Petition for Writ of Certiorari — American Federation of Government Employees v. Skinner

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, et al.,

‘ Petitioners,

SAMUEL K. SKINNER,

Secretary of Transportation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

MARK ROTH

JOE GOLDBERG

80 F Street, N.W.

Washington, D.C. 20001

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

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

® Ete. 00

QUESTION PRESENTED

Does the Department of Transportation’s ‘Drug-Free

Departmental Workplace” program violate the Fourth

Amendment’s prohibition against unreasonable searches

and seizures, insofar as-that program requires thousands

of the Department’s employees, as a condition of their

continued employment, to submit to a permanent regime

of suspicionless, random, unannounced, repeated and

closely-monitored urine collection drug testing?

(i)

=

LIST OF PARTIES TO THE PROCEEDING

The petitioners in this proceeding, and in the proceed-

ings below, are the American Federation of Government

Employees, AFL-CIO, (“AFGE”), AFGE Local 3313,

AFGE Local 2814, Caleb Butler, and James Dawkins.

The respondent in this proceeding, and below, is Samuel

K. Skinner, Secretary of Transportation, in his official

capacity. There are no other parties.

TABLE OF CONTENTS

QUESTION PRESENTED ......................... Aaa CNEL ne

EELS Es SO ae

OPINIONS BELOW

ESE IC oe Be ces

CONSTITUTIONAL AND REGULATORY PROVI-

SIONS INVOLVED

STATEMENT OF THE CASE

A. Statement of Facts

REASONS FOR GRANTING THE WRIT

I. Government Programs Of Mandatory Drug

Testing On A Random, Unannounced And Re-

petitive Basis Work Intrusions Into Privacy

That Are Substantially Greater Than Those

In Skinner And von Raab And Thus Present

Important And Unresolved Fourth Amendment

UE EN Do a

II. The Courts Of Appeals—Including The Court

Below—Have Erroneously Assumed That Skin-

ner And von Raab Decided The Validity Of

Random, Unannounced And Repetitive Drug

Testing And They Are Thus Not Independently

Examining The Issue............................. at Aa Stat

SES EL ee

(iii)

17

iv

TABLE OF AUTHORITIES

CASES: Page

Guiney v. Roache, 873 F.2d 1557 (1st Cir. 1989),

cert. denied, U.S. —— (November 13,

REI RN Pern enn ed P25 Oe SUS Din Ce Meee SN 16-17

Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir.

1989), cert. denied sub nom. Bell v. Thornburgh,

USS. (January 22, 1990) ................... 6, 15, 16

National Treasury Employees Union v. von Raab,

USS. , 57 L.W. 4838 (March 21, 1989) .passim

New Jersey v. T.L.O., 469 U.S. 325 (1985) ............ 10

Rushton v. Nebraska Public Power District, 844

fe BR RR Recor ane 17

Skinner v. Railway Labor Executives’ Association,

—— USS. , 57 L.W. 4824 (March 21, 1989) passim

Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).. 16

Thompson v. Marsh, 884 F.2d 113 (4th Cir. 1989) .. 16

Transport Workers Union, Local 234 v. SEPTA,

Ft Ot Ge | eee eee 17

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

I ea simenane 14

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

CONSTITUTION:

I I sc iincneriniasbinebnigneniionnonamiictinaaions _.....passim

STATUTES:

I eeasuaniseniasaetutac nue tancel 2

MISCELLANEOUS:

Bureau of National Affairs, BNA National Report

on Substance Abuse (November 23, 1988) at 1..

Department of Transportation, Coast Guard, Pro-

grams for Chemical Drug and Alcohol Testing

of Commercial Vessel Personnel, 58 Fed. Reg.

47064 (November 21, 1988) ........000..00002 7

Department of Transportation, Drug-Free Work-

place Program Evaluation Report (September

“I

Vv

TABLE OF AUTHORITIES—Continued

Department of Transportation, Federal Aviation

Administration, Anti-Drug Program for Person-

nel Engaged in Specified Aviation Activities, 53

Fed. Reg. 47024 (November 21, 1988) _................

Department of Transportation, Federal Highway

Administration, Controlled Substance Testing,

53 Fed. Reg. 47134 (November 21, 1988) ...........

Department of Transportation, Federal Railroad

Administration, Random Drug _ Testings;

Amendments to Alcohol/Drug Regulations, 53

Fed. Reg. 47102 (November 21, 1988) ...............

