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

Supreme Court, U.S, “=

n EILED

No. 87-1555 JUL 27 1986

In The

Supreme Court of the United States

October Term, 1987

eS

JAMES H. BURNLEY, et al.,

Petitioners,

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

+

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

+

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

oo

RicHARD M. STEPHENS RONALD A. ZUMBRUN

Of Counsel *ANTHONY T. Caso

Pacific Legal Foundation *Counsel of Record

555 Capitol Mall, Suste 350 Pacific Legal Foundation

Sacramento, California 95814 555 Capitol Mall, Suite 350

Telephone: (916) 444-0154 Sacramento, California 95814

Telephone: (916) 444-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation

=

——

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

OR CALL COLLECT (402) 342-2831

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES CITED.................. iii

SED 6 oS oc cdevessucdenecescoecss 1

ccc ctehdancbkneess snes eéseecce os 2

STATEMENT OF THE CASE...........scccccccccee. 2

SUMMARY OF ARGUMENT ................-.545: 3

PE Gg 05s eCubu sya seks heeecee oecceeseuns 4

I. THE FOURTH AMENDMENT DOES NOT

REQUIRE A WARRANT TO BE ISSUED PRIOR

TO CONDUCTING ANY OF THE DRUG TESTS

REQUIRED OR AUTHORIZED BY THESE REG-

FORA TOOT CITT TCT TE TTT TT 4

A. Warrants Should Not Be Required Because

the Drug Testing Program at Issue Is Similar

to the Cases Involving Administrative

Searches of Closely Regulated Industries... 5

B. The Regulations Meet the Criteria for Appli-

cation of the Administrative Search Excep-

tion to the Warrant Requirement .......... 9

1. The Governmental Interest Is

i ic we 10

2. The Drug and Alcohol ‘esting Is Neces-

sary to Further the Interest of Having

Safe Operation of Railroads............ 11

3. The Testing Program’s Certainty and

Regularity Provide a Constitutionally

Adequate Substitute for a Warrant..... 12

ii

TABLE OF CONTENTS-—Continued

II. THE REGULATIONS ARE REASONABLE..... ow

A. The Regulations Are Reasonable Because

the Employees’ Interests Are Relatively Min-

- Peet 13

B. The Regulations Are Reasonable Because the

Public Interest Is Substantial.............-. 15

CONCLUBION 2... ccc ccccccccvccscccescuscssssbenet 18

a

TABLE OF AUTHORITIES CITED

Page

Cases

American Federation of Government Employees

v. Weinberger, 651 F. Supp. 726 (S.D. Ga. 1986) ....14

Brotherhood of Locomotive Engineers v. Bur-

lington Northern Railroad Company, 838 F.2d

eee e cca ccsseseeescecccces 10

Brotherhood of Maintenance of Way Employees v.

Burlington Northern Railroad Company,

802 F.2d 1016 (8th Cir. 1986).................. 11, 14

Donovan v. Dewey, 452 U.S. 594 (1981) ............. 10

Lovvorn v. City of Chattanooga, 846 F.2d 1539

EEE EEE SST PTTT TTT ET TTETTEE ETS 14

National Treasury Employees Union v. Von Raab,

S16 F.2d 170 Gth Cir. 1967)............ ccc eeeeees 17

New Jersey v. T.L.O., 469 U.S. 325 (1985)............. 5

New York v. Burger, 482 U.S.__, 96 L. Ed. 2d 601

EE CERURER SESS esesceseccececccceces passim

O’Connor v. Oriega, 480 U.S.__, 94 L. Ed. 2d 714

CPE MEMER Ey Gwen es0ccecsccccccccss 5, 13, 16, 18

O'Halloran v. University of Washington, 679 F.

Supp. 997 (W.D. Wash. 1988) ...............00005. 17

People v. Tinneny, 99 Misc. 2d 962, 417 N.Y.S.2d

eee ehesneccsececcccccscccee 6

Rushton v. Nebraska Public Power District, 653 F.

Supp. 1510 (D. Neb. 1987), aff'd, 844 F.2d 562

EE EEE EE 14

Schaill ex rel. Kross v. Tippecanoe County School

Corporation, 679 F. Supp. 833 (N.D. Ind. 1988) ....15

iv

TABLE OF AUTHORITIES CITED-Continued

Page

South Dakota v. Opperman, 428 U.S. 364 (1976) .....10

Taylor v. O’Grady, 669 F. Supp. 1422 (N.D. IIl.

