Am. Fed'n of State v. Scott

• Decision Date: 29 May 2013
• Docket Number: No. 12–12908.,12–12908.
• Parties: AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 79, Richard Flamm, Plaintiffs–Appellees, v. Rick SCOTT, in his official capacity as Governor of the State of Florida, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

717 F.3d 851

AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 79, Richard Flamm, Plaintiffs–Appellees,

v.Rick SCOTT, in his official capacity as Governor of the State of Florida, Defendant–Appellant.

No. 12–12908.

United States Court of Appeals,Eleventh Circuit.

May 29, 2013.

Shalini Goel Agarwal, Randall C. Marshall, ACLU Foundation of Florida, Inc., Miami, FL, Peter G. Walsh, David W. Singer & Associates, Hollywood, FL, for Plaintiffs–Appellees.

Jesse Panuccio, Florida Dept. of Economic Opportunity, Michael Sevi, Charles M. Trippe, Executive Office of the Governor, Tallahassee, FL, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS, BLACK and SILER,^* Circuit Judges.

MARCUS, Circuit Judge:

This appeal presents two closely related issues: first, the extent to which an executive order that mandates suspicionless drug testing of 85,000 state employees violates the Fourth Amendment; and, second, the propriety of the district court's decision to enjoin the Governor of Florida from testing all 85,000 covered employees. The district court, confronted with a suspicionless drug testing policy that almost certainly sweeps far too broadly and hence runs afoul of the Fourth Amendment in many of its applications, granted relief that also swept too broadly and captured both the policy's constitutional applications and its unconstitutional ones. We therefore vacate the district court's order and remand for further proceedings.

Confusion regarding the scope of the relief that the plaintiffs requested has plagued this lawsuit from its inception in 2011. In that year, Appellant Rick Scott, the Governor of Florida, issued Executive Order 11–58 (“EO”), which mandated two types of suspicionless drug testing: random testing of all employees at state agencies within his control, and pre-employment testing of all applicants to those agencies. Appellee American Federation of State, County, and Municipal Employees Council 79 (“Union”), which represents many employees covered by the EO, sued in the United States District Court for the Southern District of Florida to invalidate the EO, and to enjoin its implementation, as unconstitutional under the Fourth Amendment. Initially, as the Union itself has conceded, its challenge was exclusively facial in nature and sought to strike down the entire EO rather than to limit its applicability. By the summary-judgment stage, however, the Union urged the district court to construe its complaint as making both a facial and an as-applied challenge. The Union's as-applied challenge contended only that the EO was unconstitutional when applied to employees not occupying safety-sensitive positions—a group that the Union estimated to be roughly 60 percent of the covered employees.

The district court granted summary judgment to the Union and denied summary judgment to the State. In its order, the district court concluded that the State's justifications for testing all of its employees, including those in non-safety-sensitive positions, were insufficient. The court then turned to the question of what relief it would grant. The district court granted relief that it described as “as-applied” but that remained essentially facial in nature: the court invalidated the EO, and enjoined its implementation, as to all 85,000 current state employees. This relief covered every single employee and disregarded any distinction between safety-sensitive and non-safety-sensitive positions.

Yet, as the Supreme Court has established, a party is entitled to facial invalidation of a law on Fourth Amendment grounds only if the party can demonstrate that there are no constitutional applications of that law. In this case, the district court declared the EO unconstitutional as to all current state employees. This relief swept too broadly, enjoined both constitutional and unconstitutional applications of the EO, and did so without examining the specific job categories to be tested. What the Supreme Court's case law requires, in contrast, is that the trial court balance the governmental interests in a suspicionless search against each particular job category's expectation of privacy. Among the covered state employees, for example, are law enforcement personnel who carry firearms as well as employees tasked with operating heavy machinery or large vehicles—groups that the Supreme Court has held, in a line of precedent beginning with Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), may be drug tested without individualized suspicion. As to those safety-sensitive employees, the EO's application would most likely be constitutional, and, therefore, the district court's order cannot stand as written.