Department of Transportation, Order 3910.1,

Drug-Free Departmental Workplace (June 29,

Page

TIDUIE D xsinnsssorsnsicnesiisiibsasinieatasgtahcaiemenieatamasnania aaa passim

Department of Transportation, Research and Spe-

cial Programs Administration, Control of Drug

Use in Natural Gas, Liquified Natural Gas and

Hazardous Liquid Pipeline Operations, 58 Fed.

Reg. 47084 (November 21, 1988) .........000.....0....

Department of Defense, Federal Acquisitions Reg-

ulation Supplement; Drug-Free Work Force, 53

Fed. Reg. 37763 (September 28, 1988), supple-

mented by Questions and Answers Prepared by

Defense Department on Drug Free Workplace

Regulations for Federal Contractors, BNA Daily

Tabor Report (April 10, 1989) ..........0.0000 2...

Department of Health and Human Services, Guide-

lines for Federal Workplace Drug Testing Pro-

grams, 53 Fed. Reg. 11970 (April 11, 1988)

fe Be = FRR ARN eee

Executive Order 12564, 51 Fed. Reg. 32889 (Sep-

i A Fee ee he Rouen Ue

Havermann, U.S. Details Plans For Drug Tests,

Washington Post (May 4, 1988) at Al ..............

Office of Workplace Initiative, National Institute

on Drug Abuse, Report to Congress: Federal

Agency Drug-Free Workplace Programs, Tier I

Agemeken CHEMTCR Te, TOD cacnccsceencencceccerstinccscsevneies

4,12

IN THE

Siytrenve Court of the United States

OCTOBER TERM, 1989

No.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

AFL-CIO, et al.,

; Petitioners,

SAMUEL K. SKINNER,

Secretary of Transportation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Petitioners, American Federation of Government Em-

ployees, et al., plaintiffs in the district court and appel-

lants in the court of appeals, respectfully petition this

Court to issue a writ of certiorari to the United States

Court of Appeals for the District of Columbia Circuit to

review the decision and judgment in AFGE v. Skinner,

885 F.2d 884 (D.C. Cir. No. 87-5417; September 8,

1989).

OPINIONS BELOW

The opinion of the Court of Appeals for the District of

Columbia Circuit is reported at 885 F.2d 884 and is

reprinted in the separate appendix to this petition (‘‘Pet.

App.) at la-28a. The memorandum and order of the

District Court for the District of Columbia is reported

at 670 F.Supp. 445 and is reprinted at Pet. App. 29a-

37a.

2

JURISDICTION

The judgment of the court of appeals was issued on

September 8, 1989. On November 28, 1989, the time for

filing a petition for a writ of certiorari was extended by

the Chief Justice to and including January 8, 1990. On

December 28, 1989, the time for filing a petition for a

writ of certiorart was further extended by the Chief

Justice to and including February 7, 1990. This Court

has jurisdiction over this matter pursuant to 28 U.S.C.

$ 1254/1).

CONSTITUTIONAL AND

REGULATORY PROVISIONS INVOLVED

The Fourth Amendment of the United States Constitu-

tion states as follows:

The right of the people to be secure in their per-

sons, houses, papers, and effects, against unreason-

able searches and seizures, shall not be violated, and

no warrants shall issue, but upon probable cause,

supported by Oath or affirmation and particularly

describing the place to be searched and the persons

or things to be scized. -

United States Department of Transportation (“DOT”)

Order 3910.1, entitled “Drug-Free Departmental Work-

place’ and dated June 29, 1987, is reprinted at Pet.

App. 38a-95a.

STATEMENT OF THE CASE

A. Statement of Facts

On September 15, 1986, then President Reagan signed

Executive Order 12564, 51 Fed. Reg. 32889 (September

17, 1986), which directs executive-branch agencies to

establish programs to test federal employees in “sensi-

tive positions” for the use of illegal drugs. The Execu-

tive Order does not specifically direct agencies to require

“random” or “unannounced” urine collection drug tests;

rather, that Order generally left the “criteria for [drug]

3

testing” and the “extent” of such testing up to the dis-

cretion of each agency’s head.

On June 29, 1987, pursuant to this Executive Order,

then-Secretary of Transportation Dole adopted DOT

Order 3910.1, a highly detailed plan mandating that the

DOT’s approximately 62,000 employees undergo various

forms of urine collection drug testing. Among the “types

of testing” mandated by Order 3910.1 is a requirement

of “random testing’ which applies to approximately

30,000 DOT employees, who, in the DOT’s view, are

“safety [or] security critical.” Pet. App. 52a.!

