Bluestein v. Skinner, s. 88-7503
| Decision Date | 10 July 1990 |
| Docket Number | Nos. 88-7503,88-7508,89-70111,89-70138 and 89-70139,89-70024,s. 88-7503 |
| Citation | 908 F.2d 451 |
| Parties | , 119 Lab.Cas. P 10,781, 5 Indiv.Empl.Rts.Cas. 887 Michael S. BLUESTEIN; Dean N. Chantiles; Orange County Airport Association, Petitioners, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Federal Aviation Administration, Respondents. Richard S. LINN, