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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et ai.,

Petitioners,

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE FOR

NATIONAL RAILROAD PASSENGER CORPORATION

AND ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONER

Of Counsel: ERWIN N. GRISWOLD

HAROLD R. HENDERSON Counsel of Record

Vice President—Law SARAH W. PAYNE

FREDERICK C. OHLY JONES, Day, REAVIS & POGUE

Associate General Counsel 1450 G Street, N.W.

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

CORPORATION (202) 879-3898

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

Washington, D.C. 20001

J. THOMAS TIDD

Vice President and General Counse!

ASSOCIATION OF AMERICAN RAILROADS

Law Department

50 F Street, N.W.

Washington, D.C. 20001

ee

WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

ss

QUESTION PRESENTED

Whether an agency charged with maintaining railroad

safety and investigating railroad accidents can, consist-

ently with the Fourth Amendment, establish by regula-

tion a program under which operating railroad employ-

ees are subject to warrantless alcohol and drug tests

following their involvement in specified accidents or

“human factor” rule violations?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED ...................... shkabinhasunpemetanens

TABLE OF AUTHORITIES ~.22000....0..2...ccceececeeeeeeeee

ARGUMENT ..........0.20..2..e.... Saliataablidbiebiniiinadiincteseece

I. THE FRA’S REGULATIONS SATISFY THE

FOURTH AMENDMENT’S “REASONABLE-

NESS” REQUIREMENT .......0... eee

II.

A.

The FRA’s Regulations Rest Upon Compel-

ling Interests of Public Safety Which Are

Not Overcome By Countervailing Private

aoa cessanincasoccseces Silicecadeene

The FRA’s Regulations Fall Within the “Ad-

ministrative Search” Exception to the

Fourth Amendment’s Probable Cause and

Warrant Requirements ....................................

. Cause Requirements Incorporated Into the

Regulations Satisfy the Fourth Amendment

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

NO FOURTH AMENDMENT INTERESTS

ARE IMPLICATED HERE BECAUSE THE

FRA’S REGULATIONS DO NOT INVOLVE A

“SEARCH OR SEIZURE” .......0.000..........--.-

eaten retnencshotencecencesessssecensesconsescceces

(iii)

13

16

19

21

iv

TABLE OF AUTHORITIES

CASES: Page

Brotherhood of Locom«tive Engineers v. Burling-

ton Northern Rai, v2d, 838 F.2d 1087 (9th Cir.

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

1, 1988) - <b. 3

Colonnade Catering Core. v. “United ‘States, 397

U.S. 72 (1970) ...... snbstetndianinieiinnciniiainsmailediue 13

Delaware v. Prouse, 440 U.S. 648 (1979) —.......... 10, 18

Donovan v. Dewey, 452 U.S. 594 (1981) —.......9-10, 13, 14

Griffin v. Wisconsin, 107 S. Ct. 3164 (1987) -........ 18

INS v. Delgado, 166 U.S. 210 (1984) 2.0... 20

Michigan v. Chesternut, 108 S. Ct. 1975 (1988) 20

Michigan v. Clifford, 464 U.S. 287 (1984) —........... 17

Michigan v. Tyler, 436 U.S. 499 (1978) ................. 17

New Jersey v. T.L.0., 469 U.S. 325 (1985) ........-... 7,12

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

O’Connor v. Ortega, 107 S. Ct. 1492 (1987) .....10, 11-12

Schmerber v. California, 384 U.S. 757 (1966) esis 19

Terry v. Ohio, 392 U.S. 1 (1968) ......................... 17, 20

United States v. Biswell, 406 U.S. 311 (1972) .... 13

United States v. Jacobsen, 166 U.S. 109 (1984) .. 11

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

RETEIIED . accsncosssenecenuensedsaneneniapensentincctaaaieianetinte aati 10, 11, 20

United States v. Mendenhall, A446 U.S. 544 (1980).. 18-19,

20

United States v. Villamonte-Marquez, 462 U.S..579

REID nnserscnesesinccscdassisaccessnsineisasingtinbiatibaadinbistenserennie 20

Wyman v. James, 400 U.S. 309 (1971) 6, 20

STATUTES:

Hours of Service Act, 45 U.S.C. §§ 61 ef seq. —...... 4

Railway Labor Act, 45 U.S.C. §§ 151 ef seq. ......... 13

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

seq. Te ROE TREE CATT = EN EET Vink oe ONES TO 15

Rail Safety Improvement Act of 1988, P. L. 100-342

OS Ee RNa

REGULATORY MATERIALS:

49 C.F.R. Part 217 (1987) —..... ss Anieiaeeschisiel cee ae 14

GD C.F te. FORCED CRG Pes srecccrcccnccseccvccsccevesessnsosonce 14

Vv

TABLE OF AUTHORITIES—Continued

Page

49 C.F.R. §§ 219.1 et seq. (1987) ..........0.0000 eee passim

T_T 14

49 Fed. Reg. 24,252 (June 12, 1984) _..... 17

50 Fed. Reg. 31,508 (August 2,1985) 4,8, 15, 17, 18

MISCELLANEOUS:

Angarola, Protect Safety, Not Drug Abuse, Amer-

ican Bar Association Journal 35 (August, 1986). 8

i 8

Comment, Behind the Hysteria of Compulsory

Drug Screening in Employment: Urinalysis Can

Be a Legitimate Tool For Helping Resolve the

Nation’s Drug Problem if Competing Interests

of the Employer and Employee are Equitably

Balanced, 25 Duq. L. Rev. 597 (1987) 0.000000... 7

Comment, “Drug Testing of Government Employ-

ees Should Not Be a Matter of Fourth Amend-

ment Concern” Cries a Lone Voice in a Wilder-

ness of Opposition, 1987 B.Y.U. L. Rev. 1239... 7,19

Comment, Random Drug Testing of Government

Employees: A Constitutional Procedure, 54 U.