Pursuant to this random testing requirement, each of

these 30.000 DOT employees is subject to a new and

permanent regime of monitored urine collection drug

testing conducted on an entirely random, unannounced

and repetitive basis.» Any covered employee who does not

1DOT’s drug-testing program also requires a variety of other

“types of testing,’ which include: (1) “periodic testing,” under

which employees who are otherwise required to undergo periodic

medical exams must include a drug test in the exams; (2) “reason-

able suspicion testing,” under which employees can be tested when

management has reasonable cause to suspect use of illegal drugs;

(3) “pre-employment/pre-appointment testing,” under which appli-

cants to certain positions must be tested prior to beginning in those

positions; (4) “accident or unsafe practice testing,’”’ under which

employees must be tested whenever their behavior may have caused

an accident or safety violation; and (5) “follow-up testing,” under

which employees who have previously been temporarily removed

from their positions for illegal drug use must be tested after com-

pleting a rehabilitation program and returning to service. Pet.

App. 53a-54a.

2 The wide variety of job categories covered by the DOT random

testing plan includes the following: “motor vehicle operators;

criminal investigators; vessel traffic controllers; air traffic con-

trollers: mechanics (general, maintenance, electronic, instrument,

aircraft oxygen equipment, aircraft engine); aircraft electricians;

inspectors (metals, aviation, railroad safety series); transportation

equipment operation family; pilots (master, inspection/flight test) ;

civil aviation security specialists, safety specialists (highway, motor

4

fully comply and cooperate with a random and surprise

demand to report immediately for a monitored urine

collection session—in which the employee’s moment-

to-moment actions are rigorously controlled, see infra

n.ll, p.ll—is subject to being terminated from fed-

eral employment. Pet. App. 71a.

The DOT’s random testing requirement is not based

on any evidence that drug abuse by employees in the

covered positions has ever caused any significant acci-

dent. Nor is there any evidence cf any extensive drug

abuse by such employees. On September 7, 1987, the DOT

testing plan set out in Order 3910.1 went into effect.’

Subsequent test results confirm that the level of drug

use among those employees covered by the random testing

requirement is exceedingly low.’

B. Statement of Proceedings Below

On July 7, 1987, this action challenging the constitu-

tionality of the DOT random drug testing program and

seeking declaratory and injunctive relief was filed in the

carrier, railroad, safety engineer); engineers (general, civil, me-

chanical, electrical, chemical) ; firefighters; nurses; shipwright fore-

men; chief engineers (ferryboat); oiler (ferryboat and diesel):

electronics technicians; industrial hygienists; transportation spe-

cialists; lock and dam operators”. Pet. App. 10a n.8.

The DOT asserts that each of these positions bears “a direct and

immediate impact on public health and safety, the protection of life

and property, law enforcement, or national security.” Pet. App. 52a.

3 Procedures for the operation of the testing program are also

governed by the Department of Health and Human Services

(“HHS”) guidelines which were issued subsequent to the effective

date of the DOT program to govern all federal workplace drug

testing. See, HHS, Guidelines for Federal Workplace Drug Testing

Programs, 53 Fed. Reg. 11,970 (April 11, 1988) (“HHS Guide-

lines”).

4From January 1, 1988 to April 30, 1989, the DOT conducted

15,352 random tests and 99 of these tests produced positive results

(0.6%), with evidence of marijuana use accounting for two thirds

of the positive results. DOT, Drug-Free Workplace Program Eval-

uation Report (September 1989) at 16.

5

United States District Court for the District of Colum-

bia. The plaintiffs (petitioners in this Court)—labor or-

ganizations representing DOT employees covered by the

random program and two individual covered employees—

contended both that the overall program constitutes an

unreasonable search and seizure in violation of the Fourth

Amendment, and, in the alternative, that the program

is unconstitutional in its coverage of employees whose

job positions are not, in fact, in sufficiently safety- or

security-critical jobs to justify their inclusion.°

The Government filed an answer on July 15, 1987, and

a motion for summary judgment on July 30, 1987. On

August 21, 1987, petitioners filed a motion for a pre-

liminary injunction with their response to the Govern-

ment’s summary judgment motion. District Judge Gesell,

in an order dated September 30, 1987, accompanied by

a brief opinion, granted the Government’s motion for

summary judgment and denied petitioners’ motion for a

preliminary injunction because “on balance, the prepon-

derance of the proof supports the reasonableness of the

random plan.” Pet. App. 36a.°

The petitioners appealed to the United States Court of

Appeals for the District of Coiumbia Circuit. Prior to a

decision on that appeal, this Court issued its decisions in

Skinner v. Railway Labor Executives’ Association, ——

US. , 57 L.W. 43824 (March 21, 1989) and National

5 Specifically, petitioners contended that the positions of motor

vehicle operators, Federal Railroad Administration (“FRA”) haz-

ardous materials inspector, and Federal Aviation Administration

(“FAA”) aircraft mechanic, are not sufficient safety- or security-

sensitive jobs to justify their inclusion in the random testing

program.