Pb eonnccdncdus ccteckshesenensebansGnueesesunt 14

United States v. Biswell, 406 U.S. 311 (1972)......... 12

United States v. Martinez-Fuerte, 428 U.S. 543

SEE s cue piusenascceuscencuaeseuvecbessueseaseans 16

CONSTITUTION

Powsthh Amore... 2... ccc ccccccccccsccess 3, 4, 8, 12

. i PTT TTT TTT re 3

STATUTES

GE GRE, © GREED oon vcccccescecstccesscccsdiensaves 6

DO GE iikccdecécdscccveNancnccvswthapeneseutencens 6

OP Feiles Oe I wk cbc cicdcnencecceccisesssvessesconeas 7

49 C.FR. § 218.1-218.30 (1986) ...........-. cece eeeee 7

PE kdedhecscecudessacsnctevassiucesestesneanee 7

2) ee eee re 3

SD ERs cccoscucnseduscasshveuSésecunanuass 15

404450060 6cndpeiescencdesédedesaseenas eens 7

RuLes

Supreme Coust Rake 36. .......ccccccccccccssceccces 1

Vv

TABLE OF AUTHORITES CITED-Continued

Page

MisceLLANEOUS

National Institute on Drug Abuse, Developing an

Occupational Drug Abuse Program (1985)......... 17

Testing for Drug Use in the American Workplace:

A Symposium, 11 Nova L. Rev. (1987) ............ 14

United States Drug Enforcement Administration,

Oe I be nba b nS davunvsesceses 16, 17

No. 87-1555

+

In The

Supreme Court of the United States

October Term, 1987

+

JAMES H. BURNLEY, et al.,

Petitioners,

V.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents

+

On Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit

+

AMICUS CURIAE BRIEF OF PACIFIC LEGAL

FOUNDATION IN SUPPORT OF PETITIONERS

= 3

INTEREST OF AMICUS

Pursuant to Supreme Court Rule 36, Pacific Legal

Foundation respectfully submits this amicus curiae brief

in support of petitioners. Consent to the filing of this

brief has been granted by counse! for all parties. Copies

of the letters of consent have been lodged with the clerk

of this Court.

Pacific Legal Foundation is a nonprofit, tax-exempt

organization incorporated under the laws of California

for the purpose of participating in litigation affecting the

public interest. Policy for the Foundation is set by a

Board of Trustees composed of concerned citizens, the

majority of whom are attorneys. The Board of Trustees

evaluates the merits of any contemplated legal action and

authorizes such legal action only where the Foundation’s

position has broad support within the general commu-

nity. The Foundation’s Board of Trustees has authorized

the filing of an amicus curiae brief in this matter.

Pacific Legal Foundation, its members, and suppor-

ters have a great interest in the safe operation of the

transportation industry. Therefore, the Foundation sup-

ports reasonable measures to detect and prevent needless

accidents risking human lives and wasting the efforts of

human resources caused by drug and alcohol abuse. The

testing program provided by the federal regulations chal-

lenged in this litigation is not only reasonable, but is also

a responsible method of ensuring safety. Pacific Legal

Foundation’s public policy perspective and litigation

experience will provide this Court with additional argu-

ments relevant to the proper resolution of this matter.

+

OPINION BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported at 839 F.2d 575 (9th Cir.

1988).

>

STATEMENT OF THE CASE

The Federal Railroad Administration (FRA) adopted

regulations which set forth a drug testing program for

railroad industry employees. Those regulations are cod-

ified in 49 C.F.R. § 219, et seq. (1986). Subpart C requires

alcohol and drug testing by means of blood and urine

analysis for all employees involved in certain train acci-

dents. Those accidents include those involving either a

fatality, release of hazardous material accompanied by an

evacuation or injury, property damage of at least $500,000

or $50,000 if impact occurs, or a reportable injury (one

affecting an employee’s ability to work). Subpart D

authorizes, but does not require, breath or urine tests

when either a supervisor has a reasonable suspicion that

an employee is under the influence of alcohol or drugs or

an employee violates a railroad operating rule.

The respondents, Railway Labor Executives’ Associa-

tion (RLEA) and other railway labor orgenizations, filed

suit in 1985 challenging these regulations as being viola-

tive of employees’ Fourth Amendment rights to be free

frorn unreasonable searches and seizures, Fifth Amend-

ment rights to due process, equal protection, and privacy,

and several statutory rights. The District Court granted

summary judgment for the government on all grounds.

