Am. Fed'n of State Cnty. & Mun. Emps. (AFSCME) Council 79 v. Scott

• Decision Date: 26 April 2012
• Docket Number: Case No. 11–civ–21976–UU.
• Citation: 23 Fla. L. Weekly Fed. D 215,857 F.Supp.2d 1322
• Parties: AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff, v. Rick SCOTT, in his official capacity as Governor of the State of Florida, Defendant.
• Court: U.S. District Court — Southern District of Florida

857 F.Supp.2d 1322

23 Fla. L. Weekly Fed. D 215

AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES (AFSCME) COUNCIL 79, Plaintiff,

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

Case No. 11–civ–21976–UU.

United States District Court,

S.D. Florida.

April 26, 2012.

Randall C. Marshall, American Civil Liberties Union Foundation of Florida, Shalini Goel Agarwal, ACLU Foundation of Florida, Inc., Peter G. Walsh, Stabinski & Funt, Miami, FL, for Plaintiff.

Jesse Michael Panuccio, Michael M. Sevi, Executive Office of the Governor, Tallahassee, FL, for Defendant.

ORDER ON CROSS–MOTIONS FOR SUMMARY JUDGMENT

URSULA UNGARO, District Judge.

THIS CAUSE is before the Court upon Plaintiff's Motion for Summary Judgment and Defendant's Motion for Summary Judgment. D.E. 33, 35.

THE COURT has considered the Motions, the pertinent portions of the record, and is otherwise fully advised on the premises.

I. BACKGROUND

The instant motions address the constitutionality of Executive Order 11–58 (“EO”). Issued by Defendant, Governor Rick Scott (“the Governor”) on March 22, 2011, the EO directs all state agencies “within the purview of the Governor” to provide for mandatory drug testing for all “prospective new hires.” The EO also requires that the covered agencies provide for random drug testing of all existing employees such that any employee at these agencies can be tested at least quarterly. By drug testing, the Governor means exclusively urinalysis.¹ Approximately 85,000 individuals, comprising 77 percent of state government personnel, work at the covered agencies. The parties have not provided figures for the typical yearly number of new hires at the covered agencies. D.E. 19–1; D.E. 36 n. 2; D.E. 49 ¶ 16.

Plaintiff, the American Federation of State, Country, and Municipal Employees (AFSCME) Council 79, (“the Union”), which represents approximately 40,000 employees at the covered agencies, D.E. 34–22, contends that the EO violates the Fourth Amendment's prohibition of unreasonable searches. D.E. 33. The Governor makes three arguments for why the Union's Complaint should be dismissed as a matter of law. He argues that the Union lacks standing to challenge the EO. He claims that the EO does not violate the Fourth Amendment. Finally, he characterizes the Union's challenge to the EO as “facial,” and contends that the Union cannot show that the EO is unconstitutional in all possible applications. D.E. 35.

The Court rules that the EO is inconsistent with controlling case law, and therefore grants the Union's motion for the reasons herein.

II. STANDARD OF REVIEW

Summary judgment is appropriate only when the moving party meets its burden of demonstrating that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The Supreme Court explained in Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970), that when assessing whether the movant has met this burden, the court should view the evidence and all factual inferences in the light most favorable to the party opposing the motion.

The party opposing the motion may not simply rest upon mere allegations or denialsof the pleadings; after the moving party has met its burden of coming forward with proof of the absence of any genuine issue of material fact, the nonmoving party must make a sufficient showing to establish the existence of an essential element to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir.1997); Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

III. QUESTIONS PRESENTED

Here, the parties present no genuine issue of material fact. The case turns instead on three questions of law raised by the parties in their respective motions for summary judgment (D.E. 33 and D.E. 35):(1) does the Union have standing to challenge the EO on its own behalf, on behalf of its members, and on behalf of prospective new hires?; (2) is the EO unconstitutional because it requires state agencies to conduct unreasonable searches?; and (3) does the Union bring a facial or an as-applied challenge and to what extent does this affect the relief that can be granted?