® Although the district court granted summary judgment on the

claim that certain specified job categories are insufficiently sensitive

for inclusion in the random testing plan, that court also noted that

at this stage of the litigation, the evidence on these jobs was

“sparse”. Accordingly, that court specified that its decision would

not preclude “later, more specific challenge[s] clearly directed to a

[specific] job category.” Pet. App. 36a.

6

Treasury Employees Union v. von Raab, —— U.S. ——,

57 L.W. 4338 (March 21, 1989). In Skinner, the Court

upheld a program of post-accident drug testing of rail-

way workers, and, in von Raab, the Court upheld a pro-

gram of pre-employment drug testing of customs agents.

Based on Skinner and von Raab, the court of appeals af-

firmed the district court’s decision in this case.

Although Skinner and von Raab did not involve any

program of randem, unannounced and repetitive drug

testing, Judge Sentelle, writing for the court of appeals,

concluded that no legal difference between random test-

ing and other types of testing “compels ‘a fundamentally

different analysis from that pursued’” in Skinner and

von Raab. Pet. App. 18a (quoting Harmon v. Thorn-

burgh, 878 F.2d 484, 489 (D.C. Cir. 1989)). In random

drug testing cases, said the court below, “(t]he balance

we strike [between privacy interests and public needs]

is substantially identical to that struck by the Supreme

Court in Skinner.” Pet. App. 10a. Affirmance of the

district court was thus justified, Judge Sentelle concluded,

because, although “random testing may increase employee

anxiety and invasion of subjective expectations of pri-

vacy.” such testing “also limits discretion in the selection

process and presumably enhances drug-use deterrence.” 7

Pet. App. 18a.

7The court of appeals also rejected petitioners’ contentions re-

garding the inclusion of specific job categories in the random pro-

gram. Pet. App. 14a-18a. We do not seek review of that ruling in

this petition.

7

REASONS FOR GRANTING THE WRIT

The question presented by this certiorari petition—the

constitutionality of a government requirement that cer-

tain employees, as a condition of employment, submit to a

permanent regime of suspicionless, unannounced, random,

repetitive and closely-monitored urine collection drug test-

ing—is of the first magnitude.

Very simply stated, such suspicionless testing programs

work far deeper and far more pervasive intrusions into

personal privacy and dignity than any suspicionless

searches this Court has ever validated. See infra at pp.

9-14. Nonetheless, all levels of government are increasingly

mandating such programs. In the federal sector alone,

over 345,000 federal employees are now subject to such

tesitng programs.* The DOT, in addition, requires al-

most 4 million private sector employees in the commercial

transportation industries to submit to random drug test-

ing regimes quite similar to the regime at issue here.”

8 See Havermann, U.S. Details Plans For Drug Tests, Washing-

ton Post (May 4, 1988) at Al (over 345,000 federal employees sub-

ject to random testing) ; see also Office of Workplace Initiative, Na-

tional Institute on Drug Abuse, Report to Congress: Federal Agency

Drug-Free Workplace Programs, Tier I Agencies (March 29, 1988).

* For the DOT requirements, see BNA, National Report on Sub-

stance Abuse (November 23, 1988) at 1 (approximately 3,864,500

private sector transportation employees subject to random testing).

See also DOT, Coast Guard, Programs for Chemical Drug and Alco-

hol Testing of Commercial Vessel Personnel, 53 Fed. Reg. 47064

(November 21, 1988) (requiring random drug testing of employees

in commercial maritime industry); DOT, Federal Aviation Admin-

istration, Anti-Drug Program for Personnel Engaged in Specified

Aviation Activities, 53 Fed. Reg. 47024 (November 21, 1988)

(requiring random drug testing of employees in commercial avia-

tion industry); DOT Federal Highway Administration, Controlled

Substance Testing, 53 Fed. Reg. 47134 (November 21, 1988) (re-

quiring random drug testing of employees in motor carriage indus-

try); DOT Federal Railroad Administration, Random Drug Test-

ings; Amendments to Alcohol/Drug Regulations, 53 Fed. Reg. 47102

(November 21, 1988) (requiring random drug testing of employees

8

And these employees are only a fraction of the total num-

ber being subjected to random urine collection require-

ments."°

By any fair measure, then, these recently instituted

government drug testing programs constitute a radical

expansion of government power over the individual. Yet

the courts of appeals have been validating these pro-

grams without any close judicial examination of the

unique Fourth Amendment issues that such suspicion-

less, unannounced, random, and repetitive searches pose.