Chi. L. Rev. 1335 (1987) ......... hidasdubbaiaiaeiaiemniidites 7

Developments in Drug and Alcohol Testing, 1988:

Stenographic Transcript of Hearings on S. 1041

Before the Committee on Commerce, Science, and

Transportation, 100th Cong., 2d Sess. 50-1

(Statement of John H. Riley, FRA Adminis-

trator) ....... Fo SET ISRO Onan ea pears Hee ICR I EN Pa 9

Los Angeles Times, June 24, 1988 ERE ERS Rage ee 9

Note, Employee Druq Testing Legislation: Re-

drawing the Battlelines in the War on Drugs,

> ee Me Oy ee 7

O’Connor, The Military Says “No,” Newsweek 26

a as auaeatoaiemacosinaiodieninen 9

United Press International ....................................... 8,9

IN. THE. _....

Supreme Court of the Uuited States

OCTOBER TERM, 1988

No. 87-1555

JAMES H. BURNLEY IV, SECRETARY,

DEPARTMENT OF TRANSPORTATION, et al.,

Petitioners,

Vv.

RAILWAY LABOR EXECUTIVES’ ASSOCIATION, et al.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICI CURIAE FOR

NATIONAL RAILROAD PASSENGER CORPORATION

AND ASSOCIATION OF AMERICAN RAILROADS

IN SUPPORT OF PETITIONER

This brief is filed on behalf of the National Railroad

Passenger Corporation and the Association of American

Railroads, as amici curiae, in support of the Petitioner.’

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

Clerk of this Court.

2

INTERESTS OF THE AMICI

The National Railroad Passenger Corporation (“Am-

trak”) manages the country’s intercity rail passenger

system. Amtrak operates trains in 43 states over a

24,000 mile network of track (most of which is owned

and also used by freight railroads) with a workforce of

some 22,000 employees. The Association of American

Railroads (“AAR”) is a trade association representing

the nation’s freight railroads, and has long studied and

represented the industry on such matters as railroad op-

erations, maintenance, and safety.

The Ninth Circuit’s decision below—invalidating Fed-

eral Railroad Administration regulations which estab-

lished a carefully focused program of alcohol and drug

testing of railroad employees involved in certain acci-

dents and human factor rule violations—is of grave con-

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

the present litigation has chilled implementation of the

regulations, and by extension, slowed efforts by some

railroads to promote additional measures to further cur-

tail aleohol and drug use within the industry. Yet alco-

hol and drug-related accidents continue to occur, some

involving passenger fatalities, many involving employee

fatalities, and some imperiling entire communities by

release of hazardous cargos.

s responsible employers, passenger carriers, and in-

dus spokesmen, amici support all reasonable plans to

prevent these tragedies. In adopting its regulations af-

ter a\rulemaking proceeding of more than two years’

duration, which was itself preceded by several years of

analysis\and discussion, the FRA determined that industry-

wide toxicological testing is an essential step in dealing

with the current substance abuse problem.

The FRA regulations provide a significant tool for

identifying ployees who use alcohol or drugs while

performing functions associated with train operations.

By holding the regulations invalid in this case, the

Ninth Circuit has seriously impaired efforts to prevent

many avoidable fatalities, injuries, and much property

damage in the railroad industry.* Amici thus have a di-

rect and immediate interest in the outcome of this case.

STATEMENT

Acting pursuant to its statutory role of overseeing

railroad safety, the Federal Railroad Administration

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

aleohol and drug use by railroad personnel is a proven

cause of a significant number of recent, avoidable rail-

road accidents and fatalities. To address this problem the

FRA ultimately concluded that an-alcohol and drug test-

ing program covering a limited number of railroad em-

ployees actually responsible for the movement of rail

traffic would be the most effective first step. Such a

program would achieve the agency’s desired objectives

of insuring public safety by (1) increasing industry

awareness of the correlation between accidents and al-

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

abuse, (3) detecting and removing from service individ-

uals whose use of alcoho! or drugs presents an immediate

safety risk, and (4) obtaining needed information on

2 Railroad companies operating in the Ninth Circuit find them-

selves particularly disabled from addressing substance abuse by

employees. Not only has the Court of Appeals there invalidated

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

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

held that its Fourth Amendment analysis is determinative of the

contractual expectations of parties to pre-existing collective bar-

gaining agreements, thus effectively prohibiting railroads from

instituting substance abuse programs independently. Brotherhood

of Locomotive Engineers v. Burlington Northern Railroad, 838 F.2d

1087 (9th Cir. 1988), petition for cert. filed, No. 87-1631 (April 1,

1988). That case involves the same critical public safety concerns

raised here, but presents distinct legal issues regarding imple-

mentation of drug use testing by a private employer in the context

of a collective bargaining relationship.

