Petition for Writ of Certiorari — Gonzalez v. Metropolitan Transportation Authority

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FILED

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CL 031142FEB 2 - 200

No. _______ GRICE OF THE Cue

In the

Supreme Court of the United States

S. DENISE GONZALEZ, an individual;

RuBeENn C. GONZALEZ, an individual,

Petitioners,

METROPOLITAN TRANSPORTATION AUTHORITY,

aka Southern California Rapid Transit District, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI

JAMES H. FosBINDER

Counsel of Record

RHONDA M. FosBINDER

FOSBINDER & FOSBINDER

A Law CorporaTION

415 Dairy Roan, Surre E #336

KauHuLul, HI 96732

(808) 244-1524

(808) 244-3971 Fax

Counsel for Petitioners

Becker Gallagher Legal Publishing, Inc.

800.890.5001

QUESTIONS PRESENTED FOR REVIEW

Did the majority of the panel below err when they decided

that it was not relevant to the safety sensitive balancing test to

consider the fact that more than 99.9% of each plaintiffs’

work time was spent at obviously non-safety-sensitive duties,

and the remaining tiny percentage of work time was spent on

duties which were only marginally safety-sensitive?

Is Plaintiff S. Denise Gonzalez’ job position in fact

“safety-sensitive”, as that term has been defined by the

United States Supreme Court, such that it is reasonable under

the Fourth Amendment to subject her to random (as opposed

to probable cause or reasonable suspicion) drug testing of her

urine, when as a bus dispatcher she in no way supercedes the

actual driver of the vehicle in controlling the movement of

buses, unlike metro rail operators, train dispatchers, or air

traffic controllers; for example, and furthermore testified that

in 17 years as a dispatcher, only 3-4 had ever been “life or

death emergencies”, in which case her only role was to

contact the appropriate authorities?

Is Plaintiff Ruben Gonzalez’ job position in fact “safety-

Sensitive” , as that term has been defined by the United States

Supreme Court, such that it is reasonable under the Fourth

Amendment to subject him to random (as opposed to probable

cause or reasonable suspicion) drug testing of his urine, when

his actual duties did not involve controlling buses with

passengers and he stayed in the office the vast majority of the

time doing administrative work?

Did the Ninth Circuit improperly apply the U.S. Supreme

Court’s precedents with regard to suspicion-less drug testing

to the facts of each Plaintiff's job position to reverse the

District Court’s conclusion on remand that the suspicion-less

testing of each Plaintiff was not reasonable under the Fourth

Amendment?

PARTIES TO THE PROCEEDING

The following, and no others, are parties to the instant

proceedings:

Petitioners S. DENISE GONZALEZ, an individual, and

RUBEN C. GONZALEZ, an individual, who were the

Plaintiffs and Appellees in the Ninth Circuit Court of Appeal.

Respondents are the METROPOLITAN

TRANSPORTATION AUTHORITY, aka Southern California

Rapid Transit District; JOSEPH E. DREW, in his official

Capacity as present Chief Executive Officer/General Manager

ana as an individual; FRANKLIN WHITE, in his official

capacity as past Chief Executive Officer/General Manager

and as an individual; RAY INGE, in his official Capacity as

present Director of Human Resources and as an individual;

and JERRY GIVENS, in his official capacity as past Director

of Human Resources and as an individual, who were the

Defendants and Appellants below.

The UNITED STATES DEPARTMENT OF

TRANSPORTATION and the FEDERAL TRANSIT

ADMINISTRATION are also Respondents, who were

Intervening Defendants and Appellants below.

Perm

ill

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...................

PARTIES TO THE PROCEEDINGS ............ i

YABLE OF CONTENTS .................... ii

TABLE OF AUTHORITIES .................. v

PETITION FOR WRIT OF CERTIORARI .........

I. CITATIONS TO OPINIONS BELOW ......... !

II. JURISDICTIONAL STATEMENT ...........

III. CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ................... 3

IV. STATEMENT OF THECASE ............. 4

V. REASONS FOR GRANTING THE PETITION .. 8

A. Introduction and Summary of Argument ..... . 8

B. The Appellate Panel Changed The Supreme

Court’s Balancing Test And Fundamentally Erred

In Balancing Appellees’ Protected Privacy

Interests With The Government’s Needs ..... . 10

C. The Appellate Panel Erred In Holding That The

Frequency Of Performing “Safety-Sensitive”

Tasks Is Irrelevant To The Supreme Court’s

ae 19

D. This Case Involves Matters of Wide Public

Re Pa aial'g 3 el nag aaa ate ee oe a 21

pee 2): ree eae 23

APPENDIX

Appendix A - Ninth Circuit Order Denying Rehearing

a ee ee ee nS ey ee la

Appendix C - District Court Proceedings re: Cross

Motions for Summary Judgment - 10/26/01 ..... 13a

Appendix D - District Court Order re: Preliminary

Injunction and Stay Pending Appeal - 12/12/01 .. . 34a

Appendix E - Minutes re: Mootness - 05/17/01 . . . 36a

Appendix F - Ninth Circuit Opinion - 4/14/99 ... 39a

Appendix G - District Court Order Granting

Defendant’s Motion to Dismiss - 10/21/96 ...... 56a

Appendix H - 49 U.S.C. § 5331 ............ 6la

Appendix I - 49 C.F.R. §§ 653.1 and 653.7 ..... 67a

TABLE OF AUTHORITIES

Cases

AFGE v. Cheney, 754 F. Supp. 1409 (N.D. Cal.

eee ey yee Pree er 10

AFGE Local 1533 v. Cheney, 944 F.2d 503 (9" Cir.

Ee bo are wacked ee bo ee ee ea ee 19

Bluestein v. Skinner, 908 F.2d 451 (9" Cir. 1990)

OCTET ee Se ree ee ee ee er ee eee 11

Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1925,

ES? 0.0. BO DEP CEST) ww nw ce eve sus 14, 15

City of Indianapolis v. Edmond, 121 S.Ct. 447, 148

iy: | re 10, 11

Gonzalez v. MTA, 174 F.3d 1016 (9" Cir.

ME 4 eka eee 1, 4, 8, 15

Int. Brotherhood of Electrical Workers v. Skinner, 913

Fae BO EEO so 5 ve hw wo bee ee 11

Int’l Brotherhood of Electric Workers v. U.S. Nuclear

Reg. Comm’n, 966 F.2d 521 (9" Cir. 1992) ... 20

Int. Brotherhood of Teamsters v. Dep’t of

Transportation, 932 F.2d 1292 (9" Cir. 1991) .. 11

Michigan Dept. of State Police v. Sitz, 496 U.S. 444

SN ke a-s Kek ee eae ree 11, 12

Olmstead v. United States, 277 U.S. 438 (1928) ... 18

National Treasury Employees Union v. Van Raab, 489

U.S. 656, 109 S.Ct.1384, 103 L.Ed.2d. 685

es 5 6 ah ee eee 12, 14, 15, 17, 18

Rushton v. Nebraska Pub. Power Dist., 844 F 2d 562

i Ow, TO oc. oe vas eatee eee 10

Skinner v. Railway Labor Exec. Ass’n, 109 S.Ct. 1402

ey ak co 8 8 Ce ae SA ti, 19

United States v. Kincade, 03 C.D.O.S 8835 (9" Cir.,

Se 5k a a els ae ae ee ae ee 10

Veronia School Dist. 47J v. Acton, 515 U.S. 646

reer Pere Pee ar ere ae ee 15

Constitutional and Statutory Provisions |

Ee. Ce” A gs 5s sk eens passim

1S. Comet. 10" Amd ck ci ce ete 3

3 Fa barr ere ee 2

ee RE a ek a eee 1

ge ae | ee eee l

Be Ws © UPR 6-0 se hd ews eke 1

ees Or 6 5 ve he hae wee eS l

es OO 6 ei ee es kee eee Sa 1

es Oe gk 8 os eee ea ee 4,7, 21

Regulations and Rules

kt Rf rr er ea ra er re 4

OE ca eke oa Ree 4

ers OE 6 od ye ca se bee eae ees 7,ae

ee es Ss i ea oe ek eS Re a 2

fe SS Pee eee ree err eee 2

2 ee ee eer ere ee ee er 1

Other Authority

Privacy, 77 Yale L. J. 475 (1968) ............ 12

Wa.

PETITION FOR CERTIORARI

Petitioners respectfully seek certiorari to review the

Memorandum filed by the Ninth Circuit Court of Appeals in

this matter on August 25, 2003. A Petition for Rehearing by

Appellees was denied by 2-1 vote on November 4, 2003.

CITATIONS TO OPINIONS BELOW

The August 25, 2003, Memorandum of the Ninth Circuit

Court of Appeal is unpublished, found at 73 Fed. tae 986,

2003 WL 22006014 (9" Cir. 2003).

The 1999 opinion of the Ninth Circuit Court of Appeal is

found at 174 F.3d 1016 (9" Cir. 1999). Neither district court

opinion was published.

II.

JURISDICTIONAL STATEMENT

The District Court for the Central District of California

had original subject matter jurisdiction pursuant to 28 U.S.C.

§§ 1331, 1343(a)(3) and (4), this being an action arising

under the federal constitution and laws, and under 28 U.S.C.

§§ 220land 2202, this being an action for injunctive and

declaratory relief.

The following orders and judgments have been entered in

this action since it was first filed in 1996:

1. The District Court granted Defendants’ Motion to

Dismiss pursuant to Fed.R.Civ.Proc. 12(b)(6) on October 21,

iia

1996, which Order was entered on October 22, 1996.

[Appendix G]

A Notice of Appeal of the October 22, 1996, Order was

timely filed on November 21, 1996.

2. On April 14, 1999, the Ninth Circuit Court of Appeal

entered an Opinion reversing the October 22, 1996, Order

and remanding the matter to the District Court. [Appendix F]

3. On May 18, 2001, the District Court entered an Order

finding that the claims of Plaintiff Denise Gonzalez were not

moot. [Appendix E]

4. On October 26, 2001, the District Court entered

summary judgment sua sponte in _ favor of

Plaintiffs/Petitioners and enjoined Defendants from applying

random drug testing to the Plaintiffs in the job positions

analyzed. [Appendix C]

5. On December 12, 2001, the District Court entered a

Permanent Injunction in favor of Plaintiffs/Petitioners as well

as a Stay Pending Appeal. [Appendix D]

Respondents herein appealed the District Court’s May 18,

October 30, and December 12, 2001 Orders, over which the

Ninth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291,

and Federal Rules of Appellate Procedure Rules 1, 4(a), final

judgment having been entered as to all claims and all parties.

6. The Ninth Circuit Court of Appeals entered its

Memorandum on August 25, 2003, reversing 2-1 the grant of

summary judgment to the Plaintiffs by the District Court,

although it did affirm the District Court’s ruling that Denise

Gonzalez’ request for injunctive relief was not moot.

[Appendix B]

Plaintiffs/Petitioners filed a Petition for Rehearing and

Request for Rehearing En Banc on October 9, 2003.

7. The Ninth Circuit denied that Petition and Request by

2-1 Order of November 4, 2003. [Appendix A]

III.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution:

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,

supported by Oath or affirmation, and particularly

describing the place to be searched, and the persons or

things to be seized.

The Fourteenth Amendment to the United States Constitution,

Section I:

Section 1. All persons born or naturalized in the

United States and subject to the jurisdiction thereof,

are citizens of the United States and of the state

wherein they reside. No state shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor shall

any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within the jurisdiction the equal protection of

the laws.

49 U.S.S.C. § 5331, Alcohol and Controlled Substances

Testing, United States Code Service (Lawyer’s Cooperative ~

Publishing, 1996):

[See, Appendix H, attached]

49 C.F.R. § 653.1 (Overview) and 653.7 (Definitions),

Michie’s Code of Federal Regulations (1996):

[See, Appendix I, attached]

IV.

STATEMENT OF THE CASE

This matter involves the application of U.S. Supreme

Court fourth amendment precedent to “random” (i.e.,

suspicionless) drug testing of certain transportation employees

under federal law, and a determination of what types of work

are in fact so “safety sensitive” as to override the right to

privacy and the right to be free from search and seizure

without probable cause. As stated in the federal regulations,

“Each employer must decide for itself whether a particular

employee performs any of the functions listed in this

definition.” 59 Fed. Reg. 7301, 7544 (1994) (emphasis

added); discussed in, Gonzalez v. MTA, 174 F.3d 1016, 1023-

24 (9" Cir. 1999).

Random drug testing is different from drug testing for

probabie cause or that based upon reasonable suspicion, and

therefore carries with it a far greater propensity for the

violation of one’s fundamental constitutional rights. Even

after over a decade of drug testing and analysis, there is no

evidence that random drug testing of allegedly “safety

sensitive” persons actually improves public safety.

According to the U.S. Dept. of Transportation, Federal

Transit Administration’s Drug and Alcohol Testing Results

1999 Annual Report, FTA-MA-26-5010-00-1, DOT-VNTSC-

FTA-00-06 (December 2000), for example, while reasonable

suspicion drug testing nationwide resulting in an average of

9.37% positive test results, random testing resulted in just 1%

positives, even though random testing was “by far the most

common test to be conducted, with 58.7% of all specimens

randomly collected by transit systems, followed by pre-

employment testing (25.9%). 1999 Annual Report, p. ES-2.

For alcohol testing, random testing nationwide produced

.09% positive results, while reasonable suspicion testing

produced an average of 6.27% positives. Out of

approximately 4,000' drug tests each year, approximately

3,200 of them being random, Defendant MTA has averaged

only 24 positive drug test results total.

At trial, the defendants could produce no evidence to

show that random drug testing is in any fashion effective to

improve public safety in the mass transit industry, defeating

one of the factors to be considered in determining the

constitutionality of random drug testing overall, not to

mention in particularized cases. From 1995-1999 for the

Defendant MTA, there were only two positive drug tests of

any type for a position even remotely similar to Ruben’s (Rail

Transit Operations Supervisor, as opposed to Ruben, who is

not involved with Rail operations), and none for Denise’s

" Plaintiffs do not know the total number of drug tests of all

types, only the number of positives for each type and the total

number of random tests.

position. In that same time period, there were no accidents

attributed by the Defendant MTA to either of their positions,

from any cause.

On April 18, 1996, Plaintiffs S. Denise Gonzalez and

_ Ruben C. Gonzalez (Gonzalez’) filed the instant action,

known as Gonzalez I, challenging the MTA’s random drug

test policy as applied to them. Plaintiffs have sought

injunctive and declaratory relief and damages against the

MTA and several employees responsible for implementing

and enforcing the MTA’s drug testing program, on the

grounds that the MTA’s classification of plaintiffs as “safety

sensitive”, the resultant testing of them without probable

cause, and the failure to screen them for the likelihood of

severe trauma as a consequence of being tested, violated their

civil rights under the United States and California

constitutions.

The Gonzalez’ are devout orthodox Catholics whose belief

in personal privacy and individual rights is fundamental. Both

worked or had worked for the MTA for over 20 years each,

with exemplary records. In the case of Mrs. Gonzalez, an

April 18, 1995, random urine test triggered a debilitating

psychological shock grounded in a history of child abuse for

which she had been treated in the past.

Mrs. Gonzalez was so traumatized at the time of the urine

test that she was required to remain at the medical center

where the test was performed for observation, and thereafter

required psychiatric treatment for over a year, during which

time she was unable to return to work (her constructive

discharge is the subject of a separate lawsuit). Mr. Gonzalez

has been tested repeatedly since the filing of the instant

complaint, over his objection. Both of the Gonzalez’ tested

negative.

Since the MTA chooses to accept federal funds, its drug

test policy was formulated pursuant to the federal Omnibus

Transportation Employee Testing Act of 1991 and regulations

thereunder, 49 U.S.C. § 5331; 49 C.F.R. Part 653-54

(hereinafter, “Omnibus Act”) [Appendix I]. Since the MTA’s

primary defense to the action is that the federal law mandates

their random testing of the instant Plaintiffs, and since the

wording of the MTA’s policy is nearly identical to that of the

Omnibus Act, Gonzalez I also consists of an “as applied”

challenge to the federal law.

The Gonzalez’ argue that the classification of their

particular jobs as safety sensitive cannot be justified and that,

although infrequent, reactions such as that of Mrs. Gonzalez

do occur, although no mechanism exists for screening

individuals such as themselves for actual propensity toward

severe and debilitating psychological shock and trauma as a

result of being testing without probable cause. Balancing the

governmental interest with the actual likelihood of harm from

Plaintiffs’ jobs results in the conclusion made by the trial

court in this matter, that random drug testing of Plaintiffs is

unreasonable because their jobs are not sufficiently “safety

sensitive” defined by the U.S. Supreme Court.

