Petition for Writ of Certiorari — Bluestein v. Skinner

C) j fe Supreme Court, U.S.

ath FILED «

90-783 cil

3 Vt NOV 7 188

i

JOSEPH F. SPANIOLW, JR

No.

+!

weno BOTH 8 . . ~

IN THE

Suprene Court of the United States

OCTOBER TERM, 1990

MICHAEL S. BLUESTEIN, et al.,

Petitioners,

V.

SAMUEL K. SKINNER,

Secretary of Transportation, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

[ Attorneys for Individual! Petitioners Listed on Inside Cover]

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

@ Ge co

2

GARY GREEN

JERRY ANKER

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for Air Line Pilots

Association

WILLIAM JOLLEY

204 West Linwood Boulevard

Kansas City, MO 64111

Counsel for Sheri Albert,

Charles McCune and

Independent Federation of

Flight Attendants

DEBORAH GREENFIELD

EDWARD J. GILMARTIN

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for Association of

Flight Attendants

MICHAEL GOTTESMAN

GEORGE COHEN

MApDyY GILSON

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for Association of

Professional Flight

Attendants and Independent

Union of Flight Attendants

STEPHEN P. BERZON

FRED H. ALTSHULER

MICHAEL RUBIN

177 Post Street, Suite 300

San Francisco, CA 94108

Counsel for Michael S. Bluestein

and Dean N. Chanitiles

ALLISON BECK

OWEN HERRNSTADT

1300 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for International

Association of Machinists and

Aerospace Workers

JAMES T. GRADY

GARY S. WITLIN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Counsel for International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen

and Helpers of America

LEE SEHAM

485 Madison Avenue

New York, NY 10022

Counsel for Richard S. Linn

Scott D. RAPHAEL

1900 Avenue of the Stars

Suite 2300

Los Angeles, CA 90067

Counsel for Orange County

Airport Association

ARTHUR M. LuBY

1300 L Street, N.W.

Washington, D.C. 20001

Counsel for Transport

Workers Union of America

LARRY MANN

400 First Street, N.W.

Washington, D.C. 20001

Counsel for Transportation-

Communications International

Union

QUESTION PRESENTED

Does the Federal Aviation Administration’s “Anti-

Drug Program for Personnel Engaged in Specified Avia-

tion Activities” violate the Fourth Amendment’s prohibi-

tion against unreasonable searches and seizures, insofar

as that program requires hundreds of thousands of pri-

vate sector employees in the commercial aviation indus-

try, as a condition of retaining their positions, to submit

to a permanent regime of suspicicnless, repeated, unan-

nounced, random and closely-monitored urine collection

drug testing?

(i)

ii

LIST OF PARTIES TO THE PROCEEDING

The petitioners in this proceeding, and in the proceed-

ing below, are as follows: Air Line Pilots Association;

Sheri Albert; Associaticn of Flight Attendants; Associa-

tion of Professional Flight Attendants; Michael S.

Bluestein; Dean N. Chantiles; Independent Union of

Flight Attendants; International Association of Machin-

ists and Aerospace Workers; International Brotherhood

of Teamsters, Chauffeurs, Warehousemen and Helpers of

America; International Federation of Flight Attendants;

Richard Linn; Charles McCune; Orange County Airport

Association; Transport Workers Union of America;

and Transportation-Communications International Union.

The respondents in this proceeding, and below, are

Samuel K. Skinner, Secretary of Transportation and the

Federal Aviation Administration. There are no other

parties.

TABLE OF CONTENTS

QUESTION PRESENTED .Q20022222......eeeceeeeeeeeeeeeeeeeeees

EEE, Sh ee Os EAU Ae TORT Le em ETT

REE 5 SSO SRT oem an Oe CORRES

EEF RT 2 LE Ee ey SOT ORT ONO

CONSTITUTIONAL AND REGULATORY PROVI-

Se eT PON Si con cine oven iva saidbacvecvine cbcocciescbassies

STATEMENT OF THE CASE ..................00000000--00-0----.

as Te I css cnsmcecoccsessenccienectine

REASONS FOR GRANTING THE WRIT ....................

I. Government Programs Of Mandatory Drug

Testing On A Repetitive, Unannounced And Ran-

dom Basis Work Intrusions Into Privacy That

Are Far Greater Than The Intrusions Worked

By The Skinner And von Raab Programs And

Thus Present Important And Unresolved Fourth

TEE A EL EN

II. The Courts Of Appeals—Including The Court

Below—Have £Erroneously Assumed That

Skinner And von Raab Decided The Validity Of

Repetitive, Unannounced And Random Drug

Testing And They Are Thus Not Independently

a okestaingiabeaak

SIT Cink hacked cnininencishovnokisia tiickesicmmbblibicieceintlis

(iii)

iv

TABLE OF AUTHORITIES

CASES: Page

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

denied, 110 S. Ct. 404 (1989) 2.0... 18

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

1989), cert. denied, 110 S. Ct. 865 (1990) _...... 6, 15,

16, 17

Michigan v. Tyler, 486 U.S. 499 (1978) ................... 14

National Treasury Employees Union v. von Raab,

US. , 57 L.W. 4338 (March 21, 1989) ..passim

New Jersey v. T.L.O., 469 U.S. 325 (1985) ........... 5, 10, 16

Penny v. Kennedy, —— F.2d —— (6th Cir. No.