4

which to base further-reguiatory efforts* The reguia-

tions, applying almost exclusively to those railroad em-

ployees whom Congress determined in the Hours of Serv-

ice Act to be performing service connected with the move-

ment of trains, see 45 U.S.C. §61(b) (2), 49 C.F.R.

§$ 219.31d), (e), were promulgated on August 2, 1985.

Part C of the regulations mandates prompt testing

(by medical analysis of blood and urine samples) of

Hours of Service employees involved in any of the fol-

lowing: (i) any train accident resulting in either a

fatality, a release of a hazardous material (if accom-

panied by an evacuation or a reportable injury), 01 dam-

age to railroad property of $500,000 or more; (ii) a col-

lision resulting in a reportable injury or damage to rail-

road property of $50,000 or more; or (iii) a “train in-

cident that involves a fatality to any on-duty railroad

employee.” 49 C.F.R. § 219.201/a).

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

quire, prompt testing (by analysis of urine and breath

samples! of Hours of Service employees who are (i)

directly involved in reportable accidents or incidents and

are reasonably suspected by supervisors to have contrib-

uted to the esuse or severity of those accidents or inci-

dents; or (ii! directly involved in specific human error *

operating rule violations. 49 C.F.R. § 219.301.°

% See, e.g., 50 Fed. Reg. 31,508, 31,540 (August 2, 1985).

-The FRA notice announcing promulgation of the regulations

deleribes in layman's terms the operating violations that are

covered, and explains that each of these particular violations is

“an objective event and a clear indication of a material deviation

from safe practice suggesting the real possibility that the employee

is not fit.” 50 Fed. Reg. at 31,553.

‘Part D also permits testing of employees whom supervisors

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

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

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

discussed here.

5

Noting that it had “no urisdiction to terminate em-

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

generally left the disciplinary consequences of positive

test results to be determined by the employing railroad.

It imposed as the only federal sanciion a requirement

that employees refusing to provide blood and urine sam-

ples under the mandatory (Part C) testing program be

disqualified for nine months from Hours of Service work.

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

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

C.F.R. § 218.11(e). Hours of Service employees employed

on and after February 10, 1986 were ‘deemed to have

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

The Railway Labor Executives’ Association and cer.

tain labor organizations brought this action to enjoin th»

FRA’s testing program, relying, in relevant part, on the

Fourth Amendment.

The Proceedings Below

The District Court for the Northern District of Cali-

fornia upheld the constitutionality of the challenged regu-

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

court noted that the regulations serve compelling govern-

mental purposes:

. . . the government certainly has a valid public

and governmental interest in the promotion of safety

and railway safety, safety for employees, and safety

for the general public that is involved with the

transportation. It’s also obvious from the length of

time and the detail in which the regulations have

gone that the government has made a sincere attempt

to gath[{er| together information and do some balanc-

ing of interests on its own.

Appendix B to Petition, at 52a.

A divided panel of the Court of Appeals for the Ninth

Circuit reversed. The Secretary of Transportation sought

review here, and certiorari was granted on June 6, 1988.

6

SUMMARY OF ARGUMENT

1. The FRA’s regulatory alcohol and drug testing pro-

gram is reasonable under any construction of the Fourth

Amendment. The public interest in implementation of the

regulations is compelling, in light of the risk to safety

posed by train operators who abuse alcohol or drugs, the

history of accidents related to substance abuse in the

industry, and the need to prevent such tragedies in the

future. Employee privacy interests are not unconstitu-

tionally impaired, in view of the compelling governmental

purpose underlying the regulations, extensive notice to

affected employees, the lack of any intrusion upon “pri-

vate” information other than illegal or wrongful drug or

alcohol use, the loss of privacy which any employment

relationship entails, and the lack of any physical compul-

sion. This Court’s opinions regarding administrative

searches, searches in the exigent circumstances posed by

a safety investigation, and intrusions based upon non-

individualized determinations of reasonable suspicion,

fully support the conclusion that the FRA’s regulations

are consistent with the Fourth Amendment.

2. The Fourth Amendment proscribes arbitrary

searches or seizures. Since the FRA regulations forbid

forced administration of tests, 10 search or seizure is

involved, despite the adverse employment-related conse-

quences which may flow from a refusal to undergo test-

ing. Wyman v. James, 400 U.S. 309 (1971).

7

ARGUMENT

I. THE FRA’S REGULATIONS SATISFY THE

FOURTH AMENDMENT’S “REASONABLENESS”

REQUIREMENT.

It is sometimes too widely assumed that the Fourth

Amendment bars all searches and seizures. But, of

course, its bar, by its terms, extends only to “unreason-

able searches and seizures.” Under the facts of this case,

the provisions of the FRA regulations are not “unreason-

able.”

A. The FRA’s Regulations Rest Upon Compelling In-

terests of Public Safety Which Are Not Overcome

By Countervailing Private Concerns.

Any determination of Fourth Amendment reasonable-

ness requires a balancing of the “ ‘need to search against

the invasion which the search entails.’” New Jersey v.