Pursuant to a motion to dismiss by Defendant MTA, the

Gonzalez’ complaint was initially dismissed on October 18,

1996, on the grounds that the MTA’s drug test was

presumptively constitutional because it was undertaken

according to the Omnibus Act. The Gonzalez’ appealed that

dismissal and on April 14, 1999, the Ninth Circuit reversed

and remanded the action to this Court for further proceedings,

stating that the district court “could not simply defer to the

administrative agency’s determination that dispatchers

perform a safety sensitive function”, but rather must hear

various kinds oi particularized factual evidence in order to

judge the reasonableness of the testing. Gonzalez v. MTA,

174 F.3d 1016 (9th Cir. 1999).

After having been ordered by the Ninth Circuit appellate

panel to conduct a balancing test based upon all the facts and

circumstances of the Gonzalez’ employment, the District

Court did so and then entered summary judgment in the

Gonzalez’ favor, finding that Plaintiffs’ jobs are not in fact

sufficiently “safety-sensitive” as defined by U.S. Supreme

Court precedent to warrant random testing. The Ninth Circuit

appellate panel reversed as to both Denise Gonzalez and

Ruben Gonzaiez, in a 2-1 decision, and denied the Gonzalez’

Petition for rehearing by the same 2-1 vote.

REASONS FOR GRANTING THE PETITION

A. Introduction and Summary of Argument

The Gonzalez’ contend that the reversal of the district

court by the appellate panel erroneously turns on the creation

by the appellate panel of an imaginary scenario in which the

Gonzalez’ jobs consisted entirely of always doing the most

dangerous thing either of them ever has to do at their job,

when in fact the most dangerous thing either of them ever has.

to do is done less than one hour per year for each’. In effect

the appellate panel turned the Supreme Court’s balancing test

into one of, “If a person were required to do the most

dangerous possible thing that their job entails for all of the

approximately 2000 hours per year that they work, then

would that job be safety sensitive?”

7 See, Answering Brief, pp. 12-22; ER- 66-68, 73-77, 88, 92,

105-107, 111, 115-118, 125-129, 441, 433; SER- 73-79, et al.

t MR a Se MON pe Le

This is the antithesis of the actual test promulgated by the

Supreme Court, which the Gonzalez’ contend was devised to

protect against just such a result. While the Supreme Court

has not required that an actual actuarial study by conducted

for each job position to determine the specific risk posed by

each employee’s total job duties, it has made it clear that the

balancing test is to be done in a rational manner.

While there are some rare job duties that are so hazardous

that even the briefest momentary lapse in concentration or a

corrupted decision may result in a disaster of such magnitude

that the job is intrinsically safety-sensitive, the Gonzalez’ jobs

are not among them. Nor or the Gonzalez’ at the

“intermediate” level of risk, where the overall risk in their

jobs is significantly higher than average, and the risk exists

during all of the employee’s working hours.

The job duties which generate the highest risk for the

Gonzalez’ are driving an empty bus (for Rubin), which he did

for less than one hour per year, if that, and handling the

exceedingly rare emergency call (for Denise), which

happened only 3-4 times in 17 years and even then all she had

to do was call the police or ambulance from a room with a

half-dozen other people. [See, Appendix F, Dissent.]

According to the evidence weighed by the trial court, the

percentage of each of the Gonzalez’ total work hours in which

their jobs were actually safety-sensitive under the relevant

definitions is approximately 1/10 of 1% (.1%) of their total

work hours.

__ For the appellate panel to hold that the percentage of time

the Gonzalez’ spent engaged in the higher risk job duties is

not a factor to be considered is simply illogical and defeats the

whole point of the Supreme Court’s balancing test. If the

appellate panel’s rendition of the test were to be applied to the

general public, anyone driving a car anywhere at anytime

could be randomly drug tested without probable cause, simply

because occasionally they are called upon to react to or avoid

an emergency situation, be it another car or a bunny in the

road.

B. The Appellate Panel Changed The Supreme

Court’s Balancing Test And Fundamentally Erred

In Balancing Appellees’ Protected Privacy Interests

With The Government’s Needs

Under the legal standard reiterated in AFGE v. Cheney,

754 F. Supp. 1409, at 1419 (N.D. Cal. 1990), relied upon by

the appellate panel, there must be a “markedly more

compelling government interest in an environment of

markedly reduced privacy expectations”. See also, United

States v. Kincade, 03 C.D.O.S 8835 (9" Cir., Oct. 2, 2003)

(DNA testing of inmates without probable cause violates

Fourth Amendment). One compelling interest is the

enhancement of public safety. But, as stated in AFGE v.

Cheney, “safety risks must be of sufficient magnitude for the

government to have a compelling interest in reducing them”.

The classic example is workers in nuclear power plants. See,

Rushton v. Nebraska Pub. Power Dist., 844 F 2d 562 (8" Cir.

1988). -

Thus to be reasonable under the Fourth Amendment, a

drug testing ordinarily must be based on individualized

suspicion of wrongdoing. See, City of Indianapolis v.

Edmond, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). While any

suspicionless drug testing in principle is unreasonable under

the Fourth Amendment, this principle weighs even heavier

with regard to random drug testing because random drug

testing lacks any nexus to any particular individual.

;

Under these principles, the U.S. Supreme Court in

Skinner v. Railway Labor Exec. Ass’n, 109 S.Ct. 1402, at

1419, 489 U.S. at 628 (1989) found compelling interests in

testing railway employees, including train operators, because

employees “discharge duties fraught with such risks of injury

to others that even a momentary lapse of attention can have

disastrous consequences” resulting in “great human loss”.

The 9" Circuit has echoed this language for example in

Int. Brotherhood of Electrical Workers v. Skinner, 913 F2d

1454, at 1463 (1990), where the Court determines “the

possibility of a catastrophic accident” into its balancing

analysis. Similarly, the Court found such “safety-sensitive”

work in cases of testing airline employees, see Bluestein v.

Skinner, 908 F.2d 451 (9" Cir. 1990), and cases of testing

professional truck drivers, who at virtually all times in their

work drive trucks weighing 26,000 pounds which may be

loaded with extremely hazardous substances. See, Int.

Brotherhood of Teamsters v. Dep’t of Transportation, 932

F.2d 1292, 1299 (9" Circuit 1991).

In a recent decision, the U.S. Supreme Court reiterated

the integrity of the need for probable cause, i.e.

individualized suspicion, in Fourth Amendment searches.

City of Indianapolis v. Edmond, 121 S.Ct. 447, 148 L.Ed.2d

333 (2000). In Edmond, the Supreme Court held that random

vehicle checkpoints whose primary purpose was the discovery

and interdiction of illegal narcotics via observation by officers

for signs of driver impairment and “particularized suspicion”

with respect to the stopped vehicle were unconstitutional in

violation of the Fourth Amendment.

Although in Edmond the Supreme Court affirmed the

validity of the Sitz decision in which the court upheid brief,

“25-second” stops to look for signs of drunkenness in drivers

in the interest of public safety, Michigan Dept. of State Police -

v. Sitz, 496 U.S. 444 (1990), it pointed out that the objective

intrusiveness of such a stop (unlike a urine test) was

extremely minimal. In the instant action, the providing of

bodily fluids containing information about a person’s entire

genetic makeup and physical well-being is the opposite of the

minimal 25-second car stop. “[I]n our culture the excretory

functions are shielded by more or less absolute privacy, so

much so that situations in which this privacy is violated are

experienced as extremely distressing, as detracting from one’s

dignity and self esteem.” Privacy, 77 Yale L. J. 475, 487

(1968), cited in Skinner, dissenting opinion, 489 U.S. at 646.

“There are few activities in our society more personal or

private than the passing of urine.” Van Raab, 816 F.2d at

175 (1987).

In the instant case there is no claim of individualized

suspicion, therefore the issue is whether or not the random

testing of Ruben and Denise is necessary to improve the

public’s safety, beyond the normal need for probable cause

testing. While some of the key factors, such as the drug

testing procedures utilized, weigh in the government’s favor,

the majority of them weigh in Plaintiffs’ favor so as to

support Judge King’s decision to grant summary judgment in

favor of Plaintiffs.

In reversing Judge King, the appellate panel had to

effectively change the test. Under the correct formulation of

the test, as stated by the Ninth Circuit in its previous ruling in

this case in 1999, it is necessary to consider all of the

following factors in light of the specific facts, as the trial

court properly did:

e whether either Plaintiff in fact “‘control[s] ...

movement’ of a bus” (Mrs. Gonzalez certainly

does not, Mr. Gonzalez drove an empty bus for

one hour in all of 1999 [ER-434-436]);

the physical risk to passengers if either were to be

impaired (none from either Plaintiff [ER-437]);

whether each is _ otherwise subject to

comprehensive physical exams (only Ruben is, just

once every two years [ER-430]);

whether their positions have traditionally been

subject to extensive safety regulation (“Neither

side presents evidence which indicates that bus

dispatchers or instructors have been subject to

extensive regulation for safety. Therefore,

Plaintiffs do not have a diminished expectation of

privacy due to regulation.” [Judge King’s Order,

p.3 @ ER-430));

whether they are performing primarily

administrative duties (as Ruben does [ER-435,

441)});

whether they have been shown to have a high

incidence of severe drug abuse in their positions

(They have not: “The government has not shown

why its interest in safety would be jeopardized by

requiring reasonable suspicion, as opposed to

suspicionless random testing of Denise and

Ruben” [ER-437]) or industry (“Defendants’

failure to document drug use among transit

employees does not preclude random drug testing,

it is merely another factor to consider.” [ER-

439});

whether the testing procedures would be

reasonably effective in determining if a person

were impaired (the random tests do not actually

determine impairment, according to discovery

from Appellants [SER-00008 1-95, 000113-119]);

whether the random testing of someone in the

particular positions in fact affects safety at all

(Plaintiffs assert that there is no evidence that

random testing positively enhances public safety in

terms of accidents at all, and Appellants admit that

there is no actual evidence that random testing has

improved public safety in over a decade of testing.

Judge King noted “Defendants’ failure to prove

that the testing at issue has improved safety”,

although he held that this failure did not preclude

testing. [ER-439]);

whether probable cause determinations would be

impractical, as in Skinner, because there is

difficulty in subjecting the employees to day to day

scrutiny (See, Chandler at 321, Van Raab, supra.)

(they would not, since both Plaintiffs work with

others and are closely observed. [ER-437, { 2]);

whether the tests as performed were an undue

invasion of privacy (the tests were performed in a

relatively low level of intrusiveness [ER-430-

431]); and

the Bayes Theorem problem affecting random tests

given to low incidence populations (according to

discovery responses only 1% of the MTA’s total

drug tests are positive, a low incidence rate,

DPN AMY

however no error iate was provided in discovery

responses)

Gonzalez v. MTA, 174 F.3d at 1021 - 1023; Skinner v.

Railway Labor Exec. Ass’n, 109 S.Ct. 1402, 489 U.S. at 628

(1989); Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1925,

137 L.Ed.2d 519 (1997); National Treasury Employees Union

v. Van Raab, 489 U.S. 656, 109 S.Ct.1384, 1399 - 1401,

103 L.Ed.2d. 685 (1989); Veronia School Dist. 47] v. Acton,

515 U.S. 646 (1995).

The appellate panel’s departure from the standard test

occurred in the appellate panel’s refusal to take into account

the actual exceedingly low percentage of time that the

Gonzalez’ have even a possibility of unusual impact on public

safety, and giving that unusual possibility vastly more weight

than any other factor or even all other factors combined.

In the pending case, any unusual possibility of a

catastrophic accident affecting the public is lacking. Even if

Denise Gonzales should have failed to properly make one of

the 3-4 emergency calls she had to do in 17 years at her job,

for example, this would not have disastrous consequences

similar to the consequences in the cited cases given the

myriad backup measures and her limited role in and control

Over any emergency. If an accident occurs in the street in

front of a person’s house 3-4 times in a 17 year period, and

that person fails to call 911, does that make them a public

safety hazard who should be drug tested?

Even when Ruben Gonzalez drives a bus, less than one

hour per year if that, he drives it without passengers and in a

limited area. 99.9% of the time he sits at a desk doing

paperwork when he is on the job. He fulfills an administrative

job that is not comparable with a commercial truck driver, a

pilot, or a nuclear power plant employee, and therefore it is

extremely improbable for him to create catastrophic accidents.

The Gonzalez’ jobs are simply not “safety sensitive”

within the meaning of that term as used by the United States

Supreme Court, regardless of the general definition delineated

by the Secretary of Transportation in the Code of Federal

Regulations. Plaintiffs do not engage in work that is more

dangerous to themselves or to others than the majority of the

American workforce, particularly those who commute to and

from work.

The possibility of a mistake by an air traffic controller

directing two 747’s onto the same runway at the same time is

real and the danger constant, rather than speculative, whereas

the bus drivers (not the instructors or dispatchers) control

their own destiny. Mistakes by any employee with access to

critical safety areas of nuclear power plants carry with them

the possibility of holocaust. A railway or subway dispatcher

has the ability to send trains loaded with hundreds onto the

same track heading directly toward each other, unlike bus

dispatchers, who do not actually direct the movement of the

buses but-can only suggest standard detours.

Plaintiff Gonzalez’ job is simply not comparable to those

~which the Courts have found to be so dangerous as to justify

taking away fundamental liberties. Compared with most

workers’ safety responsibilities, the Gonzales’ jobs seem quite

average. Virtually every job, even minimum wage jobs,

carry with them some responsibility, call for judgment, and

potential for emergency which if not met can have serious or

fatal consequences.

The individuals working at a fast food franchise have to

avoid selling undercooked meat lest, as has happened,

seh OR SRR Be ain LD EAL OE

pithy lea rraS Bitte! +

ie Sit Sissi GA BAT ih Sp EN lV i CANT AEB ER OG

hundreds are made ill and some killed by food poisoning.

The failure to properly clean the inside of a tank truck

previously used to carry uncooked eggs made tens of

thousands seriously ill when the ice cream concentrate carried

next in that truck became contaminated by salmonella

bacteria. Virtually every clerk or judge in the court system

could make a mistake that would set a murderer free. The

media brings us a constant stream of horrifying incidents. But

despite our desire for a perfectly safe world, these horror

stories do not justify taking away from every American

worker the full protection of the Fourth Amendment.

Plaintiff Gonzalez’ job duties as they have been conducted

for years simply do not rise to the level of immediate risk of

substantial public harm necessary to warrant the classification

of either of them as a safety-sensitive employee. It is not the

role of drug testing to be primarily symbolic of the national

interest in the war on drugs; the Fourth Amendment privacy

right invaded by random drug testing, in particular, is far to

great to allow such a situation. See, Skinner, 489 U.S. at

635, dissent by Marshall and Brennan. In the words of

Justice Scalia in his dissent to the Van Raab majority opinion:

An even more apt quotation from that famous

Brandeis dissent would have been the following:

“I]t is . . . immaterial that the intrusion was in aid

of law enforcement. Experience should teach us

to be most on out guard to protect liberty when the

Government’s purposes are beneficent. Men born

to freedom are naturally alert to repel invasion of

their liberty by evil-minded rulers. The greatest

dangers to liberty lurk in insidious encroachment

by men of zeal, well-meaning but without

understanding.” Olmstead v. United States, 277

U.S. 438, 479 (1928).

Those who lose because of the lack of understanding

that begot the present exercise in symbolism are not

just the Customs Service employees, whose dignity is

thus offended, but all of us - who suffer a coarsening

of our national manners that ultimately give the Fourth

Amendment its content, and who become subject to

the administration of federal officials whose respect

for our privacy can hardly be greater than the small

respect they have been taught to have for their own.

Van Raab, 489 U.S. at 687.

The appellate panel compared the plaintiffs’ duties, as

already stated above, to commercial truck drivers, flight

instructors and dispatchers, employees on gas pipelines and

even employees working at a nuclear power plant. It did not

determine the legitimate governmental interests concerning

the plaintiffs duties, and even went so far as to state that,

“past experiences do not determine whether an employee may

be called upon to perform a vital safety function more often

in the future”.

If the mere speculative possibility of future ‘vital safety

functions”, when it nas never occurred in the past, is enough

to override Fourth Amendment protections, what is the point

of the Fourth Amendment? Surely history is a far more

useful guide to determining the likelihood of certain events

than “the sky might fall” predictions based in no historical or

scientific fact whatsoever. The fact is that the nature of

plaintiffs’ duties have been defined both by their job

Da RBS 1 URS PSE SS IIR oh dae aa ART eal 6 a RO Ti a ON

descriptions and historical fact, and they only perform vital

safety functions as an exceedingly rare exception, and then

only arguably so, and thus such functions will never be a

stable characteristic of their duties and should not be used as

a basis for their random drug testing.

By declaring random drug testing constitutional in this

case, the appellate panel ignored that presumptively random

drug testing is unreasonable under the Fourth Amendment.

In doing so, it made the exception become the rule, which

means an undermining of fundamental constitutional rights.

C. The Appellate Panel Erred In Holding That The

Frequency Of Performing “Safety-Sensitive” Tasks

Is Irrelevant To The Supreme Court’s Balancing

Test

As mentioned, the appellate panel’s decision is largely

based on their opinion that the question of how frequently one

actually performs safety-sensitive tasks is irrelevant. This

Opinion is not based on any precedent beyond the Ninth

Circuit, and it is even then only valid in cases where the level

of “occasional dangerousness” is so unquestionably and

absolutely high that the issue of frequency loses its weight

when compared to the potential damage that could be caused

by a “momentary lapse”, for example. This does not fit in

the pending case.

In AFGE Local 1533 v. Cheney, 944 F.2d 503, 506 (9"

Cir. 1991), the Ninth Circuit stated that in cases of top secret

access Clearances the frequency with which one is likely to be

exposed to classified information is irrelevant. In the pending

case, neither of the Gonzalez’ is performing tasks similar to

having access to top secret information. Neither Appellee ever

reaches a similar level of dangerousness in his job.

In Int’! Brotherhood of Electric Workers v. U.S. Nuclear

Reg.-Comm,n, 966 F.2d 521, 526 (9" Cir. 1992), the court

upheld drug testing of all clerical workers at a nuclear power

plant. This was because of the workers’ diminished

expectation of privacy, the catastrophic nature of accidents,

and the Court’s inability to distinguish between those workers

who posed a real threat to the public and those who did not.

The Gonzalez’ do not have substantially diminished

expectations of privacy, neither of them can cause accidents

of catastrophic nature, and the Court does have enough

information to determine the extent of their threat to the

public, all unlike the nuclear power plant case, for example.

Furthermore, in /nt. Brotherhood of Teamsters, the Ninth

Circuit did show that the frequency of performing safety-

sensitive tasks is of course an important parameter in deciding

whether the government has a compelling interest in random

drug testing, contrary to its comments in the instant decision.

In that case the court upheld random drug testing on

commercial truck drivers because of the multitude of drivers

at any time:

While a single accident may not imperil as many lives

as a Single airline or train crash, the vast numbers of

drivers on the road at any given time multiplies the

danger to motorists and raises the FHWA’s concern

for transportation to the level of a compelling

governmental interest.

At the time of the decision it was estimated that three

million truck drivers would be tested under the FHWA’s

program. This is a multitude of drivers doing daily drives,

and therefore the court inherently recognized that the

frequency of their activities present a danger that is simply not

comparable to the case of the Appellees.

Lastly, the appellate panel wrote that, “If an injunction

were in place, neither could be tested regardless of how much

of an impact their job duties had on public safety.” The

Gonzalez’ contend that this is a uniquely frightening statement

in light of Fourth Amendment jurisprudence, and also

absolutely untrue.

First, if their job duties changed substantially from that

which they were for the past twenty years or so, an

improbable scenario, then grounds might exist for modifying

or dissolving the injunction. Ironically, however, a 2003

MTA Drug and Alcohol Program Bulletin provided to the

Gonzalez’ states that Denise Gonzalez’ job position of Transit

Operations Emergency Dispatcher has already been removed

from the safety-sensitive list, despite the MTA’s arguments

that it couldn’t possibly stop treating Emergency Dispatchers

such as Mrs. Gonzalez as safety sensitive due to the mandates

of federal law. Unless she can succeed in this appeal,

however, Mrs. Gonzalez’ seven years of litigation of this

matter will result in no actual benefit to her, even though her

previous job position is no longer randomly drug tested.

Second, the statement ignores the fact that this case is only

talking about random drug testing - of course they could still

be tested should there be any individualized suspicion or

probable cause.

D. This Case Involves Matters of Wide Public Concern

The class of employees to which each of the Gonzalez’

belong are defined by a federal law that applies to all

transportation workers nationwide. This matter involves the

intersection of the federal Omnibus Transportation Employee

Testing Act of 1991, 49 U.S.C. § 5331; 49 C.F.R. Part 653-

54, which lists certain types of transportation workers as

safety-sensitive, with the mandate of the federal regulations

promulgated thereunder: “Each employer must decide for

itself whether a particular employee performs any of the

functions listed in this definition.” 59 Fed. Reg. 7301, 7544

(1994) (emphasis added).

Prior to the appellate panel’s decision in this case, the test

to be applied in making the constitutional analysis, as stated

and restated by the U.S. Supreme Court, was relatively clear

and consistent. The Ninth Circuit in this case has modified

and largely ignored the parameters of the balancing test, and

prevented the Gonzalez’ from receiving the benefit of their

nearly eight years of litigation even though Mrs. Gonzalez’

position, for example, is no longer considered safety sensitive

by her prior employer.

The Ninth Circuit’s new rendering of the factors to be

considered in random drug testing cases deeply undermines

the very foundation of this Supreme Court’s protection of

Fourth Amendment constitutional rights.

VI.

CONCLUSION

The Gonzalez’ respectfully request that this Court review

the decision of the Ninth Circuit in this case and grant this

Petition for Writ of Certiorari.

Respectfully submitted this day of February, 2004.

FOSBINDER & FOSBINDER

A LAW CORPORATION

James H. Fosbinder

Counsel of Record

Rhonda M. Fosbinder

Attorneys for Denise and Ruben

Gonzalez, Petitioners

ree Pv ee

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 02-55037

[Filed Nov. 4, 2003]

S. DENISE GONZALEZ, an individual; et

al.,

Plaintiffs- Appellees,

METROPOLITAN TRANSPORTATION

AUTHORITY, aka Southern California

Rapid Transit District; et al.,

Defendants - Appellants.

Nee eee eee eee Se

ORDER

Before: BOOCHEVER, KLEINFELD, Circuit Judges, and

Tanner, Senior Judge.

Judges Boochever and Tanner vote to deny the petition for

rehearing. Judge Kleinfeld votes to grant the petition for

rehearing. Judge Kleinfeld votes to deny the petition for

rehearing en banc and Judges Boochever and Tanner

recommend rejection of the petition for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed.R.App. P. 35.

The petitions for rehearing and rehearing en banc are

denied.

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 02-55037

[Filed Aug. 25, 2003]

S. DENISE GONZALEZ, an individual; et

al.,

Plaintiffs - Appellees,

¥.

METROPOLITAN TRANSPORTATION

AUTHORITY, aka Southern California

Rapid Transit District; et al.,

Defendants - Appellants.

S. DENISE GONZALEZ, an individual; et

al.,

Plaintiffs - Appellees,

UNITED STATES DEPARTMENT

TRANSPORTATION; et al.,

Intervenors - Appellants,

METROPOLITAN TRANSPORTATION

AUTHORITY, aka Southern California

Rapid Transit District; et al.,

Defendants.

Appeal from the United States District Court

for the Central District of California

George H. King, District Judge, Presiding

Argued and Submitted July 24, 2003

Pasadena, California

MEMORANDUM’

Before: BOOCHEVER, KLEINFELD, Circuit Judges, and

TANNER, District Judge.”

In 1996, Denise and Ruben Gonzalez, employees of the

Los Angeles Metropolitan Transportation Authority

(“MTA”), challenged the constitutionality of random drug

and alcohol testing, seeking damages and declaratory and

injunctive relief. The district court dismissed their complaint

for failure to state a claim. We reversed and remanded.

Gonzalez v. MTA, i74 F.3d 1016, 1020 (9th Cir. 1999). On

remand, the district court granted summary judgment for the

Gonzalezes and entered a permanent injunction barring

random drug testing of Denise or Ruben. (Their claims for

declaratory relief and damages have been stayed in the district

* This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as provided by

Ninth Circuit Rule 36-3.

** The Honorable Jack E. Tanner, Senior United States District

Judge for the Western District of Washington, sitting by

, designation.

court pending this appeal.) The MTA and intervenors the

United States Department of Transportation appealed. We

review the district court’s grant of summary judgment de

novo, see Biodiversity Legal Found. v. Badgley, 309 F.3d

1166, 1175 (9th Cir. 2002), and we now reverse the district

court’s grant of summary judgment.

I. Mootness

The MTA argued that Denise’s request for injunctive

relief was moot because she left her job with the MTA in

1997 and moved to Arizona, where she and Ruben bought a

home in 2000 after selling their home in California. Ruben

continues to work at the MTA and divides his time between

Arizona and California. Denise testified that she would

“definitely” return to her job and move back to Los Angeles

to rent a home if her job became available to her and if the

random drug testing were ruled unconstitutional. [ER p. 335]

The district court found that Denise’s claim for injunctive

relief was not moot. We review de novo, see id. at 1173, and

we agree.

“[A] case is moot only where no effective relief for the

alleged violation can be given.” Forest Guardians v. U.S.

Forest Serv., 329 F.3d 1089, 1094 (9th Cir. 2003). “The

party asserting mootness has the heavy burden of establishing

that there is no effective relief remaining for a court to

provide.” Oregon Advocacy Center v. Mink, 322 F.3d 1101,

1116-17 (9th Cir. 2003) (quotations omitted). Although it is

close, we conclude that the MTA has not met that burden.

Denise’s sworn testimony is that she will return to California

if she can work at the MTA without being subject to random

drug testing. A permanent injunction against such testing

would be effective relief as to Denise. The MTA relies on

Monahan v. Nebraska, 687 F.2d 1164 (8th Cir. 1982), but in

that case the court found that a case regarding educational

placement was moot where parents had sued on behalf of a

child who had turned eighteen, married, left the defendant

school district, and stopped attending school altogether. Her

vague statement that she would return to the district to pursue

her education, without an indication of when this would

occur, made her return “speculative” and her case moot. Id.

at 1168. In this case, Denise has unequivocally testified that

she will move back to California and seek to return to her job

if she will not be subject to random testing.

II. Random drug testing

Federal regulations issued under the Omnibus

Transportation Employee Testing Act of 1991, 49 U.S.C.

§ 5331, require random testing of mass transit employees in

“safety-sensitive functions,” including anyone who operates

a “revenue service vehicle” such as a city bus, including

Wwhen—not in service, or who “[c]ontrol[s] dispatch or

movement of a revenue service vehicle.” 49 C.F.R. § 655.4.

Under these regulations, the MTA tested Denise, a bus

dispatcher, and her husband Ruben, a~“transit operations

supervisor/instructor.” Our prior decision reversed the district

court’s dismissal of the Gonzalezes’ challenge to the testing,

and remanded their claim that the tests violated their rights

under the Fourth Amendment, because we did not have

sufficient information regarding what the Gonzalezes’ jobs

entailed or the effectiveness and privacy of the testing

procedure. See id. at 1024.

On remand, the district court considered the three factors

that must be balanced when evaluating “special needs” drug

testing: (1) the nature of the privacy interest involved; (2) the

character of the intrusion; and (3) the “nature and immediacy”

of the government’s need for testing and the efficacy of the

testing for meeting it. See Vernonia Sch. Dist. v. Acton, 515

U.S. 646, 657-60, 115 S. Ct. 2386, 132 L. Ed. 2d 564

(1995). The court found that Ruben had a slightly diminished

expectation of privacy, although Denise did not, and that the

tests were performed in the least obtrusive way possible and

were quite reliable. The only remaining issue was whether the

safety aspects of the Gonzalezes’ jobs justified the intrusion

on their Fourth Amendment rights.

It was not disputed that the Gonzalezes’ job descriptions

called for them to perform, or to be ready to perform, safety-

sensitive duties, and the Gonzalezes do not argue that their job

descriptions were inaccurate. Denise’s dispatch duties

included responding to emergencies and calling the police

when necessary. Ruben was required to hold a commercial

drivers’ license with an endorsement allowing him to carry'

passengers, and to be prepared to drive a bus under a variety

of circumstances. Nor was it disputed that they had been

called upon to perform those duties in the past. Nevertheless,

the court granted the Gonzalezes’ cross-motion for summary

judgment and granted the request for a permanent injunction

against their testing, holding that because the Gonzalezes had

only infrequently performed some of their safety-sensitive

duties, their jobs had only a “minimal” impact on safety and

the intrusion on Fourth Amendment rights could not be

justified.

This result cannot be squared with our precedent. This

court has upheld as constitutional random drug testing of

employees who may be called upon to perform safety-

sensitive tasks, regardless of frequency. In Int’1 Bhd. of Elec.

Workers, Locai 1245 v. United States Nuclear Reg. Comm’n,

966 F.2d 521, 526 (9th Cir. 1992) we upheld random testing

of clerical workers in protected areas of a nuclear plant where

their union could not establish that workers “did not engage

in any safety-sensitive work” (emphasis added). It was enough

that “at least some” of the workers entered vital areas and

“may have safety-related responsibilities.” Id. In AFGE

Local 1533 v. Cheney, 944 F.2d 503, 506 (9th Cir. 1991), we

upheld the random testing of engineers who were required to

hold top secret access clearances, even though they might not

ever actually handle classified information. “Holding the

security clearance provides access enough ... Considerations

of other characteristics of the employees’ jobs, including the

frequency with which the employees are likely to be exposed

to classified information, are irrelevant.” Id. at 506, 509.

The government has a compelling interest in “ensuring the

sobriety and fitness of operators of dangerous

instrumentalities or equipment.” Int’! Bhd. of Teamsters v.

Dept. of Transp., 932 F.2d 1292, 1304 (9th Cir. 1991)

(upholding random drug testing of commercial truck drivers);

see also Bluestein v. Skinner, 908 F.2d 451, 457 (9th Cir.

1990) (upholding FAA regulations requiring random drug

testing of flight instructors and dispatchers); Int’l Bhd. of

Elec. Workers, Local 1245 v. Skinner, 913 F.2d 1454, 1458

(9th Cir. 1990) (upholding random testing of all employees

engaged in operations, maintenance, or emergency response

functions on gas pipelines).

We have never found random drug testing of employees

who perform safety-sensitive functions to be unconstitutional.

The Gonzalezes admit that their job descriptions require them

to be prepared to perform safety-sensitive functions, and

admit that they have performed safety-sensitive functions in

the past. They nevertheless argue that their job history shows

that they seldom performed these functions, and that therefore

they cannot constitutionally be tested. As we said in Cheney,

however, frequency is irrelevant. See 944 F.2d at 509. This

is particularly true when we are asked to examine an

individual worker’s job history. The Gonzalezes sought an

injunction against future testing, based on the infrequency of

their past safety-sensitive activity. But past experience does

not determine whether an employee may be called upon to

perform a vital safety function more often in the future.

Denise may encounter more frequent emergencies requiring

her dispatch services; Ruben may be required to drive a bus

more often. If an injunction were in place, neither could be

tested regardless of how much of an impact their job duties

had on public safety.

The district court also concluded that Denise’s work

conditions kept her around other workers and under a

supervisor, so that any drug or alcohol use would be readily

observable without testing. We have held, however, that

““The heavy supervision of workers does not negate the need

for other mechanisms to prevent accidents.’” IBEW_v.

USNRC, 966 F.2d at 527 (quoting IBEW v. Skinner, 913

F.2d at 1460 n.14).

The Gonzalezes also argue that there is no evidence of a

drug or alcohol problem in the transit industry. The Supreme

Court, however, “has not required a particularized or

pervasive drug problem before allowing the government to

conduct suspicionless drug testing.” Bd. of Ed. of Ind. Sch.

Dist. No. 92 v. Earls, 536 U.S. 822, 835, 122 S. Ct. 2559,

153 L. Ed. 2d 735 (2002).

We reverse the grant of summary judgment, and we

remand to the district court to grant summary judgment in

favor of the MTA on the Gonzalezes’ claims for injunctive

and declaratory relief and damages.

REVERSED AND REMANDED.

10a

KLEINFELD, Circuit Judge, dissenting:

I respectfully dissent.