86-6280; October 4, 1990) .......0222 eee 19

Rushton v. Nebraska Public Power District, 844

F.2d 562 (8th Cir. 1988) ~.............2...2.22.. wu... 19

Skinner v. Railway Labor Executive Association,

US. , 57 L.W. 4324 (March 21, 1989) ..passim

Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989) .. 18

Thomson v. Marsh, 884 F.2d 118 (4th Cir. 1989) .... 18

Transport Workers Union, Local 234 v. SEPTA,

Gon P.me tee Com Gar. Leee) ................................... 19

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

EURWGED stcsowwcbemsaicanensncponsionsanuneeeyuinanntansscseatenecenaceeresees 14

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

CONSTITUTION:

EEA LOT LTE EE TOR IS passim

STATUTES:

a MIN OD 5. ctasasiantinirnintinttintindae 2

MISCELLANEOUS:

Bureau of National Affairs, BNA National Report

on Substance Abuse (November 23, 1988) at 1.. 3

Department of Transportation, Coast Guard, Pro-

grams for Chemical Drug and Alcohol Testing

of Commercial Vessel Personnel, 53 Fed. Reg.

47064 (November 21, 1988) ..................2.22..........- 3

Department of Transportation, Federal Aviation

Administration, Anti-Drug Program for Person-

nel Engaged in Specified Aviation Activities, 53

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

v

TABLE OF AUTHORITIES—Continued

Department of Transportation, Federal Highway

Administration, Controlled Substance Testing,

58 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, Procedures for

Transportation Workplace Drug Testing Pro-

grams, 538 Fed. Reg. 47002 (November 21,

1988) .............

Department of Transportation, Research and Spe-

cial Programs Administration, Control of Drug

Use in Natural Gas, Liquified Natural Gas and

Hazardous Liquid Pipeline Operations, 53 Fed.

Reg. 47084 (November 21, 1988) ...........0.000....

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

Labor Report (April 10, 1989) at G-1 _...00...

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

Agencies (March 29, 1988) ...................................

Page

12

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1990

—— ee

MICHAEL 8. BLUESTEIN, et al.,

“ Petitioners,

SAMUEL K. SKINNER,

Secretary of Transportation, et al.,

Respondents.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioners, Michael S. Bluestein, et al., petitioners in

the court of appeals, respectfully petition this Court to

issue a writ of certiorari to the United States Court of

Appeals for the Ninth Circuit to review the decision and

judgment in Bluestein v. Skinner, 908 F.2d 451 (Ninth

Cir. Nos. 88-7503, 88-7508, 89-70024, 89-70111, 89-70138

& 89-70139; July 10, 1990).

OPINION BELOW

The opinion of the Court of Appeals for the Ninth

Circuit is reported at 908 F.2d 451 and is reprinted in

the separate appendix to this petition (“Pet. App.”) at

la-lda,

2

JURISDICTION

The judgment of the court of appeals was issued on

July 10, 1990. On September 24, 1990, the time for filing

a petition for a writ of certiorari was extended by Jus-

tice O’Connor to and including November 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 persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated, and no

warrants shall issue, but upon probable cause, sup-

ported by Oath or affirmation and particularly de-

scribing the place to be searched and the persons or

things to be seized.

The final rule of the Federal Aviation Administration

(“FAA”), entitled “Anti-Drug Program for Personnel

Engaged ‘n Specified Aviation Activities,” was dated

November 21, 1988, published at 53 Fed. Reg. 47024,

and is reprinted at Pet. App. 16a-163a.

STATEMENT OF THE CASE

A. Statement of Facts

On November 21, 1988, numerous agencies within the

Department of Transportation (“DOT”) simultaneously

issued rules requiring that employers throughout the pri-

vate transportation sector of the economy adopt extensive

and mandatory employee urinalysis drug-testing programs.

These programs require almost 4 million private sector

transportation workers to submit to various testing re-

quirements."