The Ninth Circuit Court of Appeals reversed on the

Fourth Amendment claim only and held that the regula-

tions constitute an unreasonable interference with

employees’ reasonable expectations of privacy. The gov-

ernment filed a petition for certiorari which this Court

granted on June 6, 1988.

+

SUMMARY OF ARGUMENT

As with administrative searches of closely regulated

industries, a warrant is unnecessary for the drug and

alcohol tests required by the challenged regulations. The

railroad industry is highly regulated in a manner which

affects not only managers and owners, but also

employees. Furthermore, a program of drug testing with-

out a warrant is necessary to advance the governmental

interest in safety. The regulations are rigid enough to

protect employees from the whims of a supervisor’s

discretion.

Moreover, the testing program is reasonable. The

employees’ privacy interests are relatively slight. No non-

incriminating evidence is obtainable through this pro-

gram. The government interests, as government and as an

employer, are great enough to justify a safety program

similar to others used throughout the American work

force. These regulations do not violate the Fourth

Amendment.

+

ARGUMENT

I

THE FOURTH AMENDMENT DOES NOT

REQUIRE A WARRANT TO BE ISSUED PRIOR

TO CONDUCTING ANY OF THE DRUG TESTS

REQUIRED OR AUTHORIZED BY THESE

REGULATIONS

The Fourth Amendment proscribes unreasonable

searches and seizures. One ensurer of reasonableness is

the issuance of a specific warrant based upon probable

cause by a neutral magistrate. Although such warrants

are typical, as the Court of Appeals recognized, they are

“not the sine qua non of reasonableness.” 839 F.2d at 582.

The Court has not required a warrant in cases where

“special needs, beyond the normal need for law enforce-

ment, make the warrant and probable cause requirement

impracticable.” New Jersey v. T.L.O., 469 U.S. 325, 351

(1985). These categories of cases where warrants and

probable cause are not required include searches of stu-

dents’ personal effects by school officials, id., searches of

workers’ desks by employers, O’Connor v. Ortega,

480 U.S. __, 94 L. Ed. 2d 714 (1987), and administrative

searches of closely regulated industries, New York v. Bur-

ger, 482 U.S. __, 96 L. Ed. 2d 601 (1987). A more exhaus-

tive list can be found in the Court of Appeals decision.

839 F.2d at 583 nll.

A. Warrants Should Not Be Required Because the

Drug Testing Program at Issue Is Similar to the

Cases Involving Administrative Searches of

Closely Regulated Industries

In New York v. Burger, 96 L. Ed. 2d 601, this Court

held that a search of an automobile junkyard need not be

preceded by a warrant based on probable cause or justi-

fied by any exception to the warrant requirement other

than the administrative search of closely regulated indus-

tries. This Court upheld the warrantless police inspection

and discovery of stolen automobiles. The reason is one’s

privacy expectations are attenuated by engaging in an

industry with a history of pervasive government over-

sight. Id. at 612. When determining whether the auto-

mobile junkyard business was a “closely regulated

industry,” the Court relied on the fact that the persons

engaged in the business must keep and make available to

officials “‘detailed records of purchases and sales.’” Id.

at 617 (quoting People v. Tinneny, 99 Misc. 2d 962, 969, 417

N.Y.S.2d 840, 845 (Sup. Ct. 1979)). That was the extent of

regulation which the Court held justified a warrantless

and unannounced inspection of the premises.

\

The railroad industry, however, is subject to much

more extensive federal regulation and has been for

decades. A whole title of the federal codes is devoted to

regulation of railroads and FRA is a government agency

involved in the same activity. Regardless of these facts,

the Court of Appeals held that the extensive regulation

applied only to railroad owners and managers and there-

fore could not be used to justify searches of employees.

This holding is inappropriate for several reasons.

First, not all of the penalties for violations of regulations

the Court of Appeals cited fall on the company as

opposed to its employees. 839 F.2d at 585 n.12. Persons

who fail to make complete reports can be held criminally

liable. 45 U.S.C. § 431(e), cited in 839 F.2d 585 n.12.

Second, and more importantly, it is naive to believe

that the extensive regulations have no effect on railroad

employees merely because most of the penalties can only

be assessed against the company. Surely, employees who

cause violations of federal regulations must give an

account of their actions or inaction to their supervisors, if

not to federal authorities directly. Federal regulations

have long affected the everyday lives of railroad workers.