In response to our remand of Mr. and Mrs. Gonzalez’s

cases, the district court did exactly what we asked it to do: it

carefully balanced the search’s intrusion on the individuals’

Fourth Amendment interests against the search’s promotion

of legitimate governmental interests.' The district court

ultimately determined that the random drug testing was

unreasonable as applied to these two individuals, and thus

violated their Fourth Amendment rights. The question is

close, but I would accept the measured judgment of the

district court.

As a dispatcher for the MTA, Mrs. Gonzalez had no

lowered expectation of privacy, and her position could hardly

be called “safety-sensitive.” Buses do not fly, so even though

she may give directions, there is not the kind of safety risk

that there would be if she were an air traffic controller. She

sits in a room with other people and answers phone calls. As

for receiving calls, only three or four times in 17 years did

she have to respond to any kind of emergency. When an

emergency did occur, her sole responsibility was to call the

police or ambulance. In this function, her work is no more

safety sensitive than that of a desk clerk at a hotel or a

' As we instructed, the district court considered the following

factors: “(1) the nature of the privacy interest upon which the

search intrudes; (2) the character of the intrusion; (3) the

immediacy of the government concern and the efficacy of the

search for meeting it.” Gonzalez v. Metro. Transp. Auth., 174

F.3d 1016, 1021-22 (9th Cir. 1999) (citing Vernonia Sch. Dist. v.

Acton, 515 U.S. 646, 654-64, 115 S. Ct. 2386, 132 L. Ed. 2d 564

(1995)).

lla

receptionist at an office. Additionally, she worked in a room

full of other dispatchers who would likely see the effects of

drug abuse and be able to step in during an emergency, if

needed.

Although a closer case, Mr. Gonzalez’s job as a bus driver

supervisor similarly lacks the kind of impact on safety needed

to justify the intrusion of a random drug test. He sits at a desk

and works with paper, as we do. When he drives MTA

vehicles, he does so in order to get to job sites or test

equipment, not to carry passengers. His job description calls

for him to be prepared to drive a bus under a variety of

circumstances, but he has almost never been required to do so

during his lengthy career with the MTA. As a practical

matter, his job is no more safety sensitive than the general run

of administrative jobs.

We have upheld random drug testing of employees who

may be called upon to perform safety-sensitive tasks, despite

a lack of frequency, but only where the level of dangerousness

was extraordinarily high. In International Brotherhood of

Electrical Workers, Local 1245 v. United States Nuclear

Regulatory Commission, we upheld drug testing of all clerical

workers at a nuclear power plant based on the workers’

diminished expectation of privacy in a heavily-regulated

industry, the catastrophic nature of accidents that could occur

at a nuclear plant, and “our inability to distinguish between

those clerical workers who pose a real threat to public safety

and those who do not.”* Likewise, in AFGE Local 1533 v.

Cheney, we held that engineers working for the Navy who

were subject to random testing had a diminished expectation

of privacy because of the intrusion they faced im the extensive

? 966 F.2d 521, 525-26 (9th Cir. 1992).

12a

background check required to get top secret clearance.’ This

lowered privacy interest justified an intrusion even where the

engineers were unlikely to access top secret information. We

held that “a person with a top secret clearance generates

sufficiently grave potential risk to national security to make

the decision to conduct random urinalysis testing reasonable

regardless of any other attendant circumstances.”*

These cases do not mean, however, that infrequency is

irrelevant in every case; it is merely one consideration in the

balancing test. The unlikelihood that the Gonzalezes will be

required to do something that impacts public safety is

particularly relevant here for the lack of other reasons

justifying an intrusion into their privacy. Although the MTA

has a legitimate interest in testing employees in safety-

sensitive positions, we must guard against so lax an

interpretation of “safety sensitive” that all employees of all

kinds can, by reasons of expansive but largely imaginary job

descriptions, be required to urinate for testing. I agree with

the district court that the record demonstrates that these

particular MTA employees are not situated to pose a

substantial immediate threat to public safety. Bus dispatchers

and administrators pose no risk of nuclear meltdowns or

national intelligence breach.

Like the district court below, I would hold that the

expectation of privacy that the Gonzalezes have in their jobs

is not outweighed by the slight impact their jobs could have

on public safety, and that random drug testing violates their

Fourth Amendment rights.

* 944 F.2d 503, 505, 507 (9th Cir. 1991).

* Id. at 506 (citations omitted) (emphasis in original).

APPENDIX C

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 96-2785-GHK(AJWx)

[Filed Oct. 26, 2001]

S. Denise Gonzalez, et al.,

Plaintiffs

¥.

Metropolitan Transportation Authority, et al.,

Defendants

A a a a

DOCKET ENTRY

PRESENT: Hon. George H. King, United States District

Judge

PROCEEDINGS: _Cross-Motions for Summary

Judgment

This matter is before the court on the above-titled

motions. After fully considering the briefs and papers

pertaining to this matter, hearing oral argument from counsel

on April 23, 2001, and reviewing the parties’ post-hearing

briefs, we rule as follows:

13a

l4a

I. Background

Plaintiffs S. Denise Gonzalez (“Denise”) and Ruben C.

Gonzalez (“Ruben”) filed their complaint on April 18, 1996

against the Metropolitan Transportation Authority (“MTA”)

and various MTA officials under § 1983. On October 18,

1996, Judge Ideman granted Defendant MTA’s motion to

dismiss with prejudice. On appeal, the Ninth Circuit reversed

and remanded on April 14, 1999. After the Ninth Circuit’s

remand, the parties eventually stipulated that the Department

of Transportation (“DOT”) and the Federal Transit

Administration (“FTA”) be made defendant-intervenors, and

the case was assigned to this court. Defendants move for

summary judgment. We converted this motion into cross-

motions for summary judgment at the April 23,2001 hearing

and pursuant to our May 17, 2001 order, allowed Defendants

more time to file any additional opposition.

II. Legal Standard

Summary judgment is appropriate “if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(c) . On a motion for summary judgment, the moving party

has the burden of demonstrating that there is no genuine issue

of material fact, and that it is entitled to judgment as a matter

of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986). However, on claims where a moving party bears the

burden of proof at trial, that party must make an affirmative

showing sufficient for the court to hold that no reasonable

trier of fact could find other than for that party. Calderone v.

U.S., 799 F.2d 254, 259 (6th Cir. 1986). In other words, that

* in

party must establish beyond controversy every essential

element of its claims. Fontenot v. Upjohn Co., 780 F.2d

1190, 1194 (Sth Cir. 1986). On claims where the moving

party does not bear the burden of proof at trial, its burden is

met by showing that there is an absence of evidence to support

the non-moving party’s case. See Celotex Corp. v. Catrett,

477 U.S. 317, 325-26 (1986). We presume that the non-

moving party’s version of any disputed issue of fact is correct.

See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

809 F.2d 626, 630-31 (9th Cir. 1987).

III. Analysis

Federal regulations require random drug testing of mass

transportation employees who engage in “safety-sensitive

function[s],” including operating a revenue service vehicle,

even when not in revenue service, or controlling the dispatch

Or movement of a revenue service vehicle. 49 C.F.R.

§ 655.4. Denise controls the dispatch of revenue service

vehicles. Ruben is sometimes required to operate a revenue

service vehicle. Therefore, under the regulations both

Plaintiffs perform safety-sensitive functions and are subject to

random drug testing. As the Ninth Circuit stated, “[t]he only

serious question is whether the regulations are constitutionally

permissible as applied to” Plaintiffs. Gonzalez, 174 F.3d at

1019.

It is clear that a urine drug test is a search within the

meaning of the Fourth Amendment. Skinner v. Ry. Labor

Executives Ass’n, 489 U.S. 602, 617 (1989). The issue, then,

is whether these searches are reasonable under the Fourth

Amendment. See Chandler v. Miller, 520 U.S. 305, 313

(1997). While a search must ordinarily be based upon a

warrant or at least individualized suspicion, an exception

exists for searches based on “special needs beyond the normal

l6a

need for law enforcement.” Id. (citation and internal

quotation marks omitted). Here, the government has an

interest in safety, which is a need unrelated to law

enforcement. Reasonableness, then, is “judged by balancing

the search’s intrusion on the individual’s Fourth Amendment

interest against its promotion of legitimate governmental

interests.” Gonzalez v. Metro. Transp. Auth., 174 F.3d 1016,

1021 (9th Cir. 1999). Gonzalez, citing Vernonia School Dist. —

v. Acton, 515 U.S. 646 (1995), laid out the factors to

consider: (a) the nature of the privacy interest upon which the

search intrudes; (b) the character of the intrusion; and (c) the

immediacy of the government concern and the efficacy of the

search for meeting it. Gonzalez, 174 F.3d at 1021-22.

A. The Nature of the Privacy Interest

As to the nature of the privacy interest, the Ninth Circuit

noted that it was unclear whether Plaintiffs were subject to

comprehensive physical examinations or if bus dispatchers or

instructors have traditionally been subject to extensive

regulation for safety. Gonzalez at 1022. Neither side presents

evidence which indicates that bus dispatchers or instructors

have been subject to extensive regulation for safety.

Therefore, Plaintiffs do not have a diminished expectation of

privacy due to regulation.

Ruben, unlike Denise, is subject to periodic medical

examinations in order to keep his commercial driver’s license.

He must undergo a physical examination every two years, and

must submit a urine sample for drug testing. Gil Decl. { 35;

Ruben Dep. 80-81. The physical exam tests his eyesight,

blood pressure, and heart. Ruben Dep. 80-81. MTA uses the

same contracted labs and procedures for the periodic testing

as for the random drug testing. Gil Decl. ¢ 35. Ruben is

required to have this commercial license as part of his job.

17a

Ruben’s medical exam is not as broad as that required of

commercial truck drivers in Int’l] Bhd. of Teamsters v.

DOT,932 F.2d 1292 (9th Cir. 1991) . But Ruben does submit

to urine drug tests. Therefore, Ruben does have a somewhat

diminished expectation of privacy, even if not as great as that

of commercial truck drivers.

B. The Character of the Intrusion

The Ninth Circuit could not evaluate the character of the

intrusion because the testing procedures were not clear.

Gonzalez, 174 F.3d at 1022. As it turns out, these same testing

procedures have previously been found to “carefully delimit

the extent of the intrusion on individual privacy.” Int’] Bhd.

of Teamsters v. DOT, 932 F.2d 1292, 1299 (9th Cir. 1991)

(involving drug testing by order of Federal Highway

Administration which incorporates the Department of

Transportation’s drug testing procedures) .

In brief, the testing procedures are as follows: Employees

are randomly selected for testing. Gil Decl. ¢ 10; 49 C.F.R.

§ 655.45(e)-(f). Urine samples are collected by medical

professionals or others who have received proper training. 49

C.F.R. § 40.121. Urination occurs in a separate stall, room,

or other partitioned area. Id. §§ 40.41, 40.63(d)(1), 40.67,

40.69. Direct observation of urination occurs only in narrow

circumstances, such as where a particular employee has

previously presented a sample outside of the normal

temperature range or if a laboratory has determined that the

last sample was diluted. Id. §§ 40.41, 40.63(d) (1), 40.67(a)

(1), (c) (3). The records are protected and may only be

disclosed in narrow circumstances. Plaintiffs’ testimony

confirms that the actual procedures are consistent with the

regulations. Denise Dep. 73-82; Ruben Dep. 91-96.

18a

In Vernonia, the students provided samples at either a

urinal (male students) or enclosed stall (female students) with

monitors in the bathroom. 515 U.S. 646, 658 (1995). The

Court found that “[t]hese conditions are nearly identical to

those typically encountered in public restrooms, which men,

women, and especially schoolchildren use daily. Under such

conditions, the privacy interests compromised by the process

of obtaining the urine sample are in our view negligible.” Id.

The testing procedures at issue here provide a similar level of

privacy, and indeed, Plaintiffs state in their opposition that

“the tests were performed in the least intrusive way that such

an intrusion could be performed.” Opp’n at 17.

C. The Immediacy of the Government Concern and

Efficacy of the Search

As to the nature of the governmental concern, the Ninth

Circuit thought that it was unclear how testing dispatchers and

instructors affects safety. Gonzalez, 174 F.3d at 1022.

Another concern was whether the test was reasonably

designed to catch drug users. Id. The court was also

concerned with “the Bayes’ theorem problem” which involves

the reliability of a drug test where there is a low incidence of

drug use in the tested population. Id. at 1023.

1. Government Concern

The government concern at issue is safety. The Ninth

Circuit did not know “how testing employees in the positions

at issue, instructor and dispatcher, affects safety” because it

was not clear “what they do, and how being under the

influence of alcohol or drugs when they do it might affect

safety.” Id. at 1022. We must consider how each Plaintiff’s

job duties affect safety, including the frequency with which

each performs safety-sensitive functions. Defendants argue

19a

that so long as an employee’s job requires the performance of

a safety-sensitive function as needed, the government concern

is sufficient to warrant drug testing. We disagree, and the

cases cited by Defendants do not compel such a sweeping

rule.

In AFGE Local 1533 v. Cheney, 944 F.2d 503 (9th Cir.

1991), certain Navy employees holding Top Secret with

Access security clearances challenged random drug testing,

arguing that they were seldom, if ever, exposed to top secret

information. Id. at 504-506. The court ruled that this

argument “proves too much” as it called into question the

determination that these employees needed such clearance,

which was not challenged by the employees. Id. The court

concluded that “[a] person with top secret clearance generates

sufficiently grave potential risk to national security” to make

drug testing reasonable. Id. (citing Hartness v. Bush, 919

F.2d 170, 172 (D.C. Cir. 1990)). The AFGE plaintiffs had

access to top secret information which is defined as

information “the unauthorized disclosure of which reasonably

could be expected to cause exceptionally grave damage to the

national security.” Id. at 504 (citations omitted). Even one

error by a drug-influenced individual with top secret security

access could result in exceptionally grave damage to national

security. But an error by Plaintiffs cannot reasonably be

expected to cause such damage, and so the governmental

interest in drug testing here is much lower than in AFGE.

For similar reasons, Rushton v. Neb. Pub. Power Dist.,

844 F.2d 562 (8th Cir. 1988), a pre-Skinner decision

involving employees who sometimes work at a nuclear power

plant, is fundamentally different because the harm caused by

an accident at a nuclear power plant is far greater than that

potentially caused by Plaintiffs.

20a

Defendants also point to Am. Fed’n of Gov’t Employees

v. Roberts, 9 F.3d 1464 (9th Cir. 1993), where the court

upheld random drug testing of Federal Bureau of Prisons

(“Bureau”) correctional employees because of _ the

government’s strong interest in preventing drug use among

prisoners. Id. at 1467. Drug use by inmates leads to

disruptive behavior, interferes with the rehabilitative process,

and lowers public regard for Bureau officials. Id. The Bureau

implemented random drug testing to detect drug smuggling by

correctional employees into prisons. Employees who uses

illicit drugs are more likely to take advantage of their contact

with prisoners to smuggle drugs than those who do not. The

correctional employees subject to testing had “the opportunity

for contact with prisoners” on a daily or weekly basis for

periods of one hour or more. Id. at 1466, 1468. In addition,

employees who smuggle drugs can “reasonably be expected

to have frequently” become drug users themselves. Id. at

1466. Smuggling drugs also allowed users to generate income

and sustain their drug habit. Id. at 1467.

Plaintiffs’ job functions provide few opportunities and no

incentive to engage in conduct that presents a significant

safety concern in the event they are under the influence of

drugs. Unlike the regular and extended contact with prisoners

in Roberts, Plaintiffs’ job functions infrequently place them in

positions where they can affect safety: Denise answered only

three or four true emergency calls in a seventeen-year career;

~ Ruben rarely drove a revenue service vehicle. Moreover, a

correctional officer who uses drugs has an incentive to

smuggle; MTA employees in Plaintiffs’ positions who use

drugs have no additional incentive to ignore emergency calls

or become involved in automobile accidents. Therefore,

Plaintiffs do not pose the same immediate risk to safety as

prison employees who can take advantage of direct contact

with prisoners.

21a

Finally, Defendants point to FTA regulations which

provide that an employee is “performing” a safety-sensitive

function if “he or she is actually performing, ready to

perform, or immediately available to perform such functions.”

49 C.F.R. § 655.4; Defs.’ May 29, 2001Supp. Memo. at 3,

n.l. We agree that the FTA regulations require that Plaintiffs

be tested as they both perform, or are ready to perform,

safety-sensitive functions. However, we must determine

whether these regulations, as applied to Plaintiffs, violate the

Constitution.

We also note that, contrary to Defendants’ assertions,

-consideration of the frequency of the performance of certain

duties is not unworkable. The constitutionality of a drug

testing regime does not depend upon the duties performed by

a particular employee in a particular week. The

constitutionality does not change in a particular week because,

for example, Denise does or does not receive an emergency

call. We look to the job as a whole. We focus upon Denise

and Ruben’s testimony regarding their own job duties in this

case because Defendants provided the court with no other

evidence of Plaintiffs’ job duties.

Accordingly, while the government has a legitimate

interest in promoting safety, we must consider the Plaintiffs’

job duties, including the frequency or infrequency with which

they perform safety-sensitive functions, when evaluating the

strength of the government concern.

2. Plaintiff’s Job Duties

The regulations at issue define “safety-sensitive function”

as, among other things, “[o]perating a revenue service

vehicle, including when not in revenue service” or

“[{cjontrolling dispatch or movement of a revenue service

22a

vehicle.” We consider only Plaintiffs’ job duties that fall

within these regulations.

a. Denise

Denise was a Transit Operations Supervisor in

Communications in the Bus Control Center. Her job as a

dispatcher was primarily to maintain service. Denise Dep.

13:15. The dispatchers sit together in a room at separate

consoles, but are very close to each other. Id. at 15-17. Calls

would come in as lights on their screens. On a priority call,

the bus driver would push a special button so that it would

blink on the dispatcher’s screen. Id. at 17:2-5. Consequently,

the dispatchers must be “constantly monitoring to make sure

that we didn’t miss a blinking - you know, a blinking call.”

Id. at 16:16-17. There are two to fourteen dispatchers, and

they can hear each other on calls, sometimes making it hard

to hear. Id. at 22. An individual supervising the dispatchers

is usually present. Id. at 28. Multiple calls could come in at

any time, even multiple priority calls. Id. at 32. Written

procedures outline how dispatchers should handle different

emergencies. Id. at 56-57. Denise testified that she would call

the police, on average, five or six times per week,' but that

this would include calls about “non-trans” related events such

as “drunks using vehicles to crush alum cans.” Id. at

corrections, page 104-05. She would also have to call an

ambulance about the same number of times or less, but again

mostly “non-MTA related events.” Id. She testified that she

had actual emergencies only three or four times in her entire

seventeen-year Career as a dispatcher. Id. at 94:10.

' She originally said five or six times per month, but replaced

“month” with “week” on her correction sheet. Her description of

these calls as “non-trans” or “non-MTA” was also written on the

correction sheet.

23a

b. Ruben

Ruben was classified as both Transit Operations

Supervisor (“TOS”) - Instructor and TOS-Vehicle Operations

Supervisor, performing duties for both positions. For both

positions, Ruben is sometimes required to drive an MTA car

or van. For example, as a Vehicle Operations Supervisor,

Ruben drives a car or van for approximately four hours per

day. As an Instructor, Ruben would investigate customer

complaints and accidents approximately once a month by

driving to the site in an MTA car or van. Under the

regulations, however, driving a car or van is not considered

safety-sensitive. 49.C.F.R. § 655.4. Therefore, we do not

consider such activities in our analysis. We focus only upon

those job functions which are safety-sensitive, namely driving

a bus. Ruben testified that, between January 5, 1999 and

January 5, 2000, he drove a bus for less than one hour. Ruben

Decl. 4 5.

TOS-Instructors perform many duties, which apparently

vary according to seniority and bidding. Ruben testified that

as an Instructor, he “stayed in the office the majority of the

time by doing the administrative work for the new employees

that were released to us from the training center.” Ruben

Dep. 25:2-3. His duties in this function were, then, primarily

administrative. As an Instructor, Ruben could be required to

drive a bus along a new route, drive a bus to a special

program, or drive an undamaged bus away from the scene of

an accident. Id. at 21:1-9, 59:16-60:4. Instructors may also

be required to work at the training center, demonstrating bus

driving to new students. Id. at 17:18-25.

Ruben trained new drivers only for part of 1992 because

he “had to be qualified in every aspect of the function.” Id.

at 40:2-3. Training new drivers involves taking them out in

24a

buses, showing them the bus controls, and giving them a

chance to drive the bus. Id. at 42-43. He did not train new

drivers other than in 1992. Id. at 40:1-5. On one occasion as

an Instructor, Ruben drove an empty bus to test a new seat

that drivers were complaining about. Id. at 61:4-22.

Ruben could be required to drive a bus as a Vehicle

Operations Supervisor if, for example, an operator became ill

or there was an accident requiring an operator to be taken off

a bus. Ruben Dep. at 14:23-15:2.

In practice in either position, Ruben has rarely driven a

bus. Ruben testified that, as far as taking a bus out to try a

new route, “[{an Instructor] could do it. Most of the time we

take a driver - an operator to do it.” Ruben Dep. 21:1-6. He

also stated that he never drove a bus to a special program. Id.

at 21:15-23. If a bus is in an accident, but is not damaged,

while an Instructor or Vehicle Operations Supervisor may

drive the bus away, “more commonly [it] would be the

mechanic” who would do so. Id. at 59:16-60:4. The one time

Ruben drove a bus to test a driver’s seat “was an unusual

situation.” Id. at 61:22.

3. Plaintiffs’ Work Conditions

Whether an employee works alone or in a traditional

office environment sometimes informs the determination of

whether random drug testing is appropriate. For example, the

fact that “[c]ommercial drivers work alone and unsupervised

for substantial periods of time” bolstered the argument for

drug testing in Teamsters, 932 F.2d at 1305; see also Von

Raab, 489 U.S. at 674 (noting the difficulty of detecting drug

impairment especially where employees are not subject to the

“day-to-day scrutiny that is the norm in more traditional

office environments”). In Skinner, the Federal Railroad

ilies

25a

Administration specifically found that an impaired employee

will seldom display any outward signs detectable by a lay

person or even a physician in some cases. 489 U.S. at 628.

Skinner involved post-accident, non-random testing. Here,

Defendants have not presented any findings that their

employees are unlikely to display outward signs of

impairment. Though supervised work conditions will not

alone make random drug testing unreasonable, the presence

of such day-to-day scrutiny is an additional factor which may

weaken an argument for random drug testing.

Denise works in a room with all of the other dispatchers,

including a senior dispatcher who supervises the others. She

has testified that if one of the dispatchers acted drunk

“[{e]verybody would notice” in “[a]bout two seconds.”

Denise Dep. 98:1-3. This factor, then, does not weigh in

favor of testing Denise.

Ruben has testified that as Vehicle Operations Supervisor

he is out in the field for approximately four hours per day.

Ruben is alone in the car or van when performing this duty,

which makes it difficult for the MTA to determine whether he

is under the influence of drugs. Ruben Dep. 22:12. As an

Instructor he does administrative work in what is presumably

a more typical office setting. However, other people are likely

to be around when Ruben is called upon to drive a bus in

either position, such as after an accident. Therefore, this

factor only marginally supports testing Ruben in his Vehicle

Operations Supervisor position.

4. Immediacy

Another consideration is whether the particular

government concern here is sufficiently immediate to dispense

with the warrant, probable cause, and reasonable suspicion

26a

requirements. Even where a warrantless search may be

performed, the Fourth Amendment generally requires a

showing of probable cause or at least reasonable suspicion.

Skinner, 489 U.S. at 624. “In limited circumstances, where

the privacy interests implicated by the search are minimal,

and where an important governmental interest furthered by the

intrusion would be placed in jeopardy by a requirement of

individualized suspicion, a search may be reasonable despite

the absence of such suspicion.” Id.

Ruben and especially Denise have relatively high

expectations of privacy. The government has not shown why

its interest in safety would be jeopardized by requiring

reasonable suspicion, as opposed to suspicionless random

testing of Denise and Ruben. As explained above, other

dispatchers would likely notice if Denise arrived at work

under the influence of drugs. To a lesser extent, drug use by

Ruben may also be detected before he could be called upon to

drive a bus.

Though the reasonableness of the random drug testing at

issue is not necessarily precluded by alternative less intrusive

means, we should consider whether the immediacy in this case

warrants random drug testing as opposed to other forms of

testing. See id. at 629, n.9 (“the reasonableness of any

particular government activity does not necessarily or

invariably turn on the existence of alternative ‘less intrusive’

means”) (citations omitted). When an employee always

performs safety-sensitive functions, suspicion-based testing

may well be too late to prevent significant harm. Plaintiffs

perform tasks that impact safety very infrequently.

Accordingly, the government’s general interest in safety is

neither heightened nor immediate within the context of our

inquiry here. Given Plaintiffs’ very limited impact on safety

in their working environments, testing based on reasonable

| re

27a

suspicion would not jeopardize the government’s interest in

Safety.

5. Reliability of the Testing Procedures

The testing procedures are quite reliable. The collection

site personnel must verify that the tested person is the

employee selected for testing. 49 C.F.R. § 40.61(c). All

personal belongings, such as overcoats or briefcases, are

taken away before the sample is provided. Id. at 40.61(f). To

deter dilution of the specimens, the toilet water is dyed blue

when possible and there is generally no running water in the

enclosure where urination occurs. Id. at 40.41, 40.43. These

protections all help to prevent individuals from bringing in a

“clean” sample, having others take the test for them, or

otherwise diluting the test.

MTA uses a split specimen testing procedure. The tested

individual fills one container, and then the collection site

personnel pour some of it into a second bottle in the presence

of the tested individual. 49 C.F.R. §§ 40.171, 40.175. Only

the primary specimen is tested. The sample is first screened

with an immunoassay test. 49 C.F.R. 40.87. If it is negative,

then the sample is reported as negative. If the screen comes up

positive, then a-gas chrovstography/mass spectrometry

(“GS/MS”) test is done, whic is currently the most reliable

test generally used in laboratories. Id. at 40.41, 40.43; Snider

Decl. at ¢ 17.

A medical review officer reviews all positives to look for

other possible explanations, and will contact the employee to

discuss such explanations. 49 C.F.R. §§ 40.121, 40.123,

40.129, 40.131, 40.135, 40.137, 40.141. An individual who

tests positive may request that the split specimen be tested by

a different laboratory. Id. at 40.153, 40.171, 40.201(e). If the

28a

test of the split specimen does not confirm the first positive

test, then the test is canceled. Id.

The regulations also require that employers provide blind

Specimens to labs. Blind specimens are urine samples

provided to labs for quality control purposes. 49 C.F.R.

§ 40.3. They are given fictitious identifiers so that they are

indistinguishable from employee samples. Id. The blind

specimens are either blank, containing no drugs, or spiked

with known quantities of specific drugs. Id. If an employer

sends over 100 specimens a year to a laboratory, it must

transmit a number of blind specimens equivalent to one

percent of the specimens sent to that laboratory, and must

investigate any discrepancy. Id. at 40.103, 105(a). If it is

determined that a mistake was caused by a technological or

methodological error, all samples that tested positive for the

drug in question going backward to the last satisfactory blind

sample performance test must be retested. Id. at 40.31(d)

(8).” If the error was administrative (clerical, etc.) and there

is reason to believe that the error was systemic, MTA may

require re-analysis of previously run specimens. Id. at (d)(7).

All false positives must be reported to the FTA. Id. at (d)(6),

(d)(7), (d)(8). As of February 1, 2001, no false positives have

been reported to the FTA since the regulations were first

promulgated in 1994. Snider Decl. $ 14.

These procedures make this test very effective. Steps are

taken to ensure that samples are not adulterated. Laboratories

are required to consider alternate explanations for positive

tests, and individuals may request a retest of the split

? Though this section was repealed effective August 1, 2001, it

has been substantially replaced with similar quality control

measures.

29a

specimen. In addition, blind samples are used for quality

control purposes. The use of split specimen testing and blind

samples also prevents the Bayes’ Theorum problem discussed

by the Ninth Circuit. Gonzalez, 174 F.3d at 1023. Here, false

positives are adequately filtered out.

6. Documentation of Drug Use in the Industry

Plaintiffs argue that there is no official documentation of

drug use among transit employees. Plaintiffs point to a 1991

DOT study of substance abuse in the transit industry which

indicates that “the transit industry has been affected by the

same substance abuse problems as those found in the general

population.” We have found no case which requires drug use

be greater for tested employees than that in the general

population. In fact, documentation of a drug problem within

the industry is specifically not required. It merely bolsters the

case. Chandler, 529 U.S. at 319; Von Raab, 489 U.S. at 673-

75; Bluestein v. Skinner, 908 F.2d 451, 456 n.6 (9th Cir.

1990). Therefore, Defendants’ failure to document drug use

among transit employees does not preclude random drug

testing. It is merely another factor to consider.

7. Whether Testing has Improved Safety

Plaintiffs also point to the fact that Defendants have not

Shown that the random drug tests have improved safety by

reducing accidents or even drug use among transit employees.

We have found no case which requires such a showing.

Further, drug testing serves a deterrent purnose by

discouraging employees from beginning drug use. Von Raab,

489 U.S. at 632. Defendants’ failure to prove that the testing

at issue has improved safety does not preclude drug testing.

30a

D. Balancing the Above Considerations

We must judge the reasonableness of the search “by

balancing the search’s intrusion on the individual’s Fourth

Amendment interest against its promotion of legitimate

governmental interests.” Gonzalez, 174 F.3d at 1021.

Random drug testing has been upheld for safety reasons in a

number of circumstances. See Bluestein v. Skinner, 908 F.2d

451, 455-57 (9th Cir. 1990) (upholding random testing for

persons holding safety-sensitive positions in the aviation

industry, noting the harm caused by an airplane crash); Int’l

Bhd. of Elec. Workers v. Skinner, 913 F.2d 1454, 1461-64

(9th Cir. 1990) (upholding random testing for employees

engaged in natural gas, liquified natural gas, and hazardous

liquid pipeline operations); Int’| Bhd. of Teamsters v. DOT,

932 F.2d 1292, 1305-06 (9th Cir. 1991) (upholding random

drug testing of commercial truck drivers who operate trucks

that weigh more than 26,000 pounds, carry fifteen or more

passengers, or transport hazardous materials where drivers are

subject to extensive regulation, comprehensive physical

examinations and work alone for substantial periods of time);

AFGE Local 1533 v. Cheney, 944 F.2d 503, 504-507 (9th

Cir. 1991) (upholding random testing of Navy civilian

employees who underwent detailed investigations before

obtaining Top Secret with Access security clearance because

unauthorized disclosure of top secret information “reasonably

could be expected to cause exceptionally grave damage to the

national security”); Am. Fed’n of Gov’t Employees _v.

Roberts, 9 F.3d 1464, 1466-68 (9th Cir. 1993) (upholding

random testing for correctional employees to prevent drug

smuggling into prisons where employees had opportunity for

contact with prisoners and a reduced expectation of privacy by

the nature of their work). These cases all involve either a

significant impact on safety with a risk of catastrophic results

or a substantially reduced privacy interest.

3la

We now consider the reasonableness of random drug

testing as applied to the Plaintiffs in this case. We must be

mindful that the issue in this case is not whether drug use

impacts safety. We can all agree that it can. The question

here is whether Plaintiffs’ job duties are such that a

governmental intrusion into their privacy is justified even in

the absence of any cause or suspicion.

1. Denise

As discussed above, Denise’s expectation of privacy is no

more diminished than any other employee. Unlike truck

drivers, employees with Top Secret security clearance access,

and correctional employees, Denise has a relatively high

expectation of privacy. On the other hand, the specific testing

procedures at issue “carefully delimit the extent of the

intrusion on individual privacy.” Int’ Bhd. of Teamsters v.

DOT, 932 F.2d 1292, 1299 (9th Cir. 1991) (involving drug

testing by order of Federal Highway Administration which

incorporates the Department of Transportation’s drug testing

procedures). In addition, the testing procedures are well

designed to catch drug users, with procedures to prevent

adulteration of samples. The use of split sample testing,

medical officer review, and blind samples reduce the risk of

false positives. These testing procedures weigh in favor of

allowing the testing. However, proper testing procedures

alone cannot justify drug testing of a government employee

lest every government employee could be subject to testing as

long as the testing procedures are similar to those used by

DOT.

We must, then, consider how Denise impacts safety, and

if the harm potentially caused by a dispatcher justifies the

testing at issue. Denise testified that she would call the police

five or six times per week and call an ambulance about the

32a

same number of times, but that these were generally not

related to MTA business and were not emergencies. She

testified that she only dealt with true emergencies three or

four times in her seventeen-year career as a dispatcher.

Defendants do not submit any evidence to contradict Denise’s

testimony. In the emergency situations, Denise would

typically just call the police or an ambulance. Denise Dep. at

95-97. There was one situation where Denise had to calm an

upset bus driver. Id. at 49-50. Given the few emergency

situations, Denise minimally impacts safety. In addition,

Denise works in an environment with a number of people,

typically including an individual supervising the dispatchers,

who should be able to detect any drug use, and/or correct any

action that might impair safety.

In light of the foregoing, and balancing all the relevant

factors, random testing of Denise is not reasonable and

violates the Fourth Amendment as applied to her. Her

minimal and non-immediate impact on safety cannot justify

the intrusion into her privacy. Therefore, Denise’s cross-

motion for summary judgment is granted and Defendants’

motion is denied.

2. Ruben

Ruben does have a somewhat diminished expectation of

privacy because he must undergo medical testing in order to

keep his commercial driver’s license. As described above, the

testing procedures respect privacy as much as possible, and

are reliable and accurate at detecting drug use. Ruben is

required to drive a bus only under unusual circumstances, and

in practice he has rarely done so. If Ruben were actively

training new drivers, it may very well be reasonable to subject

him to random testing. However, he has not performed that

function since 1992. Given that Ruben is required to drive a

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bus only sporadically and in unusual circumstances, his duties

have a minimal impact on safety. Since other people are

usually present(such as at an accident site) who could detect

and/or remedy any potential dangerous situation, the

government has little interest in randomly testine him.

Though Ruben has a lower expectation of privacy than

Denise, it is still cognizable. His physical exam is not nearly

as comprehensive as that required of commercial truck

drivers. While his somewhat diminished expectation of

privacy is a factor to consider, it does not justify the intrusion

of random drug tests under these circumstances. Similarly,

these circumstances do not suggest that safety would be

compromised in any meaningful way absent suspicionless

random testing. The intrusion into Ruben’s privacy cannot be

Sustained given the non-immediate governmental interest.

Random testing is not reasonable as applied to Ruben. Ruben

is also entitled to summary judgment.

IV. Disposition

For all of the above reasons, Plaintiffs’ motion for

summary judgment is GRANTED and Defendants’ motion for

summary judgment is DENIED. Defendants shall not apply

random drug testing to Plaintiffs in the jobs analyzed in this

order. Counsel shall contact the court clerk to initiate a

telephonic status conference with the court, within fourteen

(14) days hereof, to discuss the status of this case in light of

this order.

IT IS SO ORDERED

Initials of Deputy Clerk /s/

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 96-02785-GHK(AJWx) —

[Filed Dec. 12, 2001]

S. DENISE GONZALEZ, an

individual, and RUBEN C.

GONZALEZ, an individual,

Plaintiffs

VS.

METROPOLITAN TRANSPORTATION

AUTHORITY, et al.,

Defendants.

Nee eee eee eee Se”

ORDER RE: PERMANENT INJUNCTION AND STAY

PENDING APPEAL

On November 6, 2001, we ordered the parties to brief

whether a permanent injunction should be issued based on our

October 26, 2001 summary judgment order, and whether to

stay further proceedings pending the resolution of any appeal

from the permanent injunction. We directed Plaintiffs to file

their brief by November 20, 2001. “Plaintiffs’ failure to

submit a brief as ordered . . . will be treated as their

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abandonment of any objection to the issuance of a permanent

injunction and a stay .. . .” Min. Ord. (Nov. 6, 2001).

As of December 11, 2001, we have received no such

briefing on behalf of Plaintiffs. Based on our October 26,

2001 order granting Plaintiffs’ motion for summary judgment,

we hereby PERMANENTLY ENJOIN Defendants from

applying random drug testing to Plaintiffs in the positions

analyzed therein. Because Defendants expressed a desire for

immediate appellate review of our grant of injunctive relief,

Defendants shall notify the court, in writing, when they have

filed their notice of appeal. Upon receipt of such notification,

all further proceedings shall be STAYED pending appeal. If,

within thirty (30) days hereof, Defendants fail to notify the

court of their filing of a notice of appeal, the court will

assume Defendants have abandoned an immediate appeal of

the injunction. In that event, we will set a status conference

to discuss resolution of any remaining issues.

IT IS SO ORDERED

/s/

George H. King

United States District Judge

APPENDIX E

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CIVIL MINUTES - GENERAL

Case No. CV 96-2785-GHK(AJWx)

[Filed May 17, 2001]

S. Denise Gonzalez, et al.

Plaintiffs,

Metropolitan Transportation Authority, et al.,

Defendants.

eee Nee eee

PRESENT: Hon. George H. King, United States District

Judge

PROCEEDINGS: Supplemental Briefing re: Mootness

At the April 23, 2001 hearing on Defendants’ motion for

summary judgment, Defendants argued that Plaintiffs’ claims

had become moot as they had moved to Arizona. Defendants

have deposed Plaintiffs and filed supplemental briefing on the

mootness issue. We note initially that a change of residence

would not render Plaintiffs’ damages claims moot, so our

mootness discussion applies only to Plaintiffs’ request for

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injunctive relief. See Harris v. Itzhaki, 185 F.3d 1043, 1050

(9" Cir. 1999).

Plaintiffs sold their California condominium in March

2000 and purchased a home in Arizona in August 2000.

Ruben Dep. at 8:8-9, 19:19-21. However, Ruben has evenly

split his time between California and Arizona since that time,

and he maintains a California driver’s license and voter

registration. Id. at 20-21, 25:11-19. Most importantly, he

returned to work at the Metropolitan Transportation Authority

in early May. Id. at 25:20-25; Defendants’ Supplemental

Memorandum at 4, n.3. Therefore, his claims are Clearly not

moot.

Denise, however, spends most of her time in Arizona.

Since August of 2000, she has spent only ten to twelve nights

in California. Denise Dep. at 16:21-22. She has an Arizona

driver’s license and is registered to vote in Arizona. Id. at

18:6-10, 19:16-17. Denise also testified than she would return

to her job if the court were to find the testing unconstitutional.

Id. at 29:3-9. Denise’s move to Arizona does not moot her

claim given her stated intent to return to her job. The cases

cited by Defendants involve a plaintiff who only had an intent

to return to his prior residence at some unspecified time in the

future, which raised a separate ripeness issue. See Hein v.

Arkansas State University, 972 F.Supp. 1175, 1182 n.3 (E.D.

Ark. 1997); Monahan v. State of Nebraska, 687 F.2d 1164,

1168 (8 Cir. 1982). Here, however, Denise has

unequivocally stated that she will return to her job, and move

back to Los Angeles, if her job becomes available to her.

Plaintiffs’ claims are not moot. We will, therefore, reach

the merits of Defendants’ summary judgment motion. As

discussed at the April 23, 2001 hearing and in light of

Plaintiffs’ statement that they also seek summary judgment,

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Opposition at 6, n.3, we will regard Defendants’ pending

motion as cross-motions for summary judgment. While we

feel that Defendants have had “a full and fair opportunity to

ventilate the issues involved in the motion” under Cool Fuel.

Inc. v. Connett, 685 F.2d 309, 312 (9" Cir. 1982), we will

nonetheless allow Defendants an additional ten (10) days to

file any additional opposition to the cross-motion for summary

judgment. Defendants shall not make any arguments or file

any evidence which has already been filed in support of

Defendants’ motion for summary judgment. If Defendants fail

to make a supplemental filing within ten (10) days, we will

consider the cross-motions upon the current record.

Defendants shall deliver a courtesy copy of any supplemental

filing to chambers.

IT IS SO ORDERED

Initials of Deputy Clerk /s/

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Case No. 96-56808

[Filed April 14, 1999]

S. DENISE GONZALEZ, an individual;

RUBEN C. GONZALEZ, an individual,

Plaintiffs-Appellants

¥.

)

METROPOLITAN TRANSPORTATION )

AUTHORITY, a.k.a. Southern )

California Rapid Transit District; )

JOSEPH E. DREW, in his official )

Capacity as present Chief )

Executive Officer/General )

Manager and as an individual; )

FRANKLIN WHITE, in his official )

Capacity as past Chief Executive )

Officer/General Manager and as )

an individual; RAY INGE, in his )

official capacity as present )

Director of Human Resources and )

as an individual; JERRY GIVENS, in )

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his official capacity as past

Director of Human Resources and

as an individual,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

James M. Ideman, District Judge, Presiding

Argued and Submitted

March 6, 1998—Pasadena, California

Before: Robert Boochever and Andrew J. Kleinfeld,

Circuit Judges, and Jack E. Tanner,' District Judge.

Opinion by Judge Kleinfeld.

OPINION

KLEINFELD, Circuit Judge:

This is a Constitutional challenge to random urine tests for

bus dispatchers and instructors.

Facts.

This case was dismissed with prejudice on a Rule 12(b)(6)

motion, so we evaluate the complaint de novo to decide

whether it states a claim upon which relief could be granted,

' The Honorable Jack E. Tanner, Senior United States District

Judge for the Western District of Washington, sitting by

designation.

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if the facts alleged were proved. /daho Sporting Congress,

Inc. v. United States Forest Service, 92 F.3d 922 (9th Cir.

1996). The constitutionality of agency drug testing regulations

is reviewed de novo. International Bhd. of Teamsters v.

- Department of Transp. , 932 F.2d 1292, 1298 (9th Cir. 1991).

According to the complaint, Mr. and Mrs. Gonzalez bo

work for the municipal bus service in Los Angeles. Mrs.

Gonzalez is a radio dispatcher, Mr. Gonzalez an instructor.

Their employer, the Los Angeles County Metropolitan

Transportation Authority, conducts random unannounced

testing for drugs and alcohol pursuant to the federal Omnibus

Transportation Employee Testing Act of 1991 and regulations

thereunder. 49 U.S.C. § 5331; 49 C.F.R. Part 653-54.

Mrs. Gonzalez was subjected to a urine test at a medical

facility pursuant to the policy. The test came out negative, but

the process was so upsetting to her, according to the

complaint, that she needed medical treatment and was unable

to return to work afterward. She was a victim of child abuse,

which made her unusually sensitive to interference with her

bodily privacy. Mr. Gonzalez has not been tested, but is upset

both by what happened to his wife and by the prospect of

being tested himself.

According to the complaint, the tests are based on the

classification of both their jobs as “safety-sensitive,” but that

classification cannot be justified. Also, the tests are not

accurate enough to be justifiable to serve any public purpose,

nor are there any screening procedures to protect unusually

sensitive people like Mrs. Gonzalez.

The complaint claims that the tests amount to an

unconstitutional search, violative of the Fourth Amendment,

and also Article I, sections 1 and 13, of the Constitution of the

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State of California. Suit is brought under 42 U.S.C. § 1983

against the Metropolitan Transportation Authority, its past

and present general managers, and its past and present

officials in charge of implementing the testing program. The

prayer is for a declaratory judgment that the testing program

is unconstitutional facially and as applied, damages for lost

earnings and emotional distress, and an injunction to prohibit

testing Mr. and Mrs. Gonzalez pursuant to the program.

The district court ruled that (1) federal regulations

requiring urine testing of employees implicate the Fourth

Amendment under Skinner v. Railway Labor Executives’

Ass’n., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639

(1989), because they invade reasonable expectations of

privacy, as plaintiffs argued; (2) reasonableness under the

Fourth Amendment is evaluated by balancing the intrusiveness

of the test against the government interest satisfied by testing,

under National Treasury Employees Union v. Von Raab, 489

U.S. 656, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989); (3) but

the federal regulations requiring random testing of employees

such as plaintiffs satisfy the balancing test. Defendants’

motion to dismiss was accordingly granted with prejudice.

Analysis.

I. The regulations.

The Transit Authority argues that the urine tests can

properly be required of Mr. and Mrs. Gonzalez under duly

authorized federal regulations. The Gonzalezes argue that

their jobs do not properly fit under the “safety sensitive

personnel” definition under the regulation, or if they do, the

definition is broader than the statute permits.

ERAN Athearn PNP i

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The statute requires the Secretary of Transportation to

issue regulations for random testing and to make the decision

which categories of employees are to be treated as “safety-

sensitive” and tested. Congress required the Secretary to issue

regulations “to conduct . . . random testing of mass

transportation employees responsible for safety-sensitive

functions (as decided by the Secretary) for the use of a

controlled substance . . . and to conduct... random...

testing of such employees for the use of alcohol... .” 49

U.S.C. § 5331(b)(1)(A) (emphasis added).”

? § 5331. Alcohol and controlled substances testing

(b) Testing program for mass transportation employees.

(1)(A) In the interest of mass transportation safety, the

Secretary shall prescribe regulations that establish a

program requiring mass transportation operations that

receive financial assistance under section 53C7, 5309, or

5311 of this title or section 103(e)(4) of title 23 to conmuct

preemployment, reasonable suspicion, random, and pos:-

accident testing of mass transportation employees

responsible for safety-sensitive functions (as decided by the

Secretary) for the use of a controlled substance in violation

of law or a United States Government regulation, and to

conduct reasonable suspicion, random, and post-accident

testing of such employees for the use of alcohol in violation

of law or a United States Government regulation. The

regulations shall permit such operations to conduct

preemployment testing of such employees for the use of

alcohol.

(B) When the Secretary of Transportation considers it

appropriate in the interest of safety, the Secretary may

prescribe regulations for conducting periodic recurring

testing of mass transportation employees responsible for

safety-sensitive functions (as decided by the Secretary) for

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The regulations define “safety-sensitive function” to

include anyone who operates a “revenue service vehicle” such

as a city bus, “including when not in revenue service.” 49

C.F.R. § 653.7; 49 C.F.R. § 654.7. That may cover Mr.

Gonzalez, described by the complaint as a “Transit

Operations Supervisor-Instructor.” We understand from the

briefs and oral argument that he supervises trainees who drive

buses without passengers on board. The definition also

includes “controlling dispatch or movement of a revenue

service vehicle.” /d. That covers Mrs. Gonzalez, a bus

dispatcher. As an instructor, Mr. Gonzalez is “controlling. . .

movement” of a bus when he is monitoring a trainee who is

driving an empty bus.’ Thus the federal regulations required

the use of alcohol or a controlled substance in violation of

law or a Government regulation.

49 U.S.C. § 5331(b).

> Safety-sensitive function means any of the following duties:

(1) Operating a revenue service vehicle, including when

not in revenue service;

(2) Operating a nonrevenue service vehicle, when required

to be operated by a holder of a Commercial Driver’s

License;

(3) Controlling ¢ispatch or movement of a revenue service

vehicle;

(4) Maintaining a revenue service vehicle or equipment

45a

the municipal bus system to test Mr. and Mrs. Gonzalez, and

the Department of Transportation was authorized by the

statute to issue the regulations. The only serious question is

whether the regulations are constitutionally permissible as

applied to Mr. and Mrs. Gonzalez.

II. Jurisdiction.

The Transit Authority argues that the court lacked

jurisdiction over the Gonzalezes’ challenge because they did

not join the Federal Transit Administration and the

Department of Transportation, and these entities are

indispensable parties under Federal Rule of Civil Procedure

19. This contention is incorrect. Whether a party is necessary

and indispensable is a pragmatic and equitable judgment, not

a jurisdictional one. Simpson v. Alaska State Comm’n for

Human Rights, 608 F.2d 1171, 1174-75, 1175 n.5 (9th Cir.

1979); 7 Wright, Miller & Kane, Federal Practice &

Procedure §§ 1601, 1603 (1986). If the complaint otherwise

states a claim, there is no apparent reason why these parties

could not be joined, and it is for the district court initially to

decide whether joinder is appropriate and feasible.

used in revenue service, unless the recipient receives

section 3 funding and is in an area of less than 50,000 in

population or section 18 funding and contracts out such

services; or

(5) Carrying a firearm for security purposes.

49 C.F.R. § 653.7.

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III. Qualified immunity.

Appellees argue that all the individual defendants should

be dismissed because they are entitled to qualified immunity,

and would have had no reason to think that administering the

urine tests was unconstitutional. The district court did not

reach the issue of what claims for relief if any would be

subject to qualified immunity, because it dismissed the case

for failure to state a claim. Accordingly, we need not decide

whether, for example, the damages claims would fail because

of qualified immunity. Of course good faith that would shield

individuals from damages judgments would not avoid

prospective relief based on unconstitutionality of the

regulation as applied, were that to be the correct result.