1In addition to the FAA rule governing employees in the com-

mercial aviation industry, which is the subject of this litigation,

|

3

This case involves a constitutional challenge to the

“random testing” requirement of the FAA rule, which

provides that all private commercial aviation employers

must subject all their employees in certain classifications

to suspicionless, repeated, unannounced, and _ closely-

monitored drug tests triggered by the employee’s chance

selection from the larger employee population.’

the following drug testing rules, governing other transportation

sector industries were issued on November 21, 1988: Ccast Guard,

Programs for Chemical Drug and Alcohol Testing of Commercial

Vessel Personnel, 53 Fed. Reg. 47064 (maritime industry); Re-

search and Special Programs Adininistration, Control of Drug Use

in Natural Gas, Liquified Naturai Gas, and Hazardous Liquid Pipe-

line Operations, 53 Fed. Reg. 47084 (pipeline industry); Federal

Railroad Administration, Random Drug Testing; Amendments to

Alcohol/Drug Regulations, 53 Fed. Reg. 47102 (railroad industry) ;

Federal Highway Administration, Controlled Substances Testing,

53 Fed. Reg. 47134 (motor carrier industry); Urban Mass Trans-

portation, Control of Drug Use in Mass Transportation Operations,

53 Fed. Reg. 47156 (urban mass transit).

The Bureau of National Affairs calculated that approximately

3,864,500 private sector transportation employees are subject to

random testing under all of the DOT rules. BNA, National Report

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

2 Because the FAA rule mandates drug testing for commercial

aviation industry employees ur..er a variety of different situations,

it merits emphasis at the outset that Petitioners challenge only the

rule’s “random testing” requirement. The FAA rvle—and each of

the other DOT rules-——also requires a variety of other “types of

testing,” which include: (1) “pre-employment testing,” under which

applicants to certain positions must be tested prior to beginning in

those positions; (2) “periodic testing,” under which employees who

are otherwise required to undergo periodic medical exams must

include a drug test in the exams; (3) “post-accident testing,” under

which employees must be tested whenever their behavior may have

caused an accident; (4) “reasonable cause testing,” under which

employees can be tested when management has reasonable cause to

suspect use of iliegal drugs; and (5) “testing after return to duty,”

under which employees who have previously been removed from

their positions for illegal drug use must be tested after completing

a rehabilitation program and returning to service. Pet. App. 148a-

15la. None of these other “types of testing” are challenged in this

action,

4

By the FAA’s estimate, the “random testing” rule

covers approximately 538,000 employees performing a

wide variety of specified commercial aviation functions

that the FAA considers to be safety or security related.

Pet. App. 133a, 136a.* Any covered employee who does

not comply with the rule’s random and surprise demands

for an immediate and closely-monitored urine collection

session—in which the employee’s moment-to-moment ac-

tions are rigorously controlled, see infra at 12 n.7—must

be removed from her position and may be terminated

from her employment. Pet. App. 139a-14la, 144a &

162a.

B. Statement of Proceedings Below

Petitioners in this case, and below, include individual

employees engaged in various occupations within the com-

mercial aviation industry who are subject to the FAA’s

“random testing” requirement, the principal labor organi-

zations in that industry representing employees subject

to the requirement, and an organization of aviation em-

ployees and employers subject to the requirement. All

petitioners participated in the proceedings before the

FAA relating to the promulgation of the FAA final rule,

and in those proceedings opposed FAA adoption of a

“random testing”’ requirement.*

% Specifically, aviation employees performing duties in any of the

following eight areas are subject to mandatory “random testing” for

drug usage: (1) flight crew duties; (2) flight attendant duties;

(3) flight or ground transportation duties; (4) flight testing

duties; (5) aircraft or ground dispatcher duties; (6) aircraft

maintenance or preventive maintenance duties; (7) aviation secu-

rity or screening duties; and (8) air traffic control duties. Pet.

App. 147a.

4The FAA’s requirement of mandatory random drug testing was

first proposed on December 9, 1986, in the FAA’s Advance Notice

of Proposed Rulemaking (“ANPRM”) entitled “Control of Drug

and Alcohol Use for Personnel Engaged in Commercial and General

Aviation Activities.” See 51 Fed. Reg. 44432. After receiving over

650 written comments, “the vast majority [of which] opposed ran-

dom testing,” the FAA expanded the random testing proposal on

5

After the FAA issued its rule requiring the “random

testing” program at issue here, petitioners brought six

separate actions in various courts of appeals challenging,

inter alia, the constitutionality of the FAA’s “random

testing” requirement. All actions filed in courts of ap-

peals other than the Ninth Circuit were voluntarily

transferred to, and were then consolidated in, the Ninth

Circuit.

Petitioners’ central contention in the Ninth Circuit

was that the FAA’s program of suspicionless, repetitive,

entirely unannounced, and random urine collection test-

ing, when analyzed in terms of traditional Fourth

Amendment concerns, is far more intrusive than any sus-

picionless search program ever validated by this Court.

Petitioners principally relied on this Court’s admoni-

tion that “exceptions to the [Fourth Amendment’s] re-

quirement of individualized suspicion are generally ap-

propriate only where the privacy interests implicated are

minimal,” New Jersey v. T.L.O., 469 U.S. 325, 342 n.8

(1985) (emphasis added), and petitioners pointed out

that the drug testing programs previously approved by

this Court were far less intrusive then those at issue

here, see Skinner v. Railway Labor Executive Ass’n,

— US. ——, 57 L.W. 4824 (March 21, 1989) (up-

March 14, 1988, in the Notice of Proposed Rulemaking (“NPRM”),

entitled “Anti-Drug Program for Personnel Engaged in Specified

Aviation Activities.” See 53 Fed. Reg. 8368, 8370. The FAA re-.

ceived over 200 written comments to the NPRM, and again, a vast

majority opposed random testing. The FAA also held a series of

public hearings on the NPRM.

