19 Solid Waste Dept. Mechanics v. City of Albuquerque

• Decision Date: 22 September 1998
• Docket Number: No. 96-2177,96-2177
• Citation: 156 F.3d 1068
• Parties: 14 IER Cases 629, 98 CJ C.A.R. 5067 19 SOLID WASTE DEPARTMENT MECHANICS, Sam Aguilar, Rudy Archuleta, Jr., Edward Baca, Paul Barboa, M.E. Barreras, Gary L. Chavez, Johnny Chavez, Anthony Demello, Michael Gutierrez, Jimmy Herrera, Bill Lipitz, John Lujan, Frank Ortega, Aaron Romero, Donald Scott, Frank Serna, Arturo Torres, Jr., James Vigil, and Rory Wessel, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE; Louis E. Saavedra, Mayor, individually and in his official capacity; Arthur Blumenfeld, Ph.D., Chief Administrative Officer, individually and in his official capacity; Lawrence Rael, Assistant Chief Administrative Officer, individually and in his official capacity; David Campbell, City Attorney and Chairman of the Substance Abuse Task Force, individually and in his official capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1068

156 F.3d 1068

14 IER Cases 629, 98 CJ C.A.R. 5067

19 SOLID WASTE DEPARTMENT MECHANICS, Sam Aguilar, Rudy

Archuleta, Jr., Edward Baca, Paul Barboa, M.E. Barreras,

Gary L. Chavez, Johnny Chavez, Anthony Demello, Michael

Gutierrez, Jimmy Herrera, Bill Lipitz, John Lujan, Frank

Ortega, Aaron Romero, Donald Scott, Frank Serna, Arturo

Torres, Jr., James Vigil, and Rory Wessel, Plaintiffs-Appellees, v. CITY OF ALBUQUERQUE; Louis E. Saavedra, Mayor, individually and in his official capacity; Arthur Blumenfeld, Ph.D.,

Chief Administrative Officer, individually and in his

official capacity; Lawrence Rael, Assistant Chief

Administrative Officer, individually and in his official

capacity; David Campbell, City Attorney and Chairman of the

Substance Abuse Task Force, individually and in his official

capacity, Defendants-Appellants.

No. 96-2177.

United States Court of Appeals, Tenth Circuit.

Sept. 22, 1998.

Charles W. Kolberg, Assistant City Attorney, City of Albuquerque, Albuquerque, NM, appearing for Defendants-Appellants.

Paul S. Livingston, Albuquerque, NM, appearing for Plaintiffs-Appellees.

Before TACHA, BRORBY, and BRISCOE, Circuit Judges.

TACHA, Circuit Judge.

Plaintiffs are nineteen Solid Waste Department mechanics who originally filed suit in 1993 to challenge the constitutionality of the drug- and alcohol-testing policy of the City of Albuquerque as it was applied to them. The mechanics challenged the policy on several grounds. Germane to this appeal is the mechanics' assertion that the policy violated their right to be free from unreasonable searches as guaranteed by the Fourth Amendment.

BACKGROUND

The mechanics' primary job responsibility is the repair of the City's fleet of large diesel trash trucks. Their work includes repairs to the brakes, steering, front end, hydraulics, and electrical systems of the trucks. They perform their work in an industrial repair shop where large machines and replacement The drug-testing policy under consideration here was initially set forth in 1991. The policy required employees with jobs requiring a commercial driver's license (CDL) to submit to and pass a substance abuse test before they could obtain or renew a CDL. In 1992, the City placed Mechanics III, a classification that includes the Solid Waste Department mechanics, on a list of job categories for which a CDL (and therefore a substance abuse test) was required. The policy also stated that no employee could operate or drive City vehicles or equipment that require a CDL without a current City vehicle/equipment operator's permit. Obtaining a permit, like a CDL, required that the applicant undergo a substance abuse test.

parts are mechanically lifted for repairs. They work under general supervision, and usually their work is not inspected by others before a repaired truck is returned to service. The mechanics are not authorized to drive City vehicles on the streets or highways.

