839 F.2d 575 (9th Cir. 1988), 85-2891, Railway Labor Executives' Ass'n v. Burnley

Docket Nº:85-2891.
Citation:839 F.2d 575
Party Name:2 Indiv.Empl.Rts.Cas. 1601, RAILWAY LABOR EXECUTIVES' ASSOCIATION; United Transportation Union General Committee of Adjustment, the Southern Pacific Company; Brotherhood of Locomotive Engineers General Committee of Adjustment, the Southern Pacific Company; and Brotherhood of Railroad Signalmen, Plaintiffs-Appellants, v. James H. BURNLEY [*], Secret
Case Date:February 11, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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839 F.2d 575 (9th Cir. 1988)

2 Indiv.Empl.Rts.Cas. 1601,

RAILWAY LABOR EXECUTIVES' ASSOCIATION; United

Transportation Union General Committee of Adjustment, the

Southern Pacific Company; Brotherhood of Locomotive

Engineers General Committee of Adjustment, the Southern

Pacific Company; and Brotherhood of Railroad Signalmen,

Plaintiffs-Appellants,

v.

James H. BURNLEY [*], Secretary, Department of

Transportation; John R. Riley, Administrator,

Federal Railroad Administration,

Defendants- Appellees.

No. 85-2891.

United States Court of Appeals, Ninth Circuit

February 11, 1988

Argued and Submitted July 8, 1986.

Page 576

[Copyrighted Material Omitted]

Page 577

Lawrence M. Mann, Washington, D.C., for plaintiffs-appellants.

Marc Richman, Daniel Carey Smith, Washington, D.C., for defendants-appellees.

Alan L. Schlosser, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court for the Northern District of California.

Before TANG, PREGERSON and ALARCON, Circuit Judges.

TANG, Circuit Judge:

The Railway Labor Executives' Association 1 and various railway labor organizations which are constituent members (collectively "RLEA") appeal the district court's grant of summary judgment for the government. RLEA challenges the constitutionality of Federal Railroad Administration (FRA) regulations mandating blood and urine tests of employees after certain train accidents and fatal incidents, and authorizing breath and urine tests after certain accidents, incidents and rule violations. RLEA also argues that the regulations violate provisions of the Railway Labor Act, the Federal Rehabilitation Act and the Federal Railroad Safety Act. We reverse.

BACKGROUND

The regulations at issue are codified in 49 C.F.R. Part 219 (1986). They were issued by the FRA after a two-year rulemaking process on August 2, 1985 and scheduled to become effective November 1, 1985. RLEA was a party to the administrative proceedings and filed a petition for reconsideration which the Secretary denied on October 28, 1985. It then filed suit in federal district court on October 31, 1985, and received a temporary restraining order prohibiting implementation of the regulations. The TRO remained in effect until the district court granted summary judgment for the government on December 9, 1985. RLEA sought and obtained a stay pending appeal from this court on January 3, 1986 but the Supreme Court vacated the stay on January 27, 1986. Dole v. RLEA, 474 U.S. 1099, 106 S.Ct. 876, 88 L.Ed.2d 914 (1986). The regulations thus went into effect February 10, 1986 with mandatory post-accident testing beginning March 10.

The portions of the new regulation which are the subject of this challenge are Subpart C, which requires post-accident testing, and Subpart D, which authorizes testing for "cause." The key provisions are summarized below, and set out in full in the margin.

The provisions of Subpart C mandate alcohol and drug testing for all covered employees involved in various events, including: major train accidents (involving a fatality, release of hazardous material with either evacuation or injury, or $500,000 damage to railroad property); impact accidents (involving a reportable injury 2 or damage to railroad property of $50,000); and fatal incidents (involving fatality of an on-duty railroad employee). 49 C.F.R. Sec. 219.201. 3 The regulations require that

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blood and urine samples be taken from all crew members of a train involved in such an accident or incident as soon as possible afterwards. Blood samples are to be taken at independent medical facilities by qualified medical professionals or technicians. 49 C.F.R. Sec. 219.203. 4 Refusal to provide a sample results in a 9 month period of disqualification. 49 C.F.R. Sec. 219.213. 5

The provisions of Subpart D authorize railroads to require covered employees to submit to breath or urine tests when a supervisor has a reasonable suspicion that an employee is under the influence or impaired by alcohol or drugs. To require a urine test, two supervisors must have reasonable suspicion, and if drug use is suspected, one of them must have been trained in spotting drug use. 49 C.F.R. Sec. 219.301(b)(1), 6 (c)(2) 7. The railroads may also require testing when an employee is involved in an accident or incident which must be reported under Part 225 and a supervisor has reasonable suspicion that his acts or omissions contributed to the accident. 49 C.F.R. Sec. 219.301(b)(2). 8 The