Among those who opposed random testing during the proceedings

were the National Transportation Safety Board and the American

Medical Association as well as most individual employees and vir-

tually all unions and other organizations representing employees.

Pet. App. 55a-58a.

On November 21, 1988, the FAA issued the final rule, which

includes the “random testing” program at issuc here.

6

holding program of one-time post-accident drug tests) ;

National Treasury Employees Union v. von Raab,

U.S. ——, 57 L.W. 4338 (March 21, 1989) (upholding

program of preemployment drug testing with prior no-

tice). On these bases, petitioners contended that the

FAA’s “random testing” program worked intrusions into

individual privacy and dignity far beyond the “minimal”

level that the Fourth Amendment tolerates in the ab-

sence of any individualized suspicion.

Although Skinner and von Raab did not involve pro-

granis of repetitive, unannounced, and random drug test-

ing, the Ninth Circuit concluded that the FAA’s program

does not “require[] us to undertake a fundamentally dif-

ferent analysis from that pursued” in Skinner and von

Raab. Pet. App. 13a (quoting Harmon v. Thornburgh,

878 F.2d 484, 489 (D.C. Cir. 1989)). The court of ap-

peals then concluded that, in light of Skinner and von

Raab, the FAA program’s repetitive, entirely unan-

nounced, and random nature is “insufficient to tip the

scales against the FAA drug testing program at issue

here.” Pet. App. 12a.

REASONS FOR GRANTING THE WRIT

The question presented by this certiorari petition—the

constitutionality of a government requirement that hun-

dreds of thousands of employees, as a condition of their

continuing in their positions, submit to a permanent re-

gime of repetitive, entirely unannounced, and random

urine collection drug testing—is of the first magnitude.

Very simply stated, such suspicionless testing pro-

grams work far deeper and far more pervasive intru-

sions into personal privacy and dignity than any suspic-

ionless searches this Court has ever validated. See infra

at 8-14. Nonetheless, all levels of government are in-

creasingly mandating such programs, so that today many

millions of private and public sector employees are sub-

jected to required programs of repetitive, unannounced,

and random drug testing.

7

The FAA program alone, as we have noted, subjects

over 500,000 employees to its “random testing” require-

ment, and the other DOT programs subject almost 314

million employees to such testing. See supra at 2-3 n.1.

Moreover, the federal government now requires such ran-

dom testing for over 345,000 federal employees, the De-

partment of Defense now requires such testing for a

vast (albeit undetermined) number of employees of de-

fense contractors, and, as the litigated cases show, many

state and local governments have imposed such testing

programs on their own employees.®

By any fair measure, then, these recently instituted

government programs of urine collection drug testing con-

stitute government intrusions into individual dignity and

privacy interests on an unprecedented scale; these pro-

grams thus represent a radical expansion of government

power over the individual.

Yet the courts of appeals have been validating these

programs without any close judicial examination of the

unique Fourth Amendment issues that such suspicionless

searches pose. In urging the validity of these programs,

government attorneys have asserted—and the courts, in-

cluding the court below, have accepted without analysis—

that this Court’s decisions in Skinner v. Railway Labor

Executives’ Association, supra, and National Treasury

Employees Union v. von Raab, supra, have already dis-

positively settled the constitutionality of “random drug

5 See Havermann, U.S. Details Plans For Drug Tests, Washington

Post (May 4, 1988) at Al (over 345,000 federal employees subject

to random testing) ; see also Office of Workplace Initiative, National

Institute on Drug Abuse, Report to Congress: Federal Agency

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

See also Department of Defense, Federal Acquisitions Regulations

Supplement; Drug-Free Work Force, 53 Fed. Reg. 37763 (Septem-

ber 28, 1988), supplemented by Questions and Answers Prepared

by Defense Derartment on Drug Free Workplace Regulations for

Federal Contractors, BNA Daily Labor Report (April 10, 1989) at

G-1 (requiring random drug testing of employees of defense

contractors) .

i te 2 te eee

ee eee

8

testing” programs. But Skinner and von Raab did not

concern comparable testing programs. Thus, these mas-

sive and unique programs, which govern the working

lives of millions, are being approved and enforced de-

spite the fact that this particular kind of testing has

never been subjected to independent judicial appraisal

under the proper constitutional standards.

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 as to how far this

Court intended to move the Fourth Amendment law in

its Skinner and von Raab opinions does not, we submit,

constitute such decision making.

In sum, the decision as to whether the government may

constitutionally require individuals who are not suspected

of any wrongdoing to be subject to mandatory, repeated,

entirely unannounced, and random urine collection drug

tests should not be treated as a decision arrived at sub

silentio in Skinner and von Raab. Rather, this constitu-

tional question should be treated as one raising an open

issue to be decided by this Court after squarely confront-

ing the uniquely intrusive aspects of these unprecedented

testing programs.

I. Government Programs Of Mandatory Drug Testing

On A Repetitive, Entirely Unannounced And Random

Basis Work Intrusions Into Privacy That Are Far

Greater Than The Intrusions Worked By The Skinner

And von Raab Programs And Thus Present Important

And Unresolved Fourth Amendment Issues.

A. In his argument to this Court in National Treas-

ury Employees Union v. von Raab, then-Solicitor Gen-

eral Cha.les Fried made explicit that the pre-employment

drug testing program at issue in that case presented a

9

legal question far different from the constitutional ques-

tion that so-called ‘‘random testing” programs present:

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

you. * % #

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

tion is tested or where the method is random drug

testing, than I would hope the Court will consider

that case on the record that will then be established

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 Oral Argu-

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

1988) .]

Similarly, Attorney General Richard Thornburgh, in ar-

guing Skinner v. RLEA, stressed that post-accident test-

ing also presented 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) .]

Thus, as these statements show, the government, in

presenting Skinner and von Raab, fully understood that

the relatively narrow testing programs challenged in

those cases involved far lesser intrusions into privacy

than do “random testing” programs like the one now at

issue. Moreover, the government further understood that

this difference in intrusiveness is of constitutional sig-

nificance.

Under this Court’s jurisprudence, the constitutionality

of any suspicionless search program turns on whether the

program—in its particulars and in its context—can prop-

erly be characterized as “minimally intrusive” into an

individual’s legitimate privacy and dignity interests. Put

10

simply, it is a precondition of a constitutional suspicion-

less search program that the program involves no more

than a “minimal” intrusion into privacy. See New Jer-

sey v. T.L.O., 469 U.S. 325, 342 n.8 (1985) (“exceptions

to the requirement of individualized suspicion are gen-

erally appropriate only where the privacy interests im-

plicated are minimal’).

Far from questioning this principle, Skinner and von

Raab expressly reaffirmed it. In Skinner, the Court ex-

plicitly referred to this doctrine as establishing the frame-

work for its analysis:

In limited circumstances, where the privacy interests

implicated by the search are minimal and where an

important governmental interest furthered by the in-

trusion would be placed in jeopardy by a requirement

of individualized suspicion, a search may be reason-

able despite the absence of [individualized] suspicion.

[Skinner, 57 L.W. at 4830 (emphasis added) .]

And in von Raab the Court noted in detail those factors

concerning the testing program there at issue which “re-

duce[d] to a minimum any unsettling shows of author-

ity” and worked to “significantly minimize the intrusive-

ness of the... drug screening program.” Von Raab, 57

L.W. at 4842-4343 n.2 & 4344 n.4.

The Skinner and von Raab decisions thus focused on

the particulars of the programs before the Court in those

cases, and those decisions rest on the Court’s conclusion

that the programs there had been structured with suffi-

cient limits and safeguards so as to be no more than

“minimally intrusive.” Indeed, in Skinner, the Court

went on to admonish that precisely because urine collec-

tion tests “require employees to perform an excretory

function traditionally shielded by great privacy,” the in-

trusions of such testing programs into personal privacy

11

will “not [be] characterize[d] . .. as minimal in most

contexts.” 57 L.W. at 4330 (emphasis added).®

B. The permanent regime of repetitive, entirely unan-

nounced and random urine collection drug tests at issue

here is vastly more intrusive into the privacy and dignity

interests of those made subject to it than the testing

programs that this Court sustained in Skinner and von

Raab. Given that the governing legal standard is that a

suspicionless search program is constitutional only if the

program works no more than minimal intrusions into

dignity and privacy, it follows that Skinner and von

Raab cannot be viewed as having decided this case.

Under the FAA’s “random testing” program, aviation

employers must randomly select employees from their

covered workforce on a regular basis (using a computer

system or other approved means of random selection),

and must then, without any prior notice or warning, com-

pel those employees promptly to undergo closely-monitored

urine collection procedures. The program envisions con-

tinuing, sudden, and suspicionless drug tests, leaving each

covered employee in the industry ever-conscious of the

realistic prospect that she may at any time be made to

submit to a sudden and unannounced urine test. And this

regime will govern each covered employee for the re-

mainder of her worklife, regardless of how often she has

® As this Court explained, it is entirely reasonable for an individ-

ual to feel that her privacy and dignity have been invaded by a

government demand for a monitored urine test:

“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 tradi-

tionally performed without public observation; indeed, its per-

formance in public is generally prohibited by law as well as

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

[therefore] 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

been tested, how uniformly innocent her prior tests, or

how unblemished her work and health records.’

7 Each time an employee is selected for a urine collection, she

must follow a rigidly prescribed and closely scrutinized course of

conduct surrounding her giving of a urine sample. See DOT, Proce-

dures for Transportation Workplace Drug Testing Programs, 53

Fed. Reg. 47002 (November 21, 1988).