IV. Constitutionality.

The Gonzalezes argue that the regulations, insofar as their

positions are included as “safety-sensitive,” reach further than

the Fourth Amendment permits. They claim, basically, that

what they do affects safety so little, and the tests are of so

little utility to protecting public safety, that the interference

with their privacy cannot be justified. Thus for municipal bus

service to subject them to urine tests is, they argue, an

unreasonable search and seizure.

Collection and testing of urine pursuant to government

directive is a search under the Fourth Amendment. Skinner v.

Railway Labor Executives’ Ass’n, 489 U.S. 602, 617, 109 S.

Ct. 1402, 103 L. Ed. 2d 639 (1989). The reasons are that

urine tests can reveal private medical facts, and that “the

process of collecting the sample to be tested, which may in

some cases involve the visual or aural monitoring of the act of

urination, itself implicates privacy interests.” Jd.; see also

National Treasury Employees Union v. Von Raab, 489 U.S.

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656, 665, 109 S. Ct. 1384, 103 L. Ed. 2d 685 (1989). Fora

warrantless search of this sort to be reasonable, usually some

quantum of individualized suspicion has been required,

though that is not necessary to reasonableness. Skinner, 489

U.S. at 624. In the absence of individualized suspicion, the

reasonableness of such a search depends on balancing the

“special needs” of the government against the extent of the

intrusiveness of the testing procedure. Chandler v. Miller,

520 U.S. 305, 318, 117 S. Ct. 1295, 137 L. Ed. 2d 513

(1997).

The urine testing cases decided by the Supreme Court over

the last decade have gone both ways depending on their quite

particularized facts. Skinner, 489 U.S. 602, 109S. Ct. 1402,

103 L. Ed. 2d 639 (1989), the first of this line of authority,

dealt with blood and urine tests of railway employees who had

been involved in train crashes or safety rule violations. The

Court discussed a century of alcohol problems among railway

employees, and a study indicating that “23% of the operating

personnel were ‘problem drinkers.’” /d. at 607 n.1. The urine

tests were held to be constitutional, because the urine

collection procedure was appropriate, employees’ reasonable

expectations of privacy were diminished by their participation

in an industry pervasively regulated for safety, and the

persons tested “discharge duties fraught with such risks of

| injury to others that even a momentary lapse of attention can

have disastrous consequences” and can “cause great human

loss before any signs of impairment become noticeable to

supervisors or others.” /d. at 628.

| Treasury Employees, which came down the same day,

held that urine testing of some Customs Service employees

was constitutionally permissible, but the testing of others

might not be, depending on further development of the facts.

Those who sought promotion to positions involving drug

;

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interdiction or carrying a firearm could be tested. But whether

the Customs Service could also test employees required to

“handle classified material” was remanded, because inclusion

of such positions as “animal caretaker” and “accounting

technician” raised “the question whether the Service had

defined this category of employees more broadly than is

necessary.” Jd. at 678.

In Vernonia School District v. Acton, 515 U.S. 646, 115

S. Ct. 2386, 132 L. Ed. 2d 564 (1995), drug testing of

student athletes was held to be constitutionally permissible.

The Court reasoned that “children . . . committed to the

temporary custody of the State as schoolmaster” lacked some

of the most fundamental rights of self-determination and

privacy, and that athletes who ordinarily showered together

had even less of an expectation of privacy. Further, the urine

was collected in circumstances intruding no more on privacy

than urinating in a public restroom ordinarily did, and

information obtained from the urine and disclosure of that

information were sharply limited.

Chandler v. Miller, 520 U.S. 305, 117 S. Ct. 1295, 137

L. Ed. 2d 513 (1997) held that it was unconstitutional to

require candidates for state public office to subject themselves

,-—to-_urine tests. Though the tests and results were conducted

with full privacy and the candidates could control

dissemination of the results, there was no evidence that the

state was afflicted with drug-abusing officeholders, and the

testing procedure was not likely to be effective for screening

out drug abusing candidates. The testing protected a state

interest in symbolism and image rather than safety, an

insufficient basis for the warrantless searches without

individualized suspicion.

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We have also decided a few urine testing cases. Bluestein

v. Skinner, 908 F.2d 451 (9th Cir. 1990), upholds random

drug testing of flight crew members. International Bhd. of

Teamsters v. Department of Transportation, 932 F.2d 1292

(9th Cir. 1991), upholds the constitutionality of drug testing

for bus and commercial truck drivers. In Railway Labor

Executives v. Skinner, 934 F.2d 1096 (9th Cir. 1991), we

upheld random testing of railroad workers, even without a

crash or safety violation.

| We are unable, on the record before us, to determine

| whether our precedents upholding testing are controlling or

| distinguishable. This case went to judgment on a pleading

which did not exclude the possibility that facts might be

proved under it, pursuant to which the urine testing would be

unconstitutional. Each of our own decisions may be

distinguishable, depending on the facts as they are further

developed in the case at bar. In Bluestein, testing was limited

to employees whose impairment would cause physical risk to

passengers, and the test procedure was designed to assure

reasonable balancing of accuracy, privacy, and dignity. But

here we do not yet know whether dispatchers and instructors

would cause physical risk to passengers if impaired, because

we do not know exactly what they do, and we know little

about the testing procedure. In Teamsters, we did not address

the issue of testing dispatchers and instructors, we were able

to ascertain how the tests were done and how much they

impinged on privacy, and we noted that truck drivers were

: already subjected to extremely invasive physical examinations

| including urinalysis even without the challenged procedure.

| What was critical in Teamsters was that the persons tested

could be impaired “behind the wheel.” Teamsters, 932 F.2d

at 1304. The employees at issue in the case at bar apparently

do not get behind the wheel. In Railway Executives, unlike the

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case at bar, we had a record establishing how the tests were

done, so that we could evaluate accuracy, privacy and dignity.

Vernonia School District v. Acton, 515 U.S. 646, 653,

115 S. Ct. 2386, 132 L. Ed. 2d 564 (1995), holds that

reasonableness is judged by balancing the search’s intrusion

on the individual’s Fourth Amendment interests against its

promotion of legitimate governmental interests. Vernonia

holds that the factors to be considered are: (1) the nature of

the privacy interest upon which the search intrudes; (2) the

character of the intrusion; (3) the immediacy of the

government concern and the efficacy of the search for meeting

it. Id. at 654-64. We lack the factual record to perform the

Vernonia evaluation. As to “nature of the privacy interest,”

the municipal bus authority employees obviously are not

children with a reduced privacy interest, as in Vernonia, and

the record does not establish whether bus dispatchers and

other transit employees are subject even without the urine

tests to the kind of comprehensive physical examinations that

were a factor in Teamsters, 932 F.2d at 1300. The record

does not establish whether, as in Skinner, bus dispatchers and

instructors have traditionally been subject to extensive

regulation for safety.

Vernonia holds that we are next to consider the “character

of the intrusion,” because urine testing “intrudes upon ‘an

excretory function traditionally shielded by great privacy.’”

Vernonia, 515 U.S. at 658. We do not know whether, as in

Vernonia, the bus employees are tested in “conditions nearly

identical to those typically encountered in public restrooms,”

Id. at 658, or what other procedures may be used.

The next Vernonia factor is “the nature and immediacy of

the governmental concern and the efficacy of this means for

meeting it.” Vernonia, 515 U.S. at 660. Obviously the

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government concern with preventing accidents involving

municipal buses is very great. In a Third Circuit case on bus

drivers, the transit authority “presented extensive evidence of

a severe drug abuse problem among its operating employees,”

Transport Workers’ Union v. Southeastern Pennsylvania

Transp. Auth., 884 F.2d 709, 711 (3d Cir. 1988), but no

evidence has been presented in the case at bar. But with a

record limited to the complaint in this case, it would be

possible for the evidence to establish efficacy or inefficacy.

One issue of efficacy is that the complaint does not

establish how testing employees in the positions at issue,

instructor and dispatcher, affects safety. It does not show

exactly what they do, and how being under the influence of

alcohol or drugs when they do it might affect safety. So far as

we can tell, neither appellant drives a bus. It may be that the

risk to public safety is great, because even though they are not

behind the wheel, these employees can greatly increase the

risk of an accident by those who are, as for example a drunk

mechanic might. But it is also possible that plaintiffs can

prove that dispatchers and instructors are no more of a threat

to public safety than the animal handlers in Treasury

Employees or the holders of high public office in Chandler.

We understand from the briefs and argument that a dispatcher

sits in a booth and talks on a microphone, telling drivers

where more buses are needed and gives directions so a bus

driver can get there. Possibly their duties make them as

dangerous if drunk on duty as drunk air traffic controllers

would be. On the other hand, buses go a lot slower than

airplanes, so the air traffic controller comparison might not be

apt. It is also possible that a drunk dispatcher is no more

dangerous to public safety than a gas station attendant who

gives an inquiring motorist mistaken directions, or a drunk

shipping clerk who sends out ten of something w'1en only one

: was ordered. It is conceivable that the one time of the day that

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a drunk dispatcher does not threaten public safety is when on

the job, because he or she is then assuredly off the road. The

record does not compel either inference at this stage.

The other aspect of efficacy is whether the tests are

reasonably designed to accomplish their objective, and that

too is subject, on the limited record before us, to proof either

way. It does not show whether the tests are adequately

designed to catch those who should fail them, by such means

as surprise and monitoring to avoid deception. The inefficacy

of the drug tests on candidates, performed by appointment

with no monitoring, was among the reasons why they were

unconstitutional in Chandler, 520 U.S. at 319-20. Without

some sort of monitoring and surprise, workers who do drink

and use drugs regularly can substitute clean urine for their

own, rendering the indignity on all the clean workers

pointless.

A more complete record can also illuminate another aspect

of efficacy, the Bayes’ theorem problem that affects any

random test given to a low incidence population. Nothing in

this world is perfect. Suppose the combination of errors in the

tests, including containers marked with someone else’s name

or number than the person who urinated into them,

typographical errors in the reports of test results and

identifications of which employees produced which results,

anomalous chemical reactions with other substances in

people’s bodies such as medications and foods, and other

random errors, cause an error rate such that one person out of

500 gets a report of “dirty” urine when it was actually

“clean.” Suppose that there is a high rate of alcohol drug use

among the employees (in Skinner the Court found it relevant

to note that the employees had a 23% “problem drinkers”

rate), and on any particular day one worker in 10 has alcohol

or drugs in his blood. Then with a 1/500 false positive rate,

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out of 1,000 tests, 2 will be positive even though the

employee’s urine was clean, and 100 will be positive

correctly. Only one of the positives out of every 51 is false.

Fifty out of 51 are accurate. That is a fairly effective test, in

terms of reliability.

But if the workers are generally “clean,” the reliability of

the test goes way down. Suppose on a particular day only one

worker in 500 has ingested drugs or alcohol. Then with a

1/500 false positive rate, out of 1,000 tests, 2 will be correct

positives and 2 will be false positives. Half the employees

who get a “dirty” urinalysis report are unjustly categorized.

A positive result is as likely to be false as true on so clean a

population, even though the test is identical to the one that

was quite effective for a population with a higher incidence of

drug and alcohol usage.

Thus the data on the extent of the drug and alcohol

problem is useful not only for evaluating whether “the nature

and immediacy of the governmental concern,” Vernonia, 515

U.S. at 660, justifies the testing, but also for evaluating

whether the tests achieve reasonable efficacy in distinguishing

those who have used alcohol or drugs from those who have

not. This is not to say that a low rate of alcoholism or drug

use necessarily bars testing. The low rate may result from the

success of the test in deterring alcohol and drug abuse, and

the false positives may be filtered out more or less adequately

by a second test. See Treasury Employees, 489 U.S. at 656

n.3. But we need a record to determine whether the burden of

false positives on those so classified, and the indignity of the

testing on all those subjected to it, so outweighs the value of

the testing as to make the testing an unreasonable search in the

absence of any individualized suspicion.

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Congress, in providing for mass transportation funding,

unquestionably can constitutionally limit use of its funds in

such a way as to keep drunk bus drivers off the street. But the

use of random urine testing involves a search which must be

“reasonable” in order to satisfy the Fourth Amendment. It is

not enough to say that the test is performed in a doctor’s

office. We also take off all our clothes, wear gowns open in

the back, and allow strangers to touch and probe our bodies

in a doctor’s office; that does not mean that the government

can compel us to do these things without individualized

suspicion.

We cannot simply defer to the administrative agency’s

determination that dispatchers perform a “safety-sensitive

function.” If that were the proper way to resolve the

constitutional question, then the Supreme Court would have

deferred Treasury Employees to the Treasury Department

determination that employees who handled classified materials

performed safety-sensitive functions. Instead, the Court

remanded that case “to assess the reasonableness of the

Government’s testing program insofar as it covers employees

who are required ‘to handle classified material’” because the

record “raises in our minds the question whether the Service

has defined this category of employees more broadly than is -

necessary.” Treasury Employees, 489 U.S. at 677-78.

Conclusion.

The tests challenged by Mr. and Mrs. Gonzalez and the

regulations pursuant to which they were performed address a

serious concern. But the record is inadequate to determine

whether, as applied in this case, they address it in a

constitutional manner. We do not know, from the record we

have, whether the employees at issue would pose a substantial

immediate threat to public safety if impaired by drugs or

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alcohol, or whether the procedure for testing them would be

reasonably effective for finding out if they are impaired, or

whether the tests as performed were an undue invasion of

their privacy. Facts might be proved under the complaint

which would entitle plaintiffs to relief. Accordingly we

REVERSE and REMAND

APPENDIX G

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

Case No. CV 96-2785 JMI (JRx)

[Filed Oct. 21, 1996]

S. DENISE GONZALEZ, et al.,

Plaintiffs,

METROPOLITAN TRANSPORTATION

AUTHORITY, et al.,

Defendants.

a ee ee ae ae

ORDER GRANTING DEFENDANTS’ MOTION TO

DISMISS WITH PREJUDICE

IT IS HEREBY ORDERED:

Defendants Metropolitan Transportation Authority

(“MTA”), et al.’s Motion to Dismiss came before this Court

for review on September 16, 1996. After careful

consideration and review, the Court hereby GRANTS

Defendants’ motion.

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BACKGROUND

Plaintiffs, Denise Gonzalez and Ruben Gonzalez, have

brought suit against their employer Defendant MTA and four

current and former management employees, Defendants

Joseph E. Drew, Franklin White, Ray Inge and Jerry Givens.

Denise Gonzalez holds the position of Transportation

Operations Supervisor - Communications and is a radio

dispatcher in the Bus Control Center. Ruben Gonzalez holds

the position of Transportation Operations Supervisor-

Instruction.

The Omnibus Transportation Employee Testing Act of

1991 (“Act”), requires the Department of Transportation

(“DOT”) to implement drug and alcohol testing programs in

various transportation industries. The Federal Transit

Administration (“FTA”) is a DOT agency and, as such, is

required to conduct drug and alcohol testing programs. 49

C.F.R. §§ 40.1, 40.3.

The Act directs the FTA to require recipients of federal

funds to test safety-sensitive employees for the prohibited use

of controlled substances. The Act directs the FTA to require

four kinds of drug testing: pre-employment, reasonable

suspicion, random and post accident, and permits the FTA to

require periodic drug testing. The Act further directs the FTA

to require a post-accident test when there has been a loss of

human life.

The FTA’s drug and alcohol program mandates the testing

of safety-sensitive employees. Federal regulations define

“safety-sensitive” function to mean any of the following

duties:

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(1) Operating a revenue service vehicle, including

when not in revenue service;

(2) Operating a non-revenue service vehicle, when

required to be operated by a holder of a Commercial

Driver’s License;

(3) Controlling dispatch or movement of a revenue

service vehicle;

(4) Maintaining a revenue vehicle or equipment used

in revenue service, unless the recipient receives

section 3 funding and is in an area of less than 50,000

in population or section 18 funding and contracts out

such services; or

_ (5) carrying a firearm for security purposes.

49 C.F.R. §§ 653.7, 654.7.

Pursuant to said federal regulations, on January 1, 1995,

Defendant MTA promulgated a new drug and alcohol policy

which initiated random testing of employees who perform

safety-sensitive functions. The job functions of Transportation

Operations Supervisors have been classified as safety sensitive

by the MTA. Therefore, as Transportation Operations

Supervisors, both Plaintiffs are subject to the MTA’s drug and

alcohol policy. On April 18, 1995, pursuant to the random

testing provision, Plaintiff Denise Gonzalez was tested.