Both the plaintiffs and defendants moved for summary judgment on Fourth Amendment grounds. The district court entered judgment for the plaintiffs and struck down the City policy, concluding "that while the city has valid public interests in establishing a drug enforcement program, those interests do not outweigh the interference with individual liberty that results from requiring this particular class of employees--nondriving, solid waste mechanics--to undergo warrantless drug tests." 19 Solid Waste Dep't Mechanics v. City of Albuquerque, CIV No. 93-1385, slip op. at 11 (D.N.M. Oct. 11, 1994). In reaching this conclusion, the court examined in some detail the City's assertion that it instituted the drug testing policy because of concerns for workplace and public safety and employee health. The district court evaluated the City's proffered safety and health reasons and determined that they were not "compelling" enough under Supreme Court precedent to justify warrantless and suspicionless drug tests. Following the district court's decision, the City repealed the drug-testing policy. Subsequently, the district court awarded $2,700 in damages to the mechanics. The City now appeals that damage award by attacking the correctness of the district court's decision on the merits. The City argues the district court erred in granting the plaintiffs' motion for summary judgment by misapplying the balancing test that governs the constitutionality of urinalysis drug tests under the Fourth Amendment. The City asserts that a proper application of that balancing test should have led the district court to grant the City's motion for summary judgment. We affirm the decision of the district court.

DISCUSSION

We first address the mechanics' assertion that the case should be dismissed as moot. After the district court granted summary judgment to the mechanics, the City revoked the drug-testing policy at issue. The district court, however, awarded the mechanics $2,700 in damages, and, at the time of oral argument, the plaintiffs also had a motion for attorney's fees pending in the district court. In order for the City to contest its liability for the damage award or for any attorney's fees, it must challenge the merits of the underlying decision. Thus, the City's liability for damages and attorney's fees as a result of the judgment against it "saves this cause from the bar of mootness." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978).

We review a district court's grant or denial of summary judgment de novo. See Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.1995). Summary judgment is appropriate if the record shows 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. See id.; Fed.R.Civ.P. 56(c). The moving party is entitled to summary judgment "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When applying this standard, we examine the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th Cir.1996).

When a government employer requires its employees to submit to a urinalysis test for the purpose of detecting illegal drug use, the test is a search subject to the Fourth Amendment and must be reasonable. See Benavidez v. City of Albuquerque, 101 F.3d 620, 623-24 (10th Cir.1996). Ordinarily, a search must be based on individualized suspicion of wrongdoing to be considered reasonable. See id. at 624. In some cases, however, where governmental concerns other than crime detection are at issue, the Supreme Court has allowed the government to require drug-testing even in the absence of individualized suspicion. Three Supreme Court cases are illustrative. In Skinner v. Railway Labor Executives' Assoc., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), the Court upheld the constitutionality of federal regulations that require railroads to test employees involved in train accidents for drug use and allow railroads to test employees who violate certain safety rules. National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), decided the same day as Skinner, upheld the testing of Customs Service employees applying for positions involving interdiction of illegal drugs or requiring them to carry firearms. In Vernonia School District 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), the Court upheld the suspicionless urine testing of junior and senior high school student-athletes.

In each of the above Supreme Court cases, in evaluating the constitutionality of the respective testing programs, the Court balanced the intrusion on individuals' privacy interests against the promotion of legitimate governmental interests. See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Under that balancing equation, on one side, the Court examines the nature of the privacy interest upon which the search at issue intrudes and the character of the intrusion that is complained of. See Acton, 515 U.S. at 654, 658, 115 S.Ct. 2386. On the other side of the balancing, the Court "consider[s] the nature and immediacy of the governmental concern at issue ... and the efficacy of [the challenged test] for meeting it." Id. at 660, 115 S.Ct. 2386.

In Chandler v. Miller, 520 U.S. 305, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997), the Supreme Court's most recent drug-testing case, the Court added a step to the analysis it had followed in Skinner, Von Raab, and Acton. See Todd v. Rush County Schools, 139 F.3d 571, 572 (7th Cir.1998) (Ripple, J., dissenting from denial of rehearing en banc). Prior to conducting the balancing, in surveying the public interests at issue, the Court said that we must specifically inquire into whether the drug-testing program at issue is warranted by a "special need." See Chandler, 520 U.S. at ----, 117 S.Ct. at 1303. Only if we can say that the government has made that special need showing do we then inquire into the relative strengths of the competing private and public interests to settle whether the testing requirement is reasonable under the Fourth Amendment. If the government has not made its special need showing, then the inquiry is complete, and the testing program must be struck down as unconstitutional. Thus, the first, and ultimately decisive, question for this appeal is whether the City of Albuquerque's drug testing program is warranted by a special need.

We turn to the details of Chandler to understand what the government's special need showing requires. Chandler involved a Georgia requirement that candidates vying for designated state offices certify that they have taken a drug test and that the test result was negative. See id. 520 U.S. at ----, 117 S.Ct....