In so doing those courts, including the court below, have

simply assumed—or have simply asserted—that this

Court’s decisions in Skinner v. Railway Labor Execu-

tives’ Association, supra, and National Treasury Em-

ployees Union v. von Raab, supra, dispositively settle the

constitutionality of random drug testing programs.

But Skinner and von Raab did not concern comparable

testing programs and there is nothing in this Court’s

opinions squarely confronting the sensitive and difficult

legal issues posed here. Thus, these massive and unique

programs, which govern the working lives of millions, are

in railroad industry) ; DOT, Research and Special Programs Admin-

istration, Control of Drug Use in Natural Gas, Liquified Natural

Gas and Hazardous Liquid Pipeline Operations, 53 Fed. Reg. 47084

(November 21, 1988) (requiring random drug testing of employees

in pipeline industry).

10 The Department of Defense, for example, requires that a large

number of the employees of private defense contractors be subjected

to random drug testing regimes. See Department of Defense, Fed-

eral Acquisitions Regulation Supplement; Drug-Free Work Force,

53 Fed. Reg. 37763 (September 28, 1988), supplemented by Ques-

tions and Answers Prepared by Defense Department on Drug Free

Workplace Regulatiyns for Federal Contractors, BNA Daily Labor

Report (April 10, 1989) at G-1 (requiring random drug testing of

employees of defense contractors).

In addition, as the litigated cases indicate, hundreds of state and

local governments impose random drug testing requirements on

their employees.

9

being approved and enforced without ever being subjected

to serious judicial analysis.

In large part the legitimacy—and the moral force—-

of judicial review rests on the assurance that the courts

in interpreting the Constitution will engage in reasoned

and principled decision making. Approval of the wide-

spread, highly intrusive search programs at issue here

on the basis of lower court speculations on how far

this Court intended to move the Fourth Amendment law

in its Skinner and von Raab opinions does not, we sub-

mit, constitute such decision making.

In sum, the decision as to whether the government may

constitutionally require that individuals who are not sus-

pected of any wrongdoing are to be subject to random,

unannounced, and repeated drug testing should not be

treated as a decision arrived at sub silentio in Skinner

and von Raab. Rather, it is an open issue that should

be decided by this Court after squarely confronting the

unique aspects of these unprecedented testing programs.

I. Government Programs Of Mandatory Drug Testing On

A Random, Unannounced And Repetitive Basis Work

Intrusions Inio Privacy That Are Substantially Greater

Than Those In Skinner And van Raab And Thus Pre-

sent Important And Unresolved Fourth Amendment

Issues.

A. In his argument to this Court in von Raab, then-

Solicitor General Charles Fried made explicit that the

pre-employment testing program at issue in that case

presented a legal question quite different from the ques-

tion that is presented here:

[T]he random kind of testing . . . is not before

you. “ * &

If we have a case in which a much larger popu-

lation is tested or where the method is random drug

testing, then I would hope the Court will consider

that case on the record that will then be established

10

after it has been sorted over and digested by courts

below. But we ask neither that we get a hint or a

signal helping us out in those cases, but we hope

that nothing will be said to preclude them either.

That really lies in the future. [Transcript of Ora!

Argument, von Raab, supra, at 42-43 (November 2,

1988) .]

Similarly, Attorney General Richard Thornburgh, in ar-

guing Skinner, stressed that post-accident testing pre-

sented a far different legal issue than that presented

here:

I think it’s significant to note that the regulations

did not call for the testing of all employees or for

periodic random testing procedures. They were tied

instead to specific events . . . defined by objective

standards. [Transcript of Oral Argument, Skinner,

supra, at 13 (November 2, 1988).]

The government, in presenting Skinner and von Raab,

in other words, clearly understood that programs like the

one now at issue work much more substantial intrusions

into privacy than the testing programs challenged in those

eases. And the government further understood that this

difference in intrusiveness is of constitutional significance

since the precondition to a suspicionless search program

is that the search involve no more than a “minimal]”’ in-

trusion into privacy. See New Jersey v. T.L.O., 469 U.S.

