# Amicus Curiae Brief — Skinner v. Railway Labor Executives' Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1431%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 602 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1431%3A07. Public record. Not legal advice.