T.L.O., 469 U.S. 325, 337 (1985). This case is viewed

fairly only in the context of the great disparity that

exists between the compelling public interests which the

FRA’s regulations serve, and the limited private intru-

sions which they cause.°

Quite simply, the FRA regulations serve to remove

active substance abusers from responsibilities for oper-

ating trains, to deter other operators from engaging in

drug or alcohol abuse, and to protect public safety by

6 For relevant discussions of the legal implications of drug

testing at the workplace, see Comment, “Drug Testing of Govern-

ment Employees Should Not Be a Matter of Fourth Amendment

Concern” Cries a Lone Voice in a Wilderness of Opposition, 1987

B.Y.U. L. Rev. 1239; Note, Employee Drug Testing Legislation:

Redrawing the Battlelines in the War on Drugs, 39 Stan. L. Rev.

1453 (1987); Comment, Random Drug Testing of Government Em-

ployees: A Constitutional Procedure, 54 U. Chi. L. Rev. 1835 (1987) ;

Comment, Behind the Hysteria of Compulsory Drug Screening in

Employment: Urinalysis Can Be a Legitimate Tool For Helping

Resolve the Nation's Drug Problem if Competing Interests of the

Employer and Employee are Equitably Balanced, 25 Duq. L. Rev.

597 (1987).

8

facilitating investigations of railroad accidents. As is

true of a handful of other industries (e.g., nuclear power,

air traffic control, trucking, aviation), the threat to pub-

lie safety posed by Hours of Service employees whose

judgment or senses are clouded by alcohol or drugs is

plain. Subs «ace abusers who operate trains endanger

themselves: ey also endanger the lives and property of

fellow empluyees, rail passengers, railroad companies, and

indeed—as a result of toxic cargos—entire communities.’

Other means of protecting the public are unworkable:

railroad employees often must operate in far-flung loca-

tions and around the clock with little direct supervision,

and, in any event, drug or alcohol ingestion sufficient to

affect operational performance adversely frequently can-

not be detected by even skilled observers.* Toxicological

testing, in contrast, does work.’

7 Derailments of trains in at least five states during 1987 caused

evacuation of over 22,200 persons from their homes. See Associated

Press, December 13, 1987, July 22, 1987, May 6, 1987; United Press

Int’ national, February 2, 1987, January 6, 1987. A single derail-

ment in Crofton, Kentucky recently required evacuation of 15,000

residents. See Associated Press, June 24, 1988.

§ See 50 Fed. Reg. 31,508, 31,526, 31,527, 31,536 (August 2, 1985).

® In 1981 Georgia Power Company employees suffered 5.4 in-

juries per 200,000 man-hours at its Vogtle nuclear power

plant construction site. In 1985 that number was fewer than

5 injuries per 200,000 man-hours.

In 1985 the Southern Pacific Railway reported a 71 percent

drop in on-the-job accidents and injuries due to human-related

error as compared to the previous year.

In 1982 the U.S. Navy identified 48 percent of the young en-

listed men working for it as having used drugs for non-medical

purposes. By last year that figure had dropped to 4 percent.

The common element here is the employer’s use of drug testing

as part of a comprehensive health and safety program aimed

at identifying and treating drug abusers.

Angarola, Protect Safety, Not Drug Abuse, American Bar Associ-

ation Journal 35 (August, 1986).

Following the Department of Defense’s institution in 1982 of

mandatory testing for every branch of the service, there was a 75

9

The public interest in toxicological testing of railroad

employees entrusted with safety-sensitive responsibilities

is heightened by the fact that, as the mounting number

of drug and alcohol-related accidents confirms, a serious

substance abuse problem exists within the industry. The

most tragic accident in recent memory, which resulted in

16 deaths and scores of injuries, occurred near Chase,

Maryland on January 4, 1987. The two crewmen respon-

sible for that accident tested positive for marijuana, and

one had traces of the hallucinogenic drug PCP in his

urine. Unfortunately, the Chase, Maryland accident was

no anomaly: since 1980, sixty-five percent of railroad

accidents involving loss of life have been alcohol or drug

related.’° In the last nineteen months alone there have

been at least 51 major train accidents, involving 31

deaths, 375 injuries, and tens of millions of dollars in

property damages, in which one or more railroad em-

ployees tested positive for drugs.'' Over five percent of

railroad employees undergoing post-accident testing test

positive.”

Thus, the case for toxicological testing of railroad

employees entrusted with operation of trains is a com-

pelling one.“ Opposing it are the asserted privacy inter-

percent decrease in the number of personnel testing positive for

marijuana, the most popular drug used. Use of other drugs de-

clined as well. O’Connor, The Military Says “No,” Newsweek 26

(Nov. 20, 1986).

10 United Press International, July 6, 1988 (quoting Atlanta

Journal interview with John H. Riley, FRA Administrator).

11 See Los Angeles Times, June 24, 1988 (interview with John

H. Riley, FRA Administrator) ; Developments in Drug and Alcohol

Testing, 1988: Stenographic Transcript of Hearings on S. 1041

Before the Committee on Commerce, Science, and Transportation,

100th Cong., 2d Sess. 50-1 (Statement of John H. Riley, FRA

Administrator).

12 Developments in Drug and Alcohol Testing, 1988, supra n.11, at

50-i (Statement of John H. Riley, FRA Administrator).

13 Compare, e.g., Donovan v. Dewey, 452 U.S. 594, 602 (1981)

(substantial federal interest in improving the health and safety

10

ests of Hours of Service employees subject to testing. But

Fourth Amendment rights “are implicated only if the

(challenged conduct] infringe[s] ‘an expectation of pri-

vacy that society is prepared to consider reasonable.’ ”

O’Connor v. Ortega, 107 S.Ct. 1°92, 1497 (1987) (plural-

ity opinion). When the expectations of privacy asserted

here are considered in the context of the public interest in

saving lives, property, and communities, it is evident that

those expectations must be quite limited.