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

which may be a public restroom or other area which her employer

has designated, and which must be secured against unauthorized

personnel. 53 Fed. Reg. 47006.

At this site, a “collection site person” will scrutinize the employ-

ee’s conduct. 53 Fed. Reg. at 47006. The employee must: (1) prove

her identity to the “collection site person”; (2) remove her “unnec-

essary outer garments such as a coat or jacket” and leave them and

any other personal belongings (other than a wallet) in the presence

of the “collection site person’; (3) wash her hands; and (4) after

washing, remain in the presence of the “collection site person” in a

location that does not provide access “to any water fountain, faucet,

soap dispenser, cleaning agent or any other materials which could

be used to adulterate the specimen”, id. at 47007. Throughout this

process, the “collection site person” is charged to “note [in writing]

any unusual behavior or appearance” of the employee. /d.

At this point the employee is normally permitted to perform the

act of urination outside the direct observation of the “collection site

person”—viz., “in the privacy of a stall or otherwise partitioned

area,” id. at 47007—but the employee must remain in sufficiently

close physical proximity so that the “collection site person” is able

to ensure that no effort at adulteration of the specimen is attempted

and to record any “unusual behavior.” Id.

After receiving the specimen of the employee, the “collection site

person” measures its volume and, if the specimen is of insufficient

volume, the “collection site person” requires the employee to produce

an additional urine sample. The employee “may be given a reason-

able amount of liquid to drink for this purpose.” Jd. at 47007. The

“collection site person” then measures the temperature of the speci-

men to assure that the urine is within the temperature range for a

normal urination, examines the specimen for any other signs of

adulteration, and then seals, labels, and secures the specimen. /d.

“Whenever there is reason to believe that a particular [employee]

has altered or substituted the specimen” the employee will be re-

quired to urinate again as “soon as possible under the direct obser-

vation” of the “collection site person.” Jd. at 47008.

EOS ish. fe nee

13

In at least three critical regards, a “random testing”

program such as the FAA’s works a significantly more

intrusive invasion on employee privacy and dignity than

Skinner’s post-accident testing program or von Raab’s

pre-employment testing program.

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

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 FAA’s “random testing” program

is the requirement of repeated urine collections for each

covered employee throughout her worklife. Under the pro-

gram here, invasivesdemands, and the apprehension of

such demands, are—and henceforth will be—a part of

every covered employee’s work day for the remainder of

the employee’s career.

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

the FAA’s “random testing” is entirely a function of the

fact that the employee has chosen to pursue a certain oc-

cupation; the testing is not triggered by any more in-

dividualized, or more proximate, event that might ra-

tionally justify to an employee why she must submit to

the government’s continuing urine collection 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 reason for the test further increases

the affront. 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).

Third, the inherently intrusive nature of the FAA’s

“random testing” is substantially exacerbated by the re-

quirement that each test here be entirely unannounced.

It is too plain for argument that the absence of any ad-

vance notice of an anxiety-producing search is a factor of

major significance in heightening the intrusiveness of the

14

search and of the search demand. See United States v.

Martinez-Fuerte, 428 U.S. 548, 558-559 (1976) (prevent-

ing surprise reduces intrusion); Wyman v. James, 400

U.S. 309, 320 (1971) (same); see also Michigan v. Ty-

ler, 486 U.S. 499, 513-514 (1978) (Stevens, J. concurring

in part) (stressing constitutional importance of prior no-

tice in warrantless searches). Here, because the affected

employee is yanked from her normal work routine without

any warning, the FAA’s program dramatically increases

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 applicants are

“notified [five days] in advance of the scheduled sample

collection”). Given the lack of any rational public need

for eliminating all advance warning, this aspect of the

program must be viewed as an especially egregious gov-

ernment invasion of reasonable privacy expectations.

C. Taken together, these factors make clear that the

purpose and effect of the FAA “random 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 invasive

urine collection demand. While we believe that the intru-

siveness of such a program simply cannot be deemed

“minimal”’—and that the program is therefore unconsti-

tutional—for present purposes it is enough that these

factors certainly render the program legally distinct from

those at issue in Skinner and von Raab. Since miliions

are now being subject to such constitutionally controver-

sial programs, this case raises a substantial question that

should be resolved by this Court.

a LD SE

15

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

Have Erroneously Assumed That Skinner And von

Raab Decided The Validity Of Repetitive, Unannounced

And Random Drug Testing And They Are Thus Not

Independently Examining The Issue.

A. The panel below devoted the bulk of its opinion to a

discussion of Skinner and von Raab, concluding that the

FAA’s interest in preventing drug use among aviation

employees is at least as important as the analogous gov-

ernmental interest in preventing drug use among railroad

employees (Skinner) and customs employees (von Raab).

Pet. App. 8a-12a. But we had never questioned this

proposition; rather we had argued that the FAA’s repeti-

tive, unannounced, and random testing program is far

more intrusive than the more benign programs at issue

in Skinner and von Raab, and cannot be deemed only

“minimally intrusive” into individual privacy interests.

