tions. Finding the testing ‘‘ineident to the primary busi-

ness of [the Customs Service]’’ and ‘‘necessary to carry

on [that] business,’’ the Fifth Cirenit found the testing

program was -arranted. In balancing the employees’

privacy interests against the interest in institutional in-

tegrity, the court refused to adopt a standard of in-

dividualized suspicion. The court found that the Customs

Service’s compelling interest in uncovering drug usage

was such that ‘the bafance of interests precludes insistence

upon ‘some quantum of individualized suspicion’.” Id.

at 176-177, quoting Delaware v. Prouse, 440 U.S. 648

(1979).

(Continued from previous page)

This distinction must also fail. The regulations provided railway

employees with explicit notice of accident testing procedures,

and of the right to blood testing to “provide information perti-

nent to current impairment.” Given the railroad industry's

historical emphasis on satiety, and the specific notice of these

regulations, the railway employees’ expectations of privacy were

identical to those found to be diminished in Shoemaker.

Accordingly, as in Shoemaker, the administrative search

standard should have been applied. In fact, since the regulatory

scheme in Burnley arises out of compelling public safety con-

cerns not present in the horse racing industry, the administrative

search standard is more appropriate here than in Shoemaker.

To allow drug testing of jockeys while prohibiting testing of rail-

road employees would be absurd in light of the much greater

threat to public satety present !n the transportation industry.

16

III. REVIEW SHOULD BE GRANTED TO ADDRESS

IMPORTANT QUESTIONS OF CONSTITUTIONAL

LAW WHICH HAVE NOT BEEN, BUT SHOULD

BE, SETTLED BY THIS COURT

As the facts of Burnley, Jones, McDonell and Suscy

demonstrate, drug use poses serious health and safety

hazards for employees and the public. The seope of drug

abuse in this country has expanded greatly, rendering em-

ployee intoxication one of the foremost causes of work-

place accidents. Employers and regulatory agencies are

turning increasingly to drug testing as a means of identi-

fying substance abuse and responding to critical safety

and health problems. At the same time, the technology

of drug screening has raised legitimate concerns about in-

trusions upon personal privacy, making the permissibility

of employee testing the subject of widespread litigation

and debate.

This controversy results, in part, from the fact that

drug testing in safety-sensitive industries has never been

addressed by this Court. The conflicting decisions of lower

courts that have grappled with this issue illustrate both

its growing importance and the need for authoritative

euidance. In the absence of such guidance, the right to test

employees and the manner in which testing can be imple-

mented often correspond more closely to the jurisdiction

in which testing takes place than to the proper balancing

of safety and privacy concerns. For example, while safety

concerns have been recognized as adequate justification

for employee drug testing in most of the eases addressing

17

the issue," those concerns have been found inadequate by

other courts in even the most compelling settings."

The two central issues that underlie the courts’ in-

ability to resolve drug testing disputes are the weight to

be aceorded health and safety concerns and the adequacy

of generalized suspicion to justify employee testing. In

Suscy, McDonell and Jones, the courts found that the

weight of the employer’s interest in employee and public

safety was adequate to justify testing, even though no in-

dividualized suspicion was demonstrated. Significantly,

these issues are at the core of the dispute between the ma-

jority and dissent in Burnley, and are thus properly framed

for resolution by this Court.” Review of Burnley would

10 Drug testing programs have been upheld by courts in a

variety of contexts. The most notable of these decisions include

Allen v. City of Marietta, 601 F. Supp. 482 (N.D. Ga. 1985)

(municipal utility employees) ; Burka v. New York City Transit

Authority, No. 85 Civ. 5751 (S.D.N.Y., Feb. 1, 1988) (mass transit

workers); and Turner v. Fraternal! Order of Police, 500 A.2d 1005

(D.C.App. 1985) (police officers).

1 = See, e.g., National Federation of Federal Employees Vv.

Carlucci, No. 86-0681 (D.D.C. Mar. 1, 1988) (pilots, air traffic

controllers, and mechanics) ; and Lovvorn v. City of Chattanooga,

647 F. Supp. 879 (E.D. Tenn. 1986) (firefighters). The Eighth

Circuit’s opinion in McDonell reversed the district court's hold-

ing that testing ,o! correctional employees violated the Fourth

Amendment.

12 Indeed, the magnitude of the issues in this case—and the

flawed nature of the Ninth Circuit's analysis of drug testing pro-

grams——is underscored by that court's recent decision in Brother-

hood of Locomotive Engineers Vv. Burlington Northern Railroad

Company, 838 F.2d 1087 (9th Cir. 1988). There, in finding that

the implementation of a private sector, post-accident testing

(Continued on following page)

18

allow this Court to resolve issues of critical constitutional

import and provide needed guidance to the lower courts.