Third, as noted by the dissent in the Court of

Appeals below, many regulations and statutes are specifi-

cally directed toward railroad employees. 839 F.2d at 593

(Alarcon, J., dissenting). These include 45 U.S.C.

§ 62(a)(1), regulating the number of working hours,

49 C.F.R. §§ 218.1-218.30, 218.37, and 220.61, requiring

certain safety procedures to be performed by employees,

and 49 U.S.C. § 1801, providing criminal penalties for

employees who knowingly transport hazardous

activities.

Fourth, the history of the administrative search does

not recognize any distinction between employers and

employees or between management and labor. It is highly

unlikely that the result in New York v. Burger would be

any different if, when inspecting the automobile junk-

yard, the police found an employee, rather than the

owner of the junkyard, in possession of stolen auto-

mobiles. An administrative search diminishes the expec-

tation of privacy of all who work in the industry since the

inspection takes place where employees work.

There is a subtle suggestion in the Court of Appeals’

decision that the administrative search exception is based

on implied consent when a business applies for a license

and, since railroad employees are not licensed, the search

cannot apply to them. 839 F.2d at 585. Although consent

may have been implied in other administrative search

cases, New York v. Burger should have laid to rest the

notion that consent by obtaining a license is the under-

lying rationale. In Burger, the operator of the junkyard

did not have a license or consent to the search. 96 L. Ed.

2d at 609. Since he did not obtain a license and yet the

administrative search exception applied, a license as a

type of consent to search cannot be a prerequisite for

administrative searches. That railroad employees may not

be licensed by the government is irrelevant to the appli-

cation of the administrative search exception.

There is no reason to restrict the application of the

administrative search exception to employers, rather than

to employees. Employees’ privacy interests are also atten-

uated because they work in the physical area being

searched. The Court of Appeals inappropriately refused

to extend the nature of the search allowed by this excep-

tion from searches of property to searches of persons.

839 F.2d at 584. Urine, blood, and breath testing is clearly

not as intrusive as a pat down search, a strip search, or

probably the most intrusive, a body cavity search. How-

ever, since drug testing involves an analysis of bodily

fluids, there is an assumption that the search is highly

intrusive. Although appealing at first glance, the assump-

tion is wrong.

First, urine and blood tests have long been a part of

routine physical examinations, as opposed to searches of

homes and premises which are supposedly less intrusive,

although not nearly as common. Second, and more

importantly, blood, urine, and breath tests are a uniquely

narrow scoped search. The obvious concern of the Fourth

Amendment’s requirement of reasonable expectation of

privacy is that searches normally reveal many private

and noncriminal aspects of one’s life. One cannot search a

home and not see private, legitimate information irrele-

vant to the object of the search, such as one’s personal

records, correspondence, reading material, and a host of

personal effects. However, that is not the case with drug

testing. The tests in this case are as if law enforcement

officers could enter one’s home with a filter over their

eyes to block vision to every private aspect of one’s life,

except the object of the search. Unlike any other search,

drug testing allows a search for the items sought without

revealing any legitimate activity irrelevant to the search.

“Extending” the administrative search exception to drug

testing from premises searches is an extension to a less

intrusive search.

There can be no doubt that the railroad industry is

one of the most highly regulated industries in the country

and has been so for a long time. The pervasiveness of

these regulations touch the everyday work life of railroad

employees. Drug and alcohol testing reveals less about

the private lives of the ones being tested than does a

search of the premises where they work or live. The lack

of obtaining a warrant should be justified under the

rationale of the administrative search exception.

B. The Regulations Meet the Criteria for Application

of the Administrative Search Exception to the War-

rant Requirement

Although the railroad industry is closely regulated,

that fact alone does not give the government carte blanche

to conduct any type of search it wants. A search pursuant

to this exception must exhibit three criteria:

“First there must be a ‘substantial’ government inter-

est that informs the regulatory scheme pursuant to

which the inspection is made.

“Second, the warrantless inspections must be

‘necessary to further [the] regulatory scheme.’

“s

.. ‘[T]he statute’s inspection program, in

terms of the certainty and regularity of its applica-

tion, [must] provid[e] a constitutionally adequate

substitute for a warrant.’” New York v. Burger,

10

96 L. Ed. 2d at 614 (quoting Donovan v. Dewey,

452 U.S. 594, 601-03 (1981)).

Each of these criteria are met in the present case.