IV. DISCUSSION

Question (1)—Standing

The Union brings the present action under 42 U.S.C. § 1983, asserting that the EO violates the Fourth Amendment's prohibition of “unreasonable searches and seizures.” ² The Eleventh Circuit recognizes two theories under which an association has standing to sue under § 1983: “(1) to protect the rights of its members and (2) to protect its own rights as a corporate institution.” White's Place, Inc. v. Glover, 222 F.3d 1327, 1328 (11th 2000) (quoting Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1276 (5th Cir.1981)).³ Accordingly, the Union must establish that it has standing to sue either on its own behalf or on behalf of its members. Id. at 1328–29. The Court addresses each of these possibilities in turn.

(A) The Union's standing to sue on its own behalf

To sue on its own behalf, the Union must establish that: (1) it suffers or will suffer an injury-in-fact that is concrete, particularized, and imminent (“injury”); (2) that the injury is fairly traceable to the Governor's challenged action (“traceability”); and (3) that the injury will likely be redressed by a favorable decision (“redressability”). Friends of the Earth, Inc. v. Laidlaw Environmental Servs. (TOC), Inc., 528 U.S. 167, 180–81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000).

The Governor does not argue that the Union fails to meet the second and third requirements, and this Court, in any event, finds that these elements are satisfied. Instead, the Governor argues that the injury that the Union asserts-a search contrary to the Fourth Amendment-provides standing only to the individuals whose Fourth Amendment rights are infringed, and not to an association, such as the Union. D.E. 48 at 2–3. Thus, the outcome here turns on whether the Union has demonstrated that it has or will suffer an injury in fact.

The Supreme Court has explained that injury-in-fact means “an invasion of a legally protected interest which is (a) concrete and particularized, ... and (b) actual and imminent, not ‘conjectural’ or ‘hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). In the situation of an association suing on its own behalf, the injury-in-fact requirement is satisfied where “the defendant's illegal acts impair [the association]'s ability to engage in its projects by forcing the organization to divert resources to counteract those illegal acts.” Fla. State Conf. of the NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir.2008) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982)); see also Common Cause/Georgia v. Billups, 554 F.3d 1340, 1350–51 (11th Cir.2009) (applying Browning to hold that plaintiff-association demonstrated injury where the alleged constitutional violation caused plaintiff-association “to divert resources from its regular activities” to address the alleged harm). The Browning court added that the extra expenses incurred to counteract the illegal act do not need to be calculated in advance of the litigation and can be small. 522 F.3d at 1165 (“The fact that the added cost has not been estimated and may be slight does not affect standing, which requires only a minimal showing of injury.”) (quoting Ind. Democratic Party v. Rokita, 458 F.Supp.2d 775 (S.D.Ind.2006)), aff'd sub nom., Crawford v. Marion County Election Bd., 472 F.3d 949 (7th Cir.2007), aff'd, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008).

In this case, the Union's special counsel, Alma R. Gonzalez, testifies that the EO subjects more than 40,000 Union members to suspicionless drug testing. Gonzalez insists that if the EO is upheld, the Union will have to devote considerable resources “dealing with the implications of the policy.” Specifically, Gonzalez claims that since drug testing is a mandatory subject of collective bargaining, the Union will have to engage in protracted negotiations over the policy, which, in turn, will detract from the Union's ability to bargain effectively over other issues. Gonzalez further testifies that the Union will have to expend considerable resources representing Union members selected for testing. Here again, the Union's concern, according to Gonzalez's testimony, is that representing members selected for testing will detract from its ability to represent employees in other matters. D.E. 34–22.

The Court is persuaded that the Union has satisfied the injury in fact requirement as expressed above in Browning and Common Cause/Georgia. Under Florida law, public employees have the right to be represented by any employee organization of their own choosing and to engage in collective bargaining over the terms and conditions of their employment. Fla. Stat. § 447.301(2). The Governor responds that the Union has never initiated collective bargaining over drug testing even though, under existing state law, some Union members have been subjected to testing for years. D.E. 51 at 1. But the EO is also different than the existing testing regime. Currently, the Drug–Free Workplace Act, Fla. Stat. § 112.0455, authorizes pre-employment, reasonable suspicion, routine fitness-for-duty, and follow-up testing, but not random testing of all employees under the purview of the Governor as does the EO. See supra n. 1. The scope of the random testing provision in the EO is particularly significant for present purposes because the Florida Supreme Court has expressed the view that random testing of all public safety personnel—much less then the far broader swath of employees covered by the EO—triggers collective bargaining unless the...