(Continued from previous page)

program violated a collective bargaining agreement, the court

relied upon Fourth Amendment principles:

Our analysis here is aided by reference to fourth

amendment doctrine. [Burlington Northern] is not a

government agency and, therefore, is not subject to the

restrictions of the fourth amendment. llowever, the

focus of our inquiry—both under the fourth amend-

ment and an implied provision of a collective agree-

ment—is the expectation of privacy of those who will

be subject to urine testing.

Id. at 1092.

Reasoning that a railroad worker's expectations of privacy

under a collective bargaining agreement “are related” to pri-

vacy expectations under the Fourth Amendment, the court found

Burnley's requirement of individualized suspicion to be ‘‘readily

applicable”:

Although the source of the invasion is different, the

privacy interest is the same. In the case of urine test-

ing programs the Constitution draws a line between

those programs based on particularized suspicion and

those based on generalized suspicion. [Citing Burnley).

The former are permissible; the latter are not.

Id. at 1093.

The Ninth Circuit, without citing any supporting authority,

applied Fourth Amendment standards to drug testing in the pri-

vate sector. Further, it expressly adopted Burnley's particularized

suspicion standard. As the dissen properly pointed out, this

ruling goes far beyond the well accepted limitation of Fourth

Amendment principles to “governmental intrusions.”

Review of Burnley is critical not only because of its im-

mediate impact on public sector employers, but also because of

the clear implications for all employers should the Ninth Circuit

be allowed to extend its analysis—as it already has in Burling-

ton Northern—to employers in the private sector. By reversing

Burnley. the Court can clarify the scope of Fourth Amendment

protections and the importance ot safety concerns in justifying

drug testing programs. Further, by resolving the issues in Burnley

in the manner amicus urges, the Court, in effect, would correct

the Ninth Circuit’s unwarranted application of Fourth Amend-

ment principles to private sector, post-accident testing.

res

19

Iv. THE COURT SHOULD GRANT REVIEW TO PRO-

VIDE GUIDANCE REGARDING IMPORTANT IS-

SUES NOT RAISED BY VON RAAB

CELC urges the Court to grant review notwithstand-

ing that certiorari has been granted in the von Raab case.

The issues in von Raab are narrowly focused upon the

interests of a governmental agency, the Customs Service,

to assure the honesty and integrity of its operations in

dealing with drug smuggling. Testing in that case in-

cluded all employees who sought promotions to drug en-

forcement positions. In contrast, the drug testing in Burn-

ley is tied to the ocenrence of serious accidents, and thus

focuses upon the more universal issue of publie safety and

the safe performance of vital services. The far-reaching

impact of the drug testing in Burnley, designed to assure

safety in an industry inextricably interwoven throughout

our business and private lives, provides the Court with aa

excellent opportunity to give enidanece on a matter of great

legal and societal importance."

Indeed, by considering both von Raab and Burnley,

this Court ean resolve important and complementary issues

which have taken center stage in Fourth Amendment search

and seizure litigation. Courts have been inundated with

legal challenges to drng testing programs, and guidance

13 von Raab and related decisions like McDonell and Shoe-

maker fall within a category of cases involving security and cor-

ruption in regulated entities. In contrast, Burnley involves

safety-sensitive jobs which, if performed while under impair-

ment. can result in fatalities or serious injuries. Regardless of

the outcome in von Raab, the important and far-reaching issue

of public endangerment in safety-sensitive industries would not

he resolved. Given the compelling nature of the satety interest

in Burniev, review would alow the Court to clearly address this

critical issue.

20

is greatly needed to assure compliance with constitutional

requirements and minimize unnecessary litigation, Given

the diffieult process of balancing conflicting interests under

the Fourth Amendment, clarifieation as to the weight of

safety concerns under the Court’s reasonableness test is

highly desirable.

It is urged that the Court not hold this matter in

abeyance pending the outcome of von Raab, as to do so

would result in the loss of an important opportunity to

provide authoritative direction in an area permeated with

uncertainty and confusion. Accordingly, CELC requests

that the Court grant review of the petition herein and give

full consideration to the issues raised, together with those

already before the Court in von Raab.

V. CONCLUSION

The Court should grant the petition for certiorari in

erder to resolve the confliet in the eirenits and affirm that

legitimate safety concerns justify post-accident drug test-

ing in the absence of individualized suspicion.

Dated: April 15, 1988

Respectfully submitted,

Vieror SCHACHTER

Counsel of Reeord

Lawrence Hecimovicn

Scuacuter, Kristorr, Ross

Spracve & Curiae

Attorneys for Amicus Curiae