1. The Governmental Interest Is Substantial

No one can seriously doubt that the government has

a substantial interest in knowing whether railroad

employees are using drugs or alcohol. Safety is the

obvious substantial interest. As Judge Alarcon poignantly

stated: “An idle locomotive, sitting in the roundhouse, is

harmless. It becomes lethal when operated negligently by

persons who are under the influence of alcohol or drugs.”

839 F.2d at 593 (Alarcon, J., dissenting). “[L]ocomotives in

the hands of drug or alcchol-impaired employees are the

substantial equivalents of time-bombs endangering the

lives of thousands.” Id. at 596.

Accidents involving drug using railroad personnel

may not be common, but they are catastrophic and need-

less. See, e.g., Brotherhood of Locomotive Engineers v. Bur-

lington Northern Railroad Company, 838 F.2d 1087 (9th Cir.

1988). There is nothing in the administrative search line

of cases to suggest that any particular search be likely to

produce evidence of wrongdoing. In fact, this Court in

South Dakota v. Opperman, 428 U.S. 364, 378 (1976), recog-

nized that searches may be justified by the severity of

harm caused by failing to search, even though the likeli-

hood of finding what is looked for during any particular

search may be quite small. The deterrent effect of know-

ing a search can occur also should not be discounted.

Although evidence of drug and alcohol abuse

acquired from these tests may be a small minority of

those tested, the government interest is not insignificant

11

because those few who are impaired can cause cata-

strophic damage to life, limb, and property.

2. The Drug and Alcohol Testing Is Necessary to

Further the Interest of Having Safe Operation

of Railroads

There is no way to ensure that railroad personnel are

not abusing drugs or alcohol other than by testing.

Requiring reasonable, individualized suspicion of impair-

ment is inappropriate for several reasons. Many

employees may work without close supervision. The facts

which give rise to “suspicion” are subject to quite varied

interpretation. Testing based on such an amorphous stan-

dard could be subject to unfair overuse, underuse, and

inconsistent application. Most importantly, drug impair-

ment often does not carry any telltale signs as does

alcohol impairment.

“The drunken employee may exhibit the odor of

alcohol on his breath, may have slurred speech or a

stumbling gait .... But the use or abuse of marijuana

and other illegal drugs frequently does not produce

an externally obvious state of impairment. The intox-

icating effect of these substances is said to be primar-

ily mental or emotional; a user’s judgment or clear-

headness may be impaired without any obvious

physical sign of intoxication. It is the insidious nature

of these substances that too often the user’s faculties

are impaired and the damage done through a serious

error on his part before he realizes that he is

impaired and without any outward sign of his

impairment that could lead a supervisor or other

person to intervene.” Brotherhood of Maintenance of

Way Employees v. Burlington Northern Railroad Com-

pany, 802 F.2d 1016, 1020 (8th Cir. 1986).

Testing is the only reliable method to determine drug

impairment.

12

Deterrence of drug and alcohol abuse affecting

employees’ abilities is another obvious purpose of the

regulations. That purpose makes the testing particularly

appropriate for the administrative search exception, since

deterrence is a common purpose for such searches. See

United States v. Biswell, 406 U.S. 311, 316 (1972).

3. The Testing Program’s Certainty and Regularity

Provide a Constitutionally Adequate Substitute

for a Warrant

The regulations provide both certainty and regularity

in several respects. Employees involved in certain types

of accidents will be tested in a very specific manner.

There is nothing left to the whim of a supervisor. The

tests must take place as soon as possible aiter the acci-

dent. Qualified independent medical personnel are used.

Since the procedures surrounding the tests are stan-

dardized, there is no likelihood that an employee will be

subject to search at a supervisor’s whim. That is the

concern of the Fourth Amendment.

The requirement that the search be “certain” and

“regular” does not mean periodic. The Court in New York

v. Burger did not find it necessary to know why the

junkyard was inspected on that particular day. 96 L.

Ed. 2d at 609 n.2. Regularity is satisfied when the search

occurs under circumscribing conditions, such as those

which are required in the regulations presently at issue.

The regulations at issue meet the requirements for

administrative searches in closely regulated industries.