325, 342 n.8 (1985) (“exceptions to the requirement of

individualized suspicion are generally appropriate on/y

where the privacy interests implicated are minimal’’).

Indeed, this principle was explicitly reaffirmed in Skinner

and von Raab:

In limited circumstances, where the privacy inter-

ests implicated by the search are minimal and where

an important governmental interest furthered by the

intrusion would be placed in jeopardy by a require-

ment of individualized suspicion, a -earch may be

reasonable despite the absence of [individualized]

suspicion. [Skinner, 57 L.W. at 4330 (emphasis

11

added); see also von Raab, 57 L.W. at 4842-43843

n.2 & 4344 n.4 (noting factors in particular search

program that “reduc[e] to a minimum any unset-

tling shows of authority” and “significantly mini-

mize the intrusiveness of the . . . drug screening

program” at issue).]

Thus, the Skinner and von Raab decisions rest on this

Court’s conclusion that the programs there could prop-

erly be deemed to be no more than “minimally intrusive.”

And, in Skinner, the Court went on to caution that pre-

cisely because such tests “require employees to perform

an excretory function traditionally shielded by great pri-

vacy,” the intrusions of drug testing programs into per-

sonal privacy will “not [be] characterize[d] ... as

minimal in most contexsts.” 57 L.W. at 4330 (emphasis

added )."

B. The drug testing program at issue here is vastly

more intrusive into privacy than the programs that this

Court sustained in Skinner and von Raab. Since the

governing legal standard is that such programs are con-

stitutional only if the program works no more than a

minimal intrusion on privacy, it follows that Skinner and

von Raab cannot be viewed as having decided this case.

The DOT plan requires a regime of monitored urine

testing in which, at any time, “all covered employees will

11 As this Court explained, the individual’s feelings of concern and

indignity when confronted with government demands for monitored

urine test are entirely reasonable:

“There are few activities in our society more personal or pri-

vate than the passing of urine. Most people describe it by

euphemisms if they talk about it at all. It is a function tradition-

ally performed without public observation; indeed, its perform-

ance in public is generally prohibited by law as well as social

custom.” ... [T]he collection and testing of urine [there-

fore] intrudes upon expectations of privacy that society has

long recognized as reasonable. [Skinner, 57 L.W. at 4328

(quoting National Treasury Employees Union v. von Raab, 816

F.2d 170, 175 (5th Cir. 1987) ).]

12

have an equal statistical chance of being selected for

testing.” Pet. App. 52a. Testing may occur “on any

scheduled workday.” Jd. And all random testing must

be entirely “unannounced.” Jd. Put simply, each em-

ployee will continue to be subject to random selection for

the remainder of her worklife, regardless of how often

she has been tested, how uniformly innocent her prior

tests, or how unblemished her work and health records.

And, any employee who fails to cooperate with the pro-

gram is subject to discharge. Pet. App. 71a.”

12 Once selected, an employee must follow a rigidly prescribed and

scrutinized course of conduct relating to the giving of a urine

sample.

Upon selection, she must immediately report to a “collection site,”’

which may be a public restroom or other area which DOT has desig-

nated and ‘“‘secure[d]’’ to assure that “[njo unauthorized personnel

[are] permitted.” At this site, a “collection site person” will scru-

tinize the employee’s conduct. HHS guidelines, supra, 53 Fed. Reg.

at 11980.

Upon arrival, the employee must: (1) “present some type of

photo identification” to the “collection site person”; (2) fill out a

“pre-test information form” which elicits “information regarding

[any] drugs an employee uses which may affect the outcome of the

test”; (3) remove her “unnecessary outer garments (e.g., coat,

jacket) that might conceal items or substances that could be used

to tamper with or adulterate [a] urine specimen”; (4) leave any

personal belongings (other than a wallet) with the “collection site

person”; (5) wash and dry her hands; and (6) stand in the pres-

ence of the “collection site person” in a location that does not pro-

vide “‘access to water fountains, faucets, soap dispensers, or clean-

ing agents or other materials which could be used to adulterate the

specimen.” Jd. at 11980-11981.

The employee is then supplied with a “disposable specimen con-

tainer” and is normally permitted to urinate into this container

outside of the direct observation of the “collection site person’’—

viz., in the privacy of a bathroom stall or other partitioned area—

although the act must be done in sufficiently close physical prox-

imity to the “collection site person” so that any “unusual behavior”

by the employee can be noted. Jd. at 11981.