For one thing, beginning well before the effective date

of the regulations at issue, affected employees have had

presumed and actual notice that they would be subject to

testing. Union representatives participated extensively in

the FRA’s notice and comment proceeding, meetings have

been held to explain the regulations to affected employ-

ees, and Part C testing has been heavily featured in news

stories in connection with rail disasters. Employers ad-

ministering Part D testing are required to give employees

detailed notice of the provisions of that Part. See 49

C.F.R. § 219.309(b). Furthermore, the regulations as

promulgated gave affected employees advance notice that

the testing program would be implemented, and that their

consent would be a condition of employment. 49 C.F.R.

$$ 219.11l(a), 219.201(a). At this late date Hours of

Service employees can hardiy claim surprise when, fol-

lowing their involvement in significant train accidents or

rule violations strongly suggestive of operator error, they

are approached to undergo toxicological testing. Cf.

conditions in underground and surface mines supports warrantless

administrative searches of mines); United States v. Martinez-

Fuerte, 428 U.S. 543 (1976) (where a “reasonable suspicion”

standard for border checkpoint stops would “largely eliminate any

deterrent to the conduct of well-disguised smuggling operations,”

the public interest in conduct of such “seizures” is substantial for

Fourth Amendment purposes); Delaware v. Prouse, 440 U.S. 648,

658 (1979) (“We agree that the States have a vital interest in

ensuring that only those qualified to do so are permitted to operate

motor vehicles”).

11

United States v. Martinez-Fuerte, 428 U.S. 5438, 559

(1976) (controlling factor in upholding the constitution-

ality of warrantless, routine checkpoint stops in border

areas is the limited nature of the subjective intrusion

occasioned ) .

Second, the testing does not yield “private” informa-

tion. The regulations do net authorize that samples be

tested for any characteristic other than alcohol and drug

abuse, nor do they authorize release to railroads by the

independent medical facilities conducting the tests of

medical information (other than the presence of alcohol

or drugs or their metabolites) derived from the tests.

The only personal information divulged to railroads is

alcohol and drug use—information in which employees

operating trains have no reasonable expectation of pri-

vacy. United States v. Jacobsen, 466 U.S. 109, 122-4.

(1984).

Third, the tests here are administered in the context of

the employment relationship, not in furtherance of a

criminal investigation. FRA does not require that results

be shared with law enforcement authorities; indeed,

FRA states that “it is the policy of FA to request the

Attorney General to oppose production of the sample

to a party in litigation” except under a subpoena or order.

49 C.F.R. § 219.301. Privacy expectations of employees

must be “assessed in the context of the employment rela-

tion”; and where those expectations ar impacted by

actual “practices and procedures, or by legitimate regu-

lation,” and are intruded upon for work-related, as

opposed to criminal investigatory, purposes, they lose

some or all of their constitutional significance. O’Connor

14 In this connection, note that most, if not all, railroads have

for years enforced “Rule G,” an industry safety rule which pro-

hibits railroad employees from using alcohol or drugs while on

duty, from possessing these substances while on company property,

and from reporting for duty while under the influence of alcohol

or drugs.

12

v. Ortega, 107 S.Ct. at 1501 (plurality opinion) .” -Cf.

New Jersey v. T.L.0., 469 U.S. 325, 348-50 (1985)

(Powell, J., concurring) (students have a lesser expecta-

tion of privacy than the population at large, given the

degree of familiarity between and among students and

teachers, teachers’ necessarily “unparalleled” authority

over them, and the degree of exposure of the public school

setting to supervision or oversight by the community,

parents, and fellow students).

For these reasons, and because the regulations do not

permit forced administration of tests, see infra, pp. 19-20,

the employee privacy interests involved here are, at most,

a slight basis on which to ground a Fourth Amendment

challenge to the crucial public safety regulations at issue.

Even if those privacy interests are constitutionally cog-

nizable, Respondents’ Fourth Amendment challenge fails

15 In O’Connor, the plurality reserved the issue of the “proper

Fourth Amendment analysis for drug and alcohol testing of em-

ployees.” The plurality’s discussion of the “workplace context,”

moreover, concerned the expectations of privacy that pertain to

“those areas and items that are related to work and within the em-

ployer’s control.” 107 S.Ct. at 1497. But cf. New Jersey v. T.L.O.,

469 U.S. 325, 337-43 (1985) (applying a similar relationship-based

analysis to Fourth Amendment issues raised by a “search [by school

authorities] of a child’s person or of a closed purse or other bag

cerried on her person”) (emphasis added).

O’Connor is useful on the present facts, however, in its implicit

recognition that the employment relation necessarily entails some

intrusions on privacy and personal autonomy that would not be

expected or tolerated by private citizens in their personal lives.

The degree to which expectations of privacy are reduced may very

well depend to some extent on the nature of the job, and there may

be some intrusions——-c.g., use of physical force-—-which would vio-

late legitimate exnectations of privacy in most or all circumstances.

This case, however, does not involve physical compulsion, see infra,

pp. 19-20, nor does it involve requirements or standards of con-

duct that are extraordinary when considered in the light of em-

ployee responsibilities.