The rails are one of the most highly regulated industries

in the country and many of the regulations directly affect

employees in the industry. The testing is pursuant to the

substantial governmental interest in safety and is the

13

only effective means to promote that interest. The regula-

tions are pervasive enough to control the discretion of

supervisors. It is unnecessary and frustrating to the

safety objective to require a warrant prior to conducting

drug tests.

II

THE REGULATIONS ARE REASONABLE

The bottom line requirement for all governmental

searches is reasonableness. This requirement exists

regardless of whether or not a warrant is required. A

plurality of this Court articulated the process by which

reasonableness is determined in O’Connor v. Ortega. “In

the case of searches by a public employer, we must bal-

ance the invasion of the employees’ legitimate expecta-

tions of privacy against the government’s need for

supervision, control and the efficient operation of the

workplace.” Ortega, 94 L. Ed. 2d at 724 (plurality

opinion).

The balance in this case weighs in favor of the gov-

ernment’s interest.

A. The Regulations Are Reasonable Because the

Employees’ Interests Are Relatively Minimal

On the employees’ side-of the balance, there are

several privacy interests. One is to avoid the embarrass-

ing process of providing a urine, blood, or breath sample

in the first place. However, each type of these samples is

a routine part of modern physical examinations. If a

prospective employee cannot be required to provide a

sample for this drug testing program, urinalysis unre-

lated to drugs as part of a physical examination, or evena

physical examination itself, would be suspect as well.

14

The employees claim to have a privacy interest in the

information obtained from the urine and blood itself.

This is the primary argument that the tests reveal infor-

mation about their private lives. Some have argued that

urinalysis can reveal whether someone is pregnant, dia-

betic, or epileptic. However, the regulations do not autho-

rize testing for pregnancy, diabetes, or epilepsy. It may be

true that one could test for those characteristics, but this

program does not do so.

Employees also have an interest in the accuracy of

the tests, perhaps a due process interest. The Court of

Appeals stated that drug testing literature is “replete

with references to the unreliability of results.” 839 F.2d

at 589 (citing Testing for Drug Use in the American Work-

place: A Symposium, 11 Nova L. Rev. (1987)). However,

several courts have determined that combined use of the

enzyme multiplied-immunoassay test (EMIT) and the gas

chromatography/mass spectrometry (GC/MS) test is

nearly 100% accurate. See, e.g., Lovvorn v. City of Chat-

tanooga, 846 F.2d 1539 (6th Cir. 1988); Rushton v. Nebraska

Public Power District, 653 F. Supp. 1510 (D. Neb. 1987),

aff'd, 844 F.2d 562 (8th Cir. 1988); Taylor v. O’Grady, 669 F.

Supp. 1422, 1430 (N.D. Ill. 1987); Brotherhood of Mainte-

nance of Way Employees v. Burlington Northern Railroad

Company, 802 F.2d at 1019; American Federation of Govern-

ment Employees v. Weinberger, 651 F. Supp. 726, 729 (S.D.

Ga. 1986).

The RLEA may also claim that employees have a

privacy interest in not disclosing evidence of off duty

drug use. The urine testing reveals drug use long after

impairment. However, as Judge Alarcon noted in his

dissent, employees are notified that, if they have used

15

drugs recently, they should have a blood test taken.

“ ‘The blood test will provide information pertinent to current

impairment.’” 839 F.2d at 597 (Alarcon, J., dissenting)

(quoting 49 C.F.R. § 219.309(b) (2)) (emphasis by Judge

Alarcon). The regulations provide an easy method

whereby employees can protect whatever privacy inter-

ests there may be in off duty illegal drug use.

The employees’ legitimate interests affected by these

regulations are relatively small.

B. The Regulations Are Reasonable Because the Public

Interest Is Substantial

There are two types of interests at stake here. One is

the interest the government has in protecting the public

interest. The other is the interest the government has as

an employer. The public has a significant interest in

ensuring that railway employees are drug free. The sheer

power loosed in the movement of tons of cargo, and even

toxic materials, is deserving of respect. Concern for lives

of those in passenger trains should be paramount since

the consequences of small mistakes can be catastrophic

for even the most innocent of bystanders. The interest in

preventing future accidents caused by drugs or alcohol is

of the highest order.

The argument that one should be tested only if there

is a reasonable suspicion from observation of drug

impairment is practically unfeasible. One court recog-

nized that drug use is undetectable by simple observation

95% of the time. Schaill ex rel. Kross v. Tippecanoe County

School Corporation, 679 F. Supp. 833 (N.D. Ind. 1988).