The employee must provide the specimen to the “collection site

person,” who will determine if it is of sufficient volume and within

the normal temperature range. If the specimen is not of sufficient

13

Such a program works a significantly more intrusive

invasion on employee privacy than Skinner’s post-accident

program or von FRaab’s pre-employment program in at

least two critical regards.

First, under post-accident and pre-employment test-

ing, a urine collection test will be a rare (and possibly

even a one-time) event in an employee’s worklife. In

contrast, the very essence of the DOT program is the

requirement of repeated urine collections and testing of

each covered employee throughout her working life. The

program here establishes a regime under which invasive

demands and the apprehension of such demands are—

and henceforth will be—a recurrent and ever-present part

of every covered employee’s work day.

Second, unlike pre-employment or post-accident testing,

the testing in this case is entirely a function of the fact

that the employee has chosen to pursue a certain occupa-

tion; the testing is not triggered by any more proximate

or individualized events or decisions that might rationally

justify to an employee why she must submit to the gov-

ernment’s repeated testing demands. Given the fact that

monitored urine testing is uniquely objectionable to many

individuals precisely because the test is widely perceived

as dehumanizing, the absence of any individualized rea-

son for the testing demands further increases the af-

front. Compare Skinner, supra (testing based on one’s

involvement in a serious accident that one may have

caused); von Raab, supra (testing prior to beginning

new safety related job after applying to job with knowl-

edge of testing requirement).

volume, the employee will be required to “drink fluids to facilitate

urination” and, if necessary, to “remain at the test site for [up to]

2 hours” until a sufficient specimen is obtained. Any employee’s

“inability ... to provide the necessary specimen” is “treated as a

refusal” by the employee to cooperate with the test. If the specimen

is not within the normal temperature range, the employee will be

required to urinate again, this time under the direct observation of

the “collection site person.” Pet. App. 61a; 53 Fed. Reg. 11981.

14

The inherently intrusive nature of random urine test-

ing, moreover, is substantially exacerbated by the fact

that the DOT requires that each test here be unan-

nounced. It is too plain for argument that the absence

of advance notice of an anxiety-producing search is a

factor of major significance in heightening its intru-

siveness. United Siates v. Martinez-Fuerte, 428 U.S.

548, 558-559 (1976) (preventing surprise reduces intru-

sion); Wyman v. James, 400 U.S. 309, 320 (1971)

(same).

Here, the affected employee is yanked from her nor-

mal routine without an opportunity to prepare emotion-

ally, and the program’s design thereby dramatically in-

creases the inherent tendency of drug testing to cause

indignity, fright, and concern. See von Raab, supra, 57

L.W. at 4342, n.2. (intrusiveness of pre-employment drug

test was “significantly minimize[d],’”’ because job appli-

cants are “notified [five days] in advance of the scheduled

sample collection”). Given the lack of any rational pub-

lic need for eliminating advanced warning, this aspect

of the program must be viewed as an especially egregious

government invasion of reasonable privacy expectations.

C. Taken together, these factors make clear that the

purpose and effect of the DOT drug testing program is

to create in each and every individual who works in a

covered occupation a realistic, continuing, and ever-

present apprehension that at any moment, and without

reason or warning, she may be subjected to a highly in-

vasive urine collection demand.

While we believe that the intrusiveness of such a

program simply cannot be deemed “minimal’—and that

the program is therefore unconstitutional—for present

purposes it is enough that these factors certainly render

the program legally distinct from those at issue in Skin-

ner and von Raab. Since millions are now being subject

to such constitutionally controversial programs, this case

raises a substantial question that should be resolved by

this Court.

15

II. The Courts Of Appeals—Including The Court Below—

Have Erroneously Assumed That Skinner And von

Raab Decided The Validity Of Random, Unannounced

And Repetitive Drug Testing And They Are Thus Not

Independently Examining The Issue.

A. The panel below had no occasion to state its reason-

ing at length since the Court of Appeals for the District

of Columbia Circuit had already determined its position

on random testing. See Harmon v. Thornburgh, 878 F.2d

484 (D.C. Cir. 1989), cert. denied sub nom. Bell v.

Thornburgh, —— U.S. (January 22, 1990).° But

an examination of Harmon reveals that in that case, too,

the court of appeals engaged in no serious analysis;

rather, Harmon sustained a random testing program sim-

ply on the strength of Skinner and von Raab.