Plaintiffs contend their civil rights have been, and

continue to be, violated by the April 18, 1995 test of Plaintiff

Denise Gonzalez and the fact that both continue to be subject

to random testing. Plaintiffs contend that random testing

violates their civil rights to privacy and freedom from

unreasonable searches and seizures and further assert that they

are not “safety sensitive” employees under Supreme Court

precedent.

SE) oe ae

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DISCUSSION

Defendants contend that the random testing provision of

the MTA drug and alcohol policy is mandated by federal law

and that Plaintiffs’ positions with the MTA fall within the

category of “safety sensitive.” Therefore, as a matter of law,

Defendants assert that Plaintiffs perform safety-sensitive

functions and are correctly subject to random testing.

Plaintiffs acknowledge that their job descriptions do fall

within the “safety sensitive” definitions of the FTA

guidelines, but vigorously dispute the implied claim that their

jobs are in fact “safety sensitive” as defined by the United

States Supreme Court. Plaintiffs correctly argue that Congress

cannot pass any law, i.e. the Omnibus Act, that makes

unconstitutional behavior into constitutional behavior. Only a

change in the Constitution can do that.

The United States Supreme Court has held that federal

regulations requiring employees to produce urine samples for

chemical testing implicate the Fourth Amendment, as those

tests invade reasonable expectations of privacy. Skinner v.

Railway Labor Executives’ Assn., 489 U.S. 602, 616-618,

109 S. Ct. 1402, 1412-1413 (1989). Thus, the urine test at

issue in this case must be deemed a search under the Fourth

Amendment. Defendants note, however, that individuals only

have a right to be secure against unreasonable searches and

seizures, not all searches and seizures.

Defendants maintain that recent Supreme Court decisions

have set forth a balancing test in which the intrusiveness of

the testing is balanced against the government’s interest

served by the testing. See Id.; National Treasury Employees

Union v. Von Raab, 489 U.S. 656, 109 S. Ct. 1384 (1989).

Under this test, Defendants assert that the Supreme Court has

60a

upheld even random testing as constitutionally permissible in

order to serve the important governmental interest of ensuring

public safety. Id. In the instant case, Defendants argue that

the legitimate interest in public safety which has generated the

FTA regulations mandating random testing justifies the

invasion of privacy alleged by Plaintiffs. See Defendants’

Motion to Dismiss, p. 8.

The court agrees with Defendants. The FTA’s definition

of job functions that classify Plaintiffs as safety sensitive, and

thus subject to random drug testing, is reasonable as a matter

of law and therefore does not violate either the United States

or the California Constitution. Plaintiffs’ Complaint is

dismissed with prejudice in its entirety.

IT IS SO ORDERED.

DATED: October 18, 1996

/s/

JAMES M. IDEMAN

United States District Judge

APPENDIX H

Secoutided,

UNITED STATES CODE

TITLE 49. TRANSPORTATION

SUBTITLE III. GENERAL AND INFERMODAL

PROGRAMS , 2

CHAPTER 53 MASS TRANSPORTATION

49 USC § 5331 (1996)

Ded $B he RA Et Sethi a enter,

§ 5331 Alcohol and controlled substances testing

(a) Definitions. In this section--

(1) “controlled substance” means any substance under

section 102 of the Comprehensive Drug Abuse Prevention and

Control Act of 1970 (21 U.S.C. 802) whose use the Secretary

of Transportation decides has a risk to transportation safety.

(2) “person” includes any entity organized or existing

under the laws of the United States, a State, territory, or

possession of the United States, or a foreign country.

(3) “mass transportation” means any form of mass

transportation, except a form the Secretary decides is covered

adequately, for employee alcohol and controlled substances

testing purposes, under section 20140 or 31306 of this title.

(b) Testing program for mass transportation employees.

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(1) (A) In the interest of mass transportation safety, the

Secretary shall prescribe regulations that establish a program

requiring mass transportation operations that receive financial

assistance under section 5307, 5309, or 5311 of this title or

section 103(e) (4) of title 23 to conduct preemployment,

reasonable suspicion, random, and post-accident testing of

mass transportation employees responsible for safety-sensitive

functions (as decided by the Secretary) for the use of a

controlled substance in violation of law or a United States

Government regulation, and to conduct reasonable suspicion,

random, and post-accident testing of such employees for the

use of alcohol in violation of law or a United States

Government regulation. The regulations shall permit such

operations to conduct preemployment testing of such

employees for the use of alcohol.

(B) When the Secretary of Transportation considers it

appropriate in the interest of safety, the secretary may

prescribe regulations for conducting periodic recurring testing

of mass transportation employees responsible for safety-

sensitive functions (as decided by the Secretary) for the use of

alcohol or a controlled substance in violation of law or a

Government regulation.

(2) In prescribing regulations under this subsection, the

Secretary of Transportation--

(A) shall require that post-accident testing of such a mass

transportation employee be conducted when loss of human life

occurs in an accident involving mass transportation; and

(B) may require that post-accident testing of such a mass

transportation employee be conducted when bodily injury or

Significant property damage occurs in any other serious

accident involving mass transportation.

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(1) When the Secretary of Transportation considers it

appropriate, the Secretary shall require disqualification for an

established period of time or dismissal of any employee

referred to in subsection (b)(1) of this section who is found--

(A) to have used or been impaired by alcohol when on

duty; or

(B) to have used a controlled substance, whether or not

on duty, except as allowed for medical purposes by law or

regulation.

(2) This section does not supersede any penalty applicable

to a mass transportation employee under another law.

(d) Testing and laboratory requirements. In carrying out

subsection (b) of this section, the Secretary of Transportation

shall develop requirements that shall--

(1) promote, to the maximum extent practicable,

individual privacy in the collection of specimens;

- (2) for laboratories and testing procedures for controlled

substances, incorporate the Department of Health and Human

Services scientific and technical guidelines dated April 11,

1988, and any amendments to those guidelines, including

mandatory guidelines establishing--

(A) comprehensive standards for every aspect of

laboratory controlled substances testing and laboratory

procedures to be applied in carrying out this section,

including standards requiring the use of the best available

technology to ensure the complete reliability and accuracy of

——————————Vv————ee aan

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controlled substances tests and strict procedures governing the

chain of custody of specimens collected for controlled

substances testing; :

(B) the minimum list of controlled substances for which

individuals may be tested; and

review of laboratories and criteria for certification and

revocation of certification of laboratories to perform

controlled substances testing in carrying out this section;

(3) require that a laboratory involved in controlled

substances testing under this section have the capability and

facility, at the laboratory, of performing screening and

confirmation tests;

(4) provide that all tests indicating the use of alcohol or a

controlled substance in violation of law or a Government

regulation be confirmed by a scientifically recognized method

of testing capable of providing quantitative information about

alcohol or a controlled substance;

(5) provide that each specimen be subdivided, secured,

and labeled in the presence of the tested individual and that a

part of the specimen be retained in a secure manner to prevent

the possibility of tampering, so that if the individual’s

confirmation test results are positive the individual has an

opportunity to have the retained part tested by a 2d

confirmation test done independently at another certified

laboratory if the individual requests the 2d confirmation test

not later than 3 days after being advised of the results of the

first confirmation test;

FS ER RRR AET theta) ON AOR eR: BIR eg R INTE De he lew

roamrtge

65a

(6) ensure appropriate safeguards for testing to detect and

quantify alcohol in breath and body fluid samples, including

urine and blood, through the development of regulations that

may be necessary, and in consultation with the Secretary of

Health and Human Services;

(7) provide for the confidentiality of test results and

medical information (except information about alcohol or a

controlled substance) of employees, except that this clause

does not_prevent the use of test results for the orderly

imposition of appropriate sanctions under this section; and

(8) ensure that employees are selected for tests by

nondiscriminatory and impartial methods, so that no employee

is harassed by being treated differently from other employees

in similar circumstances.

(e) Rehabilitation. The Secretary of Transportation shall

prescribe regulations establishing requirements -for

rehabilitation programs that provide for the identification and

opportunity for treatment of any mass transportation employee

referred to in subsection (b)(1) of this section who is found to

have used alcohol or a controlled substance in violation of law

or a Government regulation. The Secretary shall decide on the

circumstances under which employees shall be required to

participate in a program. This subsection does not prevent a

mass transportation operation from establishing a program

under this section in cooperation with another mass

transportation operation.

(f) Relationship to other laws, regulations, standards, and.

orders.

(1) A State or local government may not prescribe, issue,

or continue in effect a law, regulation, standard, or order that

66a m

is inconsistent with regulations prescribed under this section.

However, a regulation prescribed under this section does not

preempt a State criminal law that imposes sanctions for

reckless conduct leading to loss of life, injury, or damage to

property.

(2) In prescribing regulations under this section, the

Secretary of Transportation--

(A) shall establish only requirements that are consistent

with international obligations of the United States; and

(B) shall consider applicable laws and regulations of

foreign countries.

(3) This section does not prevent the Secretary of

Transportation from continuing in effect, amending, or further

supplementing a regulation prescribed before October 28,

1991, governing the use of alcohol or a controlled substance

by mass transportation employees.

(g) Ineligibility for assistance. A person is not eligible for

financial assistance under section 5307, 5309, or 5311 of this

title section 103(e)(4) of title 23 if the person is required,

undér regulations the Secretary of Transportation prescribes

under this section, to establish a program of alcohol and

controlled substances testing and does not establish the

program. .

APPENDIX I

CODE OF FEDERAL REGULATIONS

TITLE 49 -- TRANSPORTATION

SUBTITLE B -- OTHER REGULATIONS RELATING

TO TRANSPORTATION

CHAPTER VI -- FEDERAL TRANSIT

ADMINISTRATION, DEPARTMENT OF

TRANSPORTATION

PART 653 -—- PREVENTION OF PROHIBITED DRUG

USE IN TRANSIT OPERATIONS

SUBPART A -- GENERAL

49 CFR 653.1

653.1 Overview

49 CFR 653.1

(a) This part describes the anti-drug program to be

implemented by a recipient of certain funding from the

Federal Transit Administration.

(b) The part includes six subparts. Subpart A covers the

general requirements of the FTA anti-drug program. Subpart

B specifies the basic requirements of each employer’s anti-

drug program, including the types of tests to be conducted,

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68a

and ‘the elements required to be in each employer’s drug

testing program. Subpart C describes the different types of

drug tests to be conducted. Subpart D describes a new drug

testing procedural requirement mandated by the Act. Subpart

E contains administrative matters such as reports and

recordkeeping requirements. Subpart F specifies how a

recipient certifies compliance with the rule.

TITLE 49 -- TRANSPORTATION

SUBTITLE B -- OTHER REGULATIONS RELATING

TO TRANSPORTATION

CHAPTER VI -- FEDERAL TRANSIT

ADMINISTRATION, DEPARTMENT OF

TRANSPORTATION

PART653 -- PREVENTION OF PROHIBITED DRUG

USE IN TRANSIT OPERATIONS

SUBPART A -- GENERAL

49 CFR 653.7

653.7 Definitions.

As used in this part --

Accident means an occurrence associated with the

operation of a vehicle, if as a result --

(1) An individual dies;

(2) An individual suffers a bodily injury and immediately

receives medical treatment away from the scene of the

accident;

(3) With respect to an occurrence in which the mass

transit vehicle involved is a bus, electric bus, van, or

automobile, one or more vehicles incurs disabling damage as

the result of the occurrence and is transported away from the

scene by a tow truck or other vehicle;

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(4) With respect to an occurrence in which the mass

transit vehicle involved is a rail car, trolley car, trolley bus,

or vessel, the mass transit vehicle is removed from revenue

service.

Administrator means the Administrator of the Federal

Transit Administration or the Administrater’s designee.

Anti-drug program means a program to detect and deter

the use of prohibited drugs as required by this part.

Canceled test means a test that has been declared invalid

by a Medical Review Officer. It is neither a verified positive

nor a verified negative test, and includes a specimen rejected

for testing by a laboratory.

Certification means a recipient’s written statement,

authorized by the organization’s governing board or other

authorizing official, that the recipient has complied with the

provisions of this part. (See § 653.77 for certification

requirements. )

Chain-of-custody means the procedures in part 40 of this

title concerning the handling of a urine specimen.

Consortium means an entity, including a group or

association of employers, operators, recipients, subrecipients,

or contractors, which provides drug testing as required by this

part, or other DOT drug testing rule, and which acts on behalf

of the employer.

Contractor means a person or organization that provides

a service for a recipient, subrecipient, employer, or operator

consistent with a specific understanding or arrangement. The

understanding can be a written contract or an informal

Tla

arrangement that reflects an ongoing relationship between the

parties.

Covered employee means a person, including an applicant

or transferee, who performs a safety-sensitive function for an

entity subject to this part; however, a volunteer is covered

only if operating a vehicle designed to transport sixteen or

more passengers, including the driver.

Disabling damage means damage which precludes

departure of a motor vehicle from the scene of the accident in

its usual manner in daylight after simple repairs.

(1) Inclusion. Damage to motor vehicles that could have

been driven, but would have been further damaged if so

driven.

(2) Exclusions.

(i) Damage which can be remedied temporarily at the

scene of the accident without special tools or parts.

(ii) Tire disablement without other damage even if no

spare tire is available.

(iii) Headlamp or taillight damage.

(iv) Damage to turn signals, horn, or windshield wipers

which makes them inoperative.

DOT means the United States Department of

Transportation.

DOT agency means an agency (or “operating

administration”) of the United States Department of

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Transportation administering regulations requiring drug

testing (see parts 199, 219, 382, and 653 of this title; 14 CFR

part 121, Appendix J; 33 CFR part 95; and 46 CFR parts 4

and 16).

Employer means a recipient or other entity that provides

mass transportation service or which performs a safety-

seisitive function for such recipient or other entity. This term

includes subrecipients, operators, and contractors.

FTA means the Federal Transit Administration, an agency

of the U.S. Department of Transportation.

Large operator means a recipient or subrecipient primarily

operating in an urbanized area of 200,000 or more in

population.

Medical Review Officer (MRO) means a licensed

physician (medical doctor or doctor of osteopathy) responsible

for receiving laboratory results generated by an employer’s

drug testing program who has knowledge of substance abuse

disorders and has appropriate medical training to interpret and

evaluate an individual’s confirmed positive test result together

with his or her medical history and any other relevant

biomedical information.

Positive rate means the number of positive results for

random drug tests conducted under this part plus the number

of refusals of random tests required by this part, divided by

the total number of random drug tests conducted under this

part plus the number of refusals of random tests required by

this part.

Prohibited drug means marijuana, cocaine, opiates,

amphetamines, or phencyclidine.

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Railroad means all forms of non-highway ground

transportation that run on rails or electromagnetic guideways,

including (1) commuter or other short-haul rail passenger

service in a metropolitan or suburban area, as well as any

commuter rail service which was operated by the

Consolidated Rail Corporation as of January 1, 1979, and (2)

high speed ground transportaticn systems that connect

metropolitan areas, without regard to whether they use new

technologies not associated with traditional railroads. Such

term does not include rapid transit operations within an urban

area that are not connected to the general railroad system of

transportation.

Recipient means an entity receiving Federal financial

assistance under section 3, 9, or 18, of the FT Act, or under

section 103(e)(4) of title 23 of the United States Code.

Refuse to submit means that a covered employee fails to

provide a urine sample as required by 49 CFR Part 40,

without a genuine inability to provide a specimen (as

determined by a medical evaluation), after he or she has

received notice of the requirement to be tested in accordance

with the provisions of this part, or engages in conduct that

clearly obstructs the testing process.

Safety-sensitive function means any of the following

duties:

(1) Operating a revenue service vehicle, including when

not in revenue service;

(2) Operating a nonrevenue service vehicle, when required

to be operated by a holder of a Commercial Driver’s License;

74a

(3) Controlling dispatch or movement of a revenue service

vehicle;

(4) Maintaining a revenue service vehicle or equipment

used in revenue service, unless the recipient receives section

3 funding and is in an area of less than 50,000 in population

or section 18 funding and contracts out such services; or

(5) Carrying a firearm for security purposes.

Small operator means a recipient or subrecipient primarily

operating in a nonurbanized area or in an urbanized area of

less than 200,000 in population.

Vehicle means a bus, electric bus, van, automobile, rail

car, trolley car, trolley bus, or vessel. A mass transit vehicle

is a vehicle used for mass transportation or for ancillary

services.

Verified negative (drug test result) means a drug test result

reviewed by a medical review officer and determined to have

evidence of prohibited drug use.

Verified positive (drug test result) means a drug test result

reviewed by a medical review officer and determined to have

evidence of prohibited drug use.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.