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railroads may also require testing when an employee violates a railroad operating rule listed in 49 C.F.R. Sec. 219.301(b)(3). 9

There are no factual disputes in this case except as to the extent of alcohol and drug abuse in the railroad industry and the number of accidents involving either. The record shows that, between 1975 and 1984, of 791 fatalities caused by railroad employees, 37 resulted from accidents or incidents involving alcohol or drug use, or 4.7 percent. The FRA contends the problem is more serious than the 4.7 percent figure would indicate because of underreporting by the railroad industry of alcohol and drug involvement, because of the increased dangers involved in railroad transport of hazardous materials, and because drug and alcohol use has grown more pervasive in recent years.

The district court assumed the seriousness of the problem, and the RLEA concedes that alcohol and drug use are serious hazards to railroad safety. Thus, although there is some difference of opinion about just how pervasive the problem is, the central dispute in this case is not a factual one. Rather, the case involves disputes as to the statutory authority for the rule and its constitutionality.

ANALYSIS

We review a grant of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986). We review questions of law de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

I. FOURTH AMENDMENT

To decide whether the drug tests mandated or authorized by the regulations violate the fourth amendment, we must first determine whether the amendment's prohibition of unreasonable searches and seizures applies to drug tests conducted at the instigation of the railroads pursuant to regulations adopted by the FRA. We hold that it does, both because the tests in question constitute searches within the meaning of the fourth amendment and because the federal government's role in promulgating the regulations in question is sufficient government action to subject the tests to the limitations of the fourth amendment.

  1. Drug and Alcohol Tests are Searches

    The fourth amendment protects the "right of the people to be secure in their

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    persons, houses, papers, and effects, against unreasonable searches and seizures...." These rights are implicated only if the conduct at issue infringes " 'an expectation of privacy that society is prepared to consider reasonable.' " O'Connor v. Ortega, --- U.S. ----, 107 S.Ct. 1492, 1497, 94 L.Ed.2d 714 (1987) (plurality opinion) (quoting United States v. Jacobsen, 466 U.S. 109, 113, 104 S.Ct. 1652, 1656, 80 L.Ed.2d 85 (1984)). The question we must first consider is whether a railroad employee has a reasonable expectation of privacy in the personal information contained in his body fluids.

    It has long been clearly settled that blood tests such as those mandated by 49 C.F.R. Sec. 219.203 are searches within the meaning of the fourth amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908 (1966).

    Every court that has considered the matter has similarly concluded that urine tests, such as those mandated by 49 C.F.R. Sec. 219.203 and authorized by 49 C.F.R. Sec. 219.301, are searches for fourth amendment purposes. See, e.g., Everett v. Napper, 833 F.2d 1507, 1509 (11th Cir.1987); Jones v. McKenzie, 833 F.2d 335, 338 (D.C.Cir.1987); National Fed'n of Fed. Employees v. Weinberger, 818 F.2d 935, 942 (D.C.Cir.1987); National Treasury Employees Union v. Von Raab, 816 F.2d 170, 176 (5th Cir.1987); McDonell v. Hunter, 809 F.2d 1302, 1307 (8th Cir.1987); Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264, 1266-67 (7th Cir.), cert. denied, 429 U.S. 1029, 97 S.Ct. 653, 50 L.Ed.2d 632 (1976); Amalgamated Transit Union, Local 1277 v. Sunline Transit Agency, 663 F.Supp. 1560, 1566 (C.D.Cal.1987); Feliciano v. City of Cleveland, 661 F.Supp. 578, 586 (N.D.Ohio 1987); Lovvorn v. City of Chattanooga, 647 F.Supp. 875, 879 (E.D.Tenn.1986); Capua v. City of Plainfield, 643 F.Supp. 1507, 1513 (D.N.J.1986); Allen v. City of Marietta, 601 F.Supp. 482, 488-89 (N.D.Ga.1985); Storms v. Coughlin, 600 F.Supp. 1214, 1217-18 (S.D.N.Y.1984); Smith v. City of East Point, 183 Ga.App. 659, 359 S.E.2d 692 (1987). The usual rationale is that urine testing is similar to blood testing because even though urine is routinely discharged from the body it is "normally discharged and disposed of under circumstances that merit protection from arbitrary interference." Capua, 643 F.Supp. at 1513. Because people have reasonable expectations of privacy in the personal information body fluids contain, the governmental taking of a urine specimen constitutes a search and seizure within the meaning of the fourth amendment. Id.

    It has also been held, with less discussion of the rationale, that breath tests are searches within the meaning of the fourth...

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