13

‘under the opinions of this Court giving content to the

Amendment’s “reasonableness” standard.

B. The FRA’s Regulations Fall Within the “Adminis-

trative Search” Exception to the Fourth Amend-

ment’s Probable Cause and Warrant Requirements.

The FRA’s regulations fit easily within the guidance

of this Court’s “administrative search” cases. Such cases

hold that warrantless searches, unsupported by tradi-

tional probable cause determinations, of premises of

heavily regulated businesses are reasonable when per-

formed without force and pursuant to appropriate stand-

ards. See New York v. Burger, 107 S.Ct. 2636 (1987) ;

Donovan v. Dewey, 452 U.S. 594 (1981); United States

v. Biswell, 406 U.S. 311 (1972); Colonnade Catering

Corp. v. United States, 397 U.S. 72 (1970). These cases,

which emphasize the necessity for warrantless searches in

order to meet the reasonable needs of public concern, turn

on the fact that proprietors in such industries are aware

of the extensive regulation to which they are subject and

accordingly have no reasonable expectation of privacy.

Railroads were among the first modes of transportation

to be extensively regulated. Although in recent years

railroads have experienced some rate deregulation, gov-

ernment scrutiny remains close, particularly. with re-

spect to two areas that are vital in the present context:

labor (see, e.g., the Railway Labor Act, codified as

amended at 45 U.S.C. $§ 151 et seq.) and safety (see,

e.g., the Federal Railroad Safety Act, codified as amended

at 45 U.S.C. §§ 431 et seg.). Moreover, the Secretary of

Transportation is now empowered to discipline railway

workers for willful safety violations, and is charged with

developing and implementing a licensing or certification

program for locomotive engineers. See Rail Safety Im-

provement Act of 1988, P.L. 100-342, §§ 3-4, 13-17, 21-22

(June 22, 1988). Railroad employees are thus extensively

regulated and subject to properly delineated administra-

14

tive.searches, regardless of the presence or absence of

warrants or probable cause.'®

Administrative searches are valid, despite the absence

of warrants or individualized suspicion, where (1)

“there [is] a substantial government interest that in-

forms the regulatory scheme pursuant to which the in-

16 The Court of Appeals held that while railroads are heavily

regulated, railroad employees are not. Passage on June 22, 1988

by Congress of the Rail Safety Improvement Act of 1988, which

supplies the precise regulatory provisions identified by the Court

of Appeals as lacking, has since nullified the distinction. See Dono-

van v. Dewey, 452 U.S. 594, 606 (1981):

[I]t is the pervasiveness and regularity of the federal regula-

tion that ultimately determines whether a warrant is necessary

to render an inspection program reasonable under the Fourth

Amendment. . . . Of course, the duration of a particular regula-

tory scheme will often be an important factor in determining

whether it is sufficiently pervasive to make the imposition of a

warrant requirement unnecessary. But if the length of regula-

tion were the only criterion, absurd results would occur. Under

appellees’ view, new or emerging industries, including ones

such as the nuclear power industry that pose enormous poten-

tial safety and health problems, could never be subject to

warrantless searches even under the most carefully structured

inspection program simply because of the recent vintage of

regulation.

Drug abuse is a relatively new phenomenon, as is toxicological

testing and the increase in the frequency with which hazardous

cargos are carried.

Even if the regulatory changes made by the Rail Safety Improve-

ment Act are disregarded, the Court of Appeals’ reasoning was un-

sound. The penadties and burdens of the administrative schemes

in the heavily refulated business cases ultimately fell on individ-

uals, not on companies. Moreover, railroad employees in fact have

long been subject to extensive regulation. See, e.g., 49 C.F.R. Parts

217 (requiring instruction of employees on operating rules and

periodic testing of rule compliance); 218 (prescribing minimum

safety requirements for railroad operating rules and practices

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

plemented entirely by employees); and 220 (establishing minimum

requirements governing employees’ use of radio communications in

connection with railroad operations).

15

‘spection is made”; (2) warrantless inspections are neces-

sary to the regulatory scheme; and (3) the inspection pro-

gram, “in terms of the certainty and regularity of its

application, [provides] a constitutionally adequate sub-

stitute for a warrant” (i.e., the regulations must advise

that the search is being made pursuant to the law and

in accordance with a properly defined scope, and must

set appropriate limits on the time and place of the

search). New York v. Burger, 107 S.Ct. at 2644."

The governmental interest served by the FRA’s regula-

tions—public safety—could hardly be more compelling,

as discussed above. In addition, testing must be done

promptly after an accident or rule violation, if it is to

serve its best purpose,"* and given the time constraints,

confusion following accidents, and lack of familiarity of

railroad personnel with the court systems in the many

locations where accidents or violations may occur, a war-

rant requirement is neither realistic nor feasible, nor

really useful in protecting Fourth Amendment values.

Perhaps most important, the FRA regulations do pro-

' vide a “constitutionally adequate substitute for a war-

rant.” The circumstances in which testing ‘© required or

authorized are carefully defined in almost totally ob-

jective terms: no employee will be tested under the regu-

lations who has not either (1) been directly involved in

one of the specified train accidents or safety rule viola-

17The Burger opinion notes that “an expectation of privacy in

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

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

2674. The testing authorized here is administered to individuals

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

citizens.