The panel’s response to our argument was that “the

Fourth Amendment issue in this case cannot be meaning-

fully distinguished from the Fourth Amendment issue ad-

dressed by the Supreme Court in [Skinner and] von

Raab.” Pet. App. 18a. The panel’s discussion to support

this conclusion is largely contained in one paragraph of

the opinion in which the panel followed a previous D.C.

Circuit decision which had similarly held a “random test-

ing” program legally indistinguishable from the programs

approved by this Court in Skinner and von Raab. See

Pet. App. 12a-13a (citing and quoting Harmon v. Thorn-

burgh, 878 F.2d 484, 489 (D.C. Cir. 1989), cert. denied,

110 8.Ct. 865 (1990) ).°

8 Virtually the entire discussion of the issue in the court of ap-

peals decision below was as follows:

Although [such factors as the repetitive, random and unan-

nounced nature of the program] add some weight to the “inva-

sion of privacy” side of the Fourth Amendment balance, they

are insufficient to tip the scales against the FAA drug testing

16

The decision below did not independently assess the

FAA program’s intrusiveness into privacy and dignity

interests to determine whether these intrusions exceed the

“minimal” level that the Fourth Amendment tolerates in

the absence of individualized suspicion. Indeed, the court

never acknowledged the clearly established legal principle

—which both Skinner and von Raab acknowiedged—that

suspicionless search programs are constitutional only if

no more than “minimally intrusive” into privacy and

dignity.® Instead, the panel concluded, following Harmon

v. Thornburgh, supra, that Skinner and von Raab had

validated drug testing programs for safety and security

related positions generally, so that differences in the in-

program at issue here. The reasoning of the D.C. Circuit in

Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989), is

instructive. In Harmon, the court upheld (as to some employ-

ees) a Justice Department testing plan that provided for ran-

dom testing and notice “on the same day, preferably within two

hours, of the scheduled testing.” 878 F.2d at 486 (interior

quotation omitted). The court noted:

Certainly the random nature of the OBD testing plan is a

relevant consideration and, in a particularly close case it is

possible that this factor would tip the scales. We do not

believe, however, that this aspect of the program requires

us to undertake a fundamentally different analysis from

that pursued by the Supreme Court in von Raab.

Id. at 489. This is particularly true in light of the FAA’s rea-

sonable conclusion that random testing without advance notice

will prove to be a greater deterrent that testing with advance

notice. [Pet. App. 12a-13a.] t

® See, e.g., Skinner, supra, 57 L.W. at 4330 (noting that it is a pre-

condition to a suspicionless search program’s validity that “privacy

interests implicated ... are minimal”) ; von Raab, supra, 57 L.W. at

4342-4348 n.2 (noting factors which “significantly minimize [test-

ing] program’s intrusion on privacy interests”); see also New

Jersey v. T.L.O., supra, 469 U.S. at 342 n.& (1985) (“exceptions to

the requirement of individualized suspicion are generaily appropri-

ate only where the privacy interests implicated are minimal”). See

generally supra at 9-11.

ee

17

trusiveness of particular programs might, at most, be

“relevant consideration[s] . . . in a particularly close

case.” Pet. App. 13a (quoting Harmon, 878 F.2d at 489).

Given this treatment, it is clear that the court below

did not give independent, reasoned consideration to the

substantial constitutional issues in this case: the court

instead assumed that those issues were decided sub silentio

in Skinner and von Raab.

B. This understanding of the decision below :s bolstered

by an examination of the D.C. Circuit decision upon which

the court below relied. For the Harmon decision is also

bereft of any serious analysis of the constitutional issues

presented by “random testing” programs, and a review

of Harmon makes unmistakably clear that the D.C. Cir-

cuit panel had assumed that those issues had already been

decided sub silentio by this Court.

Harmor began its discussion of “random testing” by

complaining that neither the Skinner nor von Raab case

stated a clear rule for distinguishing “legitimate drug-

testing programs . . . from illegitimate ones,” 878 F.2d

at 488, and by conceding that “(t]he invasion of privacy

occasioned by [random and repetitive programs] might

. be regarded as different in kind from the intrusion [s]

at issue” in Skinner and von Raab. Id. Indeed, the Har-

mon 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 rejected this possibility, stating

that “the Supreme Court has not encouraged the con-

struction of such a theory.” Jd. The principal basis

given for this conclusion was that in von Raab much

of the discussion of the need for minimizing the intru-

siveness of testing “was confined to a footnote.” Id.

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

Thus, the Harmon court, just like the court below,

failed tc independently assess the constitutional] ‘ssues pre-

sented by the “random testing” programs anc .astead as-

18

sumed that these issues were decided sub silentio in Skin-

ner and von Raab.

C. Unfortunately, the Ninth Circuit and D.C. Circuit

are not alone in their failure to confront the question

presented here. Their common method of approach—that

Skinner and von Raab should be read as broadly validat-

ing “random testing” programs—is the one that the

lower courts are routinely following.