The Harmon panel began its discussion of random

testing by complaining that neither Skinner nor von

Raab state a clear rule for distinguishing “legitimate

drug-testing programs . . . from illegitimate ones,” 878

F.2d at 488, and by suggesting that “|t]he invasion of

privacy occasioned by [random and repetitive programs |

might ... be regarded as different in kind from the in-

trusion at issue” in those cases, id. Indeed, the Harmon

panel expressly recognized that “a coherent theory might

be constructed which would make [random and repetitive

selection| a fundamental distinction.” Jd. at 489. But

Harmon then rejects this possibility with the conclusory

statement that “the Supreme Court has not encouraged

the construction of such a theory.” Jd. The principal

13 Virtually the entire discussion of the issue in the court of

appeals’ decision below was as follows:

While it is true that the regulations sustained in Skinner re-

quired testing only after a triggering event ... we do not find

that ... [this] fact[] compels ‘“‘a fundamentally different analy-

sis from that pursued by the Supreme Court.” Harmon, 878

F.2d at 489. While it is true that random testing may increase

employee anxiety and the invasion of subjective expectations of

privacy, it also limits discretion in the selection process and

presumably enhances drug-use deterrence. [Pet. App. 12a-13a.]

16

basis given for this conclusion is that in von Raab much

of the discussion of the need for minimizing the intru-

siveness of testing ‘was confined to a footnote.” Jd. (cit-

ing von Raab, 57 L.W. at 4342 n.2).

Given this treatment, it is clear that the court below

has never given independent, reasoned consideration to

the substantial constitutional issues in this case, but has

instead assumed that those issues were decided sub

silentio in Skinner and von Raab.

The Court of Appeals for the District of Columbia

Circuit is not alone in its failure to confront the ques-

tion presented here. Its method of approach—that Shin-

ner and von Raab should be read as broadly validating

random testing programs—is the one that the lower

courts are routinely following.

For example, the Fourtn Cireuit, in Thompson v. Marsh,

884 F.2d 113, 114 (4th Cir. 1989), recently issued a

brief per curiam opinion stating simply—and_ errone-

ously—that in Skinner and von Raab “the Supreme

Court decided that random drug tests do not violate the

Fourth Amendment.” And the Seventh Circuit recently

disposed of a similar case simply by noting Harmon and

the instant case with apparent approval. See, Tayloi v.

O’Grady, 888 F.2d 1189, 1198, 1200-1201 (7th Cir.

1989).

The Seventh Circuit’s Taylor decision does not actually reach

the specific issue of the validity of random drug testing programs

such as the instant one; rather the testing program in Taylor was

one in which each employee was required to submit annually to a

surprise testing demand. See Taylor, supra, 888 F.2d at 1198.

The law in the First Circuit, although not entirely clear, may

also take Skinner and von Raab as having decided the consti-

tutionality of random testing. In Guiney v. Roache, 873 F.2d

1557 (1st Cir. 1989), cert. denied, U.S. —--— (November 13,

1989) that court remanded a random testing case back to the

district court for disposition in light of Skinner and von Raab.

Although the opinion’s wordin: ‘oes not make clear the First Cir-

cuit’s view of whether the random testing issue was decided, both

parties seem to have construed the opinion as holding that further

17

For the reasons already given, supra pp. 9-14, the

judgment as to whether the Constitution permits wide-

spread, suspicionless, unannounced searches of the kind

at issue here is one that should be rendered after this

Court has squarely confronted that question and not on

the basis of a lower ccurt’s intuition on how far the

Skinner and von Raab opinions are to be extended. Fi-

delity to the Fourth Amendment demands no less—and

as we will show in the full briefing of this case—in fact

demands far more.

CONCLUSION

For the foregoing reasons, this Court should grant a

writ of certiorari to review the decision of the Court

of Appeals for the District of Columbia Circuit in this

case.

Respectfully submitted,

MARK ROTH

JOE GOLDBERG

80 F Street, N.W.

Washington, D.C. 20001

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

challenge on the issue was foreclosed by this Court’s decisions. See

Petition for Certiorari, Guiney v. Roache, No. 89-205; Respondent’s

Brief in Opposition, Guiney v. Roache, supra.

The Third and Eighth Circuit had explicitly upheld random test-

ing programs prior to this Court’s Skinner and von Raab decisions.

See Transport Workers Union, Local 234 v. SEPTA, 884 F.2d 709

(3d Cir. 1989) (upholding random testing program based on pre-

Skinner and pre-von Raab law of the circuit); Rushton v. Nebraska

Public Power Dist., 844 F.2d 562, 566 (8th Cir. 1988) (upholding

random testing program based on rationale different from that

adopted in Skinner and von Raab).