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

culty associated with estimating previous alcohol and drug levels

from specimens obtained some time later.” 50 Fed. Reg. at 51,554.

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

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

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

:

‘suspected by a supervisor to have contributed to the

cause or severity of) a reportable a¢cident or incident that

results in injury, death, occupational] illness, or damage

to railroad property exceeding $5,2 The regulations

explicitly require that property damage estimates be made

in good faith. 49 C.F.R. § 219.201( In addition,

all blood and urine samples are to be collected at inde-

pendent medical facilities by medical personnel or tech-

nicians. 49 C.F.R. §§ 219.203(c), 210.305(a). Railroads

failing to compiy with any part of the regulations are

subject te civil penalties. 49 C.F.R. § 219.9. e testing

scheme is thus certain and regular in its application;

railroad officials have limited discretion in executing it,

as employees well know."®

The administrative search cases thus justify the FRA’s

regulations.

C. Cause Requirements Incorporated Into the Regula-

tions Satisfy the tourth Amendment in the Circum.

stances of This Case.

While conceding that the Constitution does not require

warrants in the context of this case, the Court of Appeals

'’ The Court of Appeals concluded that the regulations are over-

broad in scope because urine tests reveal drug usage, not impair-

ment. In so holding, the court did not discuss the blood test alterna-

tive prescribed in the regulations. In any event, even assuming

that testing cannot establish current impairment, the court did not

address why persons who are sufficiently heedless of criminal laws

and of their own wellbeing to take drugs should be presumed fit for

duty. Surely it is reasonable for the FRA and railroads to conclude

that such employees may have shown on occasion similar disregard ;

for work-place rules and public safety. Nor did the court consider

the fact that—as the empirical evidence regarding effects of drug

testing programs shows, supra, n.9-—involvement of a drug user in an

accident or operator-error rule violation in itself is evidence bear-

ing on the likelihood of impairment. Finally, the court did not ex-

plain why an employee’s “right” to take illegal drugs in the privacy

of his own home deserves precedence as a constitutional matter over

the compelling interests of public safety which the FRA here seeks

to advance.

17

concluded that the cupiatesy scheme was invalid because

it did not premise test administration ° on “individualized

suspicion.” Whatever the merits of such analysis where

a random or mass testing program is at issue, the court

evidently failed to realize that the FRA regulations here

contain implicit, objective cause requirements that satisfy

Fourth Amendment concerns even apart from > any ap-

plicability of the administrative search cases.

Specifically, the FRA deliberately crafted its iets

tions to require testing only following those accidents or

rule violations which the FRA’s experience in accident

investigations showed to be either (1) difficult to in-

vestigate. (2) of significant public interest, or (3) his-

torically attributable to operator error.” A legitimate

intention to deter unsafe conduct and to perform

safety investigations in the public interest thus is

the sole motivating force underlying the regulatory classi-

fications. In the context of the FRA’s findings that an

alcohol and drug problem exists in the railroad industry

and that this problem has caused a significant number of

serious accidents," the fact that body fluids must be

collected promptly if they are to be of value to investi-

gators creates an exigency which fully justifies the in-

trusions these regulations entail. Michigan v. Clifford,

464 U.S. 287 (1984); Michigan v. Tyler, 436 U.S. 499

(1978). No “unreasonable” search or seizure is required.

In addition, the intrusions here result not from mere

“inarticulate hunches,” see Terry v. Ohio, 392 U.S. 1, 22

(1968), but instead from an “articulable basis amounting

to a reasonable suspicion” that drug or alcohol abuse is

involved. To repeat, drugs and alcohol have been shown

to contribute to a significant number of serious rail ac-

cidents. Given this fact, involvement by operating per-

sonnel in such accidents (or in safety violations which

2 See, e.g., 50 Fed. Reg. at 31,542.

21 See, e.g., 49 Fed. Reg. 24,252, 24,254, 24,265 (June 12, 1984).

18

are likely to cause such accidents) in itself supports a

reasonable suspicion of substance abuse. Delaware v.

Prouse, 440 U.S. 648, 659 (1979). Adding to the weight

of this suspicion, the FRA has excluded from its descrip-

tion of events triggering the testing requirements those

accidents not normally attributable to operator error.”

Thus, the FRA regulations express, in objective terms,

sufficient grounds in the circumstances of this case for a

constitutionally-adequate suspicion that the employees

tested will be found to have improperly used alcohol or

drugs.

At bottom, the Court of Appeals’ rejection of these

regulations is grounded not on a finding that they operate

arbitrarily, but instead on the fact that they are ob-

jective, rather than subjective. This reasoning is ironic,

when viewed in terms of Fourth Amendment values;

and is, in any event, not supported by this Court’s deci-

sions. See, e.g., Griffin v. Wisconsin, 107 S. Ct. 3164

(1987) (“The search of Griffin’s residence was ‘reason-

able’ within the meaning of the Fourth Amendment be-

cause it was conducted pursuant to a valid regulation

governing probationers,” even though the search was

based on facts establishing only the “likelihood” that

the suspected inculpatory items would be found); Dela-

ware v. Prouse, 440 U.S. 648, 661 (1979) (requiring

either an “appropriate factual basis for suspicion directed

at a particular automobile [or] some other substantial

and obiective standard or rule to govern the exercise of

discretion”); United States v. Mendenhall, 446 U.S. 544

(1980) (Powell, J. concurring) (‘drug courier profile,

applied by experienced officer, was a “well-planned, and

effective Federal law enforcement program” satisfying

*2 Note, for example, that the FRA expressly exempted from the

testing provisions employees involved in rail/highway grade cross-

ing collisions, 49 C.F.R. § 219.201(b), observing that in most cases,

such collisions are not caused by errors on the part of railroad

personnel. See 50 Fed. Reg. at 31,543.

a

19

“reasonable and articulable suspicion of criminal activity”

standard). The FRA’s regulations satisfy the Fourth

Amendment’s test of reasonableness.