The State, however, asks us to do more than vacate and remand. It argues that the Governor is entitled to summary judgment, and that we should reverse the district court, because the EO is constitutional as applied to all 85,000 state employees. At bottom, the State wants us to approve of a drug testing policy of far greater scope than any ever sanctioned by the Supreme Court or by any of the courts of appeals. In order to meet its burden of justifying the EO, the State offers several reasons, stated only at the highest order of abstraction, for why it can drug test all of its employees without any individualized suspicion. However, the Supreme Court has approved of suspicionless drug testing only when the government has demonstrated heightened interests, such as a serious threat to public safety, that apply narrowly to specific job categories of employees. Yet during the summary judgment proceedings, the State refused to provide reasons that apply narrowly to specific job categories, which undoubtedly hindered the district court from conducting its balancing calculus at the proper level of specificity. On remand, the State must meet its burden of demonstrating important special needs on a job-category-by-category basis. Its current arguments have failed to convince us to direct summary judgment in its favor.

I.

A.

On March 22, 2011, Governor Scott issued Executive Order 11–58. The EO directed all state agencies “within the purview of the Governor ... to provide for pre-employment drug testing for all prospective new hires and for random drug testing of all employees within each agency.” The EO further instructed the agencies to “provide for the potential for any employee ... to be tested at least quarterly.” Approximately 85,000 people, or 77 percent of the State's workforce, are covered by the EO.

Although the Executive Order does not specify a method of drug testing, the State indicated in the district court that urinalysis would be the method used to implement the testing program. The testing process would afford the person providing the sample “individual privacy” unless there is reason to believe that a particular individual intends to alter or substitute the sample. In addition, the results of the drug tests cannot be used as evidence, obtained in discovery, or otherwise disclosed in any public or private proceeding.

The EO represented a significant expansion of the State's employee drug testing regime. Prior to the EO's issuance, Florida's Drug–Free Workplace Act (“DFWA”), Fla. Stat. § 112.0455, permitted drug testing in more limited instances. State agencies were authorized to test: job applicants to “safety-sensitive position[s],” meaning “any position, including a supervisory or management position, in which a drug impairment would constitute an immediate and direct threat to public health or safety,” § 112.0455(5)(f) & (m); current employees, if the employer had reasonable suspicion; current employees, if the test was “conducted as part of a routinely scheduled employee fitness-for-duty medical examination”; and current employees who entered “an employee assistance program for drug-related problems.” See§ 112.0455(7)(a)–(d). This version of the statute notably did not provide for random suspicionless testing of any current employees, even those employed in safety-sensitive positions.

Other statutes or administrative regulations provided for suspicionless testing of current employees in specific departments. The Department of Corrections (“DOC”), for instance, provided for random suspicionless testing of its employees. SeeFla. Stat. § 944.474. The Department of Juvenile Justice (“DJJ”) also required random suspicionless drug testing of its employees. The Department of Transportation (“DOT”) and the Department of Environmental Protection (“DEP”), meanwhile, required random suspicionless testing of their safety-sensitive employees, particularly those who held commercial driver's licenses.

In 2012, the Florida Legislature amended the Drug–Free Workplace Act and substantially broadened it. The current version of Fla. Stat. § 112.0455 permits random testing of all employees at three-month intervals, see§ 112.0455(7)(c) (2012), and expands the definition of “job applicant” to cover all job applicants, see§ 112.0455(5)(f) (2012). In essence, the current version of the DFWA authorizes what the EO mandates.

The text of the Executive Order offers several justifications for this sweeping policy, including, among others, that: (1) “the State, as an employer, has an obligation to maintain discipline, health, and safety in the workplace”; (2) “illegal drug use has an adverse [e]ffect on job performance,” including the risk of absenteeism, greater burden on state health benefit programs, and a decline in productivity; and (3) drug use poses a risk to the public, which “interacts daily with state employees.”

Prior to the issuance of the EO, the State had collected data from random drug testing of job applicants and employees at three departments—the Department of Transportation, the Department of Juvenile Justice, and the Department of Corrections. Random testing at DOT and DJJ yielded positive...