16

A reasonable suspicion from mere observation also

creates more problems that it purports to solve. One

benefit of mandatory testing is that it does not involve

some official’s subjective discretion in deciding when and

which employees should be tested. The Court recognized

in United States v. Martinez-Fuerte, 428 U.S. 543, 559

(1976), that regularized checkpoints along highways

which do not involve an official deciding at whim who

and who not to stop are reasonable because of that fact. A

reasonable suspicion requirement for urinalysis would

only create a mechanism whereby the discretion of the

one who decides who gets tested could result in unfair-

ness. Testing of everyone involved in accidents as in this

case is the most fair manner.

The plurality in Ortega recognized that government

when acting as an employer is not as limited in its

treatment of employees as in its treatment of the general

public. ”[T]he privacy interests of government employees

in their place of work . . . while not insubstantial, are far

less than those found at home or in some other contexts.”

Ortega, 94 L. Ed. 2d at 728 (plurality opinion).

All employers have some interests in having a drug

free work force. One, some drugs have a long-term effect

on people which decrease their productivity for all time,

not just when “under the influence.” United States Drug

Enforcement Administration, Drugs of Abuse 37, 49 (1985).

Hallucinogens can cause flashbacks which distort percep-

tion even after the drugs are eliminated from the body.

See Drugs of Abuse at 49. Employers have an interest in

not paying for employees who have a diminishing worth.

Two, since many illegal drugs create a high susceptibility

to addiction, employers have an interest in preventing

——

17

their employees from becoming worthless to the

employer through addiction. Id. at 30-31. Three,

employees who use illegal drugs on their own time are

engaged in an illegal activity. Employers run the risk that

an employee will be arrested and, therefore, be unavail-

able for work. Employees who use drugs are also more

likely to abuse sick leave privileges. National Institute on

Drug Abuse, Developing an Occupational Drug Abuse Pro-

gram 10 (1985).

Although constitutional rights are not subject to the

outcome of a commercial plebiscite, the increasing

number of drug testing programs in the private sector is

not insignificant. More than 25% of the Fortune 500 com-

panies use some form of urinalysis drug testing for their

employees. National Treasury Employees Union v. Von Raab,

816 F.2d 170, 172 (Sth Cir. 1987). The increased use of

drug testing in the private sector suggests that urinalysis

for employees is an employment practice which society in

general is recognizing as reasonable. Reasonableness is

always a relative concepi. It would be anomalous to

declare a practice unreasonable which many employers

and employees have voluntarily agreed to use in the

private sector. The prevalence of drug testing in society

suggests that society considers the concept to be reason-

able. This is especially true in this case because the drug

testing program is not for the purpose of enforcing crimi-

nal laws against employees generally. See O'Halloran v.

University of Washington, 679 F. Supp. 997 (W.D. Wash.

1988).

The governmental interest in railroad safety is para-

mount. Additionally, the governmental interest in the

“efficient operation of the work place” is substantial.

18

Ortega, 94 L. Ed. 2d at 724 (plurality opinion). Together

these interests render the drug testing program

reasonable.

7

CONCLUSION

The railroad is one of the most pervasively regulated

industries in the country. These regulations even touch

the everyday work of railroad employees. The drug and

alcohol testing program should be free from the typical

warrant requirement under the long-standing exception

for administrative searches of closely regulated

industries.

The drug and alcohol testing program is also reason-

able. Although one’s urine, blood, or breath is searched,

nothing but the object of the search is revealed. That fact

makes drug testing one of the least intrusive types of

searches. On the other hand, the governmental interest in

ensuring safety on the rails is extremely important. It is

senseless to jeopardize human life by failing to detect

drug and alcohol abusers who operate this nation’s

railroads.

Amicus respectfully urges this Court to reverse the

erroneous decision of the Ninth Circuit Court of Appeals

in this matter.

19

DATED: July, 1988.

Respectfully submitted

RicHarRD M. STEPHENS RONALD A. ZUMBRUN

Of Counsel *ANTHONY T. Caso

Pacific Legal Foundation *Counsel of Record

555 Capitol Mall, Suite 350 Pacific Legal Foundation

Sacramento, California 95814 555 Capitol Mall, Suite 350

Telephone: (916) 444-0154 Sacramento, California 95814

Telephone: (916) ‘44-0154

Attorneys for Amicus Curiae,

Pacific Legal Foundation