Il. NO FOURTH AMENDMENT INTERESTS ARE IM-

PLICATED HERE BECAUSE THE FRA’S REGU-

LATIONS DO NOT INVOLVE A “SEARCH OR

SEIZURE.”

Relying on Schmerber v. California, 384 U.S. 757

(1966), the Court of Appeals concluded that tests con-

ducted pursuant to the FRA regulations effect a “search

and seizure.” In so holding, the court ignored a crucial

distinction between this case and Schmerber. Schmerber

involved administration of a blood test ty force or threat

of force; the FRA regulations, in cuntrast, expressly

prohibit forced administration of tests.

Indeed, the only consequence of a refusal to undergo

testing is an alteration of employment status.“ The

regulations require that an employee refusing to undergo

Part C testing be disqualified for nine months from oper-

ating trains. Implicitly, the regulations also permit the

employing railroad to make whatever other adjustments

to employment status that the railroad may deem neces-

sary and not inconsistent with legal obligations. The latter

23 As noted supra, p. 11, the tests mandated here reveal drug or

alcohol use—information devoid of constitutional protection. Re-

spondents’ claim that a search and seizure is involved therefore must

rest on the administration of the tests, rather than on the informa-

tion the tests yield. Cf. Comment, “Drug Testing of Government

Employees Should Not Be a Matter of Fourth Amendment Concern” .

Cries a Lone Voice in a Wilderness of Opposition, 1987 B.Y.U. L.

Rev. 1239, 1245-8 (noting that the Fourth Amendment analysis in

Schmerber did not rest upon the physiological secrets which a blood

test theoretically might reveal, and contending that the Bank

Secrecy Act of 1970, held in California Bankers Association v.

Schultz, 410 U.S. 19 (1973), not to implicate the Fourth Amend-

ment, “certainly has the potential for revealing significantly more

about an individual's private life than urine testing’).

20

decisions will be made in the context of the procedures and

requirements which Congress and the courts have deemed

appropriate to protect the employment interests of rail-

road labor. While uncomfortable to the employee, these

consequences in no way impinge upon his physical liberty.

This Court rightly refuses to engage in hypertechnical

constructions of the words “search and seizure.” Terry

v. Ohio, 392 U.S. 1, 17-8 n.15 (1968). This does not

mean, however, that those terms are devoid of content.

The Court construes the terms according to their ordinary

meaning, which contains, at a minimum, a requirement

of physical compulsion. See, e.g., Terry v. Ohio, 392 U.S.

at 19 n. 16 (“Obviously, not all personal intercourse be-

tween policemen and citizens involves ‘seizures’ of persons.

Only when the officer, by means of force or show of author-

ity, has in some way restrained the liberty of a citizen

may we conclude that a ‘seizure’ has occurred”). Accord,

Michigan v. Chesternut, 108 S.Ct. 1975 (1988); INS v.

Delgado, 466 U.S. 210 (1984); United States v. Menden-

hall, 446 U.S. 544, 553 (1980). See also United States

v. Martinez-Fuerte, 428 U.S. 543, 558 (1976) (“neither

the vehicle nor its occupants are searched, and visual

inspection of the vehicle is limited to what can be seen

without a_ search’); United States v. Villamonte-

Marquez, 462 U.S. 579, 592 (1983) (brief encounter

involving boarding of a vessel, visiting of public areas

of the vessel and inspection of documents is not a search

of the vessel or of its occupants). Here, where both force

and the threat (objective or subjective) of force are lack-

ing, no Fourth Amendment search or seizure occurs.

Compare Wyman v. James, 400 U.S. 309, 317 (1971)

(where visitation by social worker “in itself is not forced

or compelled, [and] the beneficiary’s denial of permission

is not a criminal] act,” the visit is not a Fourth Amend-

ment search, even though it may have “both rehabilitative

and investigative” purposes, and even though benefits

cease if the visit is refused) .

Se a

ee

21

CONCLUSION

For the reasons set forth above and for the additional

reasons advanced in Petitioner’s brief, the FRA’s regu-

lations should be held to be fully consistent with the

Fourth Amendment, and the decision of the Court of

Appeals should be reversed.

Respectfully submitted,

Of Counsel: ERWIN N. GRISWOLD

HAROLD R. HENDERSON Counsel of Record

Vice President—Law SARAH W. PAYNE

FREDERICK C. OHLY JONES, Day, REAVIS & POGUE

Associate General Counsel 1450 G Street, N.W.

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

CORPORATION (202) 879-3898

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

Washington, D.C. 20001

J. Tuomas Twp

Vice President and General Counsel

ASSOCIATION OF AMERICAN RAILROADS

Law Department

50 F Street, N.W.

Washington, D.C. 20001

July, 1988