For example, the Fourth Circuit, in Thomson v. Marsh,

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

curiam opinion which simply—and erroneously—stated

that in Skinner and von Raab “the Supreme Court de-

cided that random drug tests do not violate the Fourth

Amendment.” And the Seventh Circuit disposed of a sim-

ilar case by noting Harmon with approval. See, Taylor

v. O’Grady, 888 F.2d 1189, 1199-1200 (7th Cir. 1989) ."°

Obviously neither of these circuits engaged in the proper

independent assessment of these testing programs’ intru-

siveness into personal privacy; for these courts, the con-

stitutionality of such programs had already been decided

by this Court sub silentio.”

10 The Seventh Circuit’s Taylor decision does not actually reach

the specific issue of the validity of “random testing” programs

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

one in which each err~’»yee was required to submit annually to a

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

11 (a) The !aw in two other circuits, although not entirely clear,

also may rest on the premise that Skinner and von Raab settle the

constitutionality of “random testing.”

The First Circuit, in Guiney v. Roache, 873 F.2d 1557 (1st Cir.),

cert. denied, 110 S.Ct. 865 (1989) remanded a “random testing”

case to the district court for disposition in light of Skinner and

von Raab. Although the opinion’s wording does not state in so

many words that the “random testing” issue had been decided by

this Court, both parties seem to have construed the opinion us ho!d-

ing that further challenge on the issue was foreclosed by this Court’s

decisions. See Petition for a Writ of Certiorari, Guiney v. Roache,

19

For the reasons already given, supra pp. 8-14, the

judgment as to whether the Constitution permits wide-

spread, suspicionless, repetitive, unannounced and ran-

dom searches of the kind at issue here is one that should

be rendered after this Court has squarely confronted that

question; such search programs should not be permitted

to proliferate on the basis of lower court intuitions on

how far the Skinner and von Raab opinions were in-

tended sub silentio to extend. Fidelity to the Fourth

Amendment demands at least that these issues be con-

fronted 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 Ninth Circuit in this case.

No. 89-205; Respondent’s Brief in Opposition, Guiney v. Roache,

supra.

Similarly, the Sixth Circuit, in Penny v. Kennedy, F.2d

(6th Cir. No. 86-6280; October 4, 1990) (en banc), recently re-

manded two “random drug testing” cases to district courts for fur-

ther consideration in light of Skinner and von Raab. While the

majority opinion is open to more than one reading, two judges

within the majority stated tha‘:—although they believed that “ran-

dom testing” programs are unconstitutional—they also believed

that Skinner and von Raab had indeed validated such programs and

thus foreclosed any holding of unconstitutionality. Sez, id. (Martin

J. concurring) (“Despite my view that random drug testing violates

the fourth amendment, recent Supreme Court decisions [Skinner

and von Raab] clearly uphold the general constitutionality of ran-

dom drug testing’).

(b) In addition, the Third and Eighth Circuits have explicitly

upheld random testing programs, but had done so 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) (uphold-

ing “random testing” programs 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).

WALTER KAMIAT

LAURENCE GOLD

(Counsel of Record)

815 16th Street, N.W.

Washington, D.C. 20006

(202) 637-5390

GARY GREEN

JERRY ANKER

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for Air Line Pilots

Association

WILLIAM JOLLEY

204 West Linwood Boulevard

Kansas City, MO 64111

Counsel for Sheri Albert,

Charles McCune and

Independent Federation of

Flight Attendants

DEBORAH GREENFIELD

EDWARD J. GILMARTIN

1625 Massachusetts Ave., N.W.

Washington, D.C. 20036

Counsel for Association of

Flight Attendants

MICHAEL GOTTESMAN

GEORGE COHEN

MApy GILSON

1000 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for Association of

Professional Flight

Attendants and Independent

Union of Flight Attendants

STEPHEN P. BERZON

FRED H. ALTSHULER

MICHAEL RUBIN

177 Post Street, Suite 300

San Francisco, CA 94108

Counsel for Michael S. Bluestein

and Dean N. Chantiles

20

Respectfully submitted,

ALLISON BECK

OWEN HERRNSTADT

1300 Connecticut Ave., N.W.

Washington, D.C. 20036

Counsel for International

Association of Machinists and

Aerospace Workers

JAMES T. GRADY

GARY S. WITLIN

25 Louisiana Avenue, N.W.

Washington, D.C. 20001

Counsel for International

Brotherhood of Teamsters,

Chauffeurs, Warehousemen

and Helpers of America

LEE SEHAM

485 Madison Avenue

New York, NY 10022

Counsel for Richard S. Linn

Scott D. RAPHAEL

1900 Avenue of the Stars

Suite 2300

Los Angeles, CA 90067

Counsel for Orange County

Airport Association

ARTHUR M. LUBY

1300 L Street, N.W.

Washington, D.C. 20001

Counsel for Transport

Workers Union of America

LARRY MANN

400 First Street, N.W.

Washington, D.C. 20001

Counsel for Transportation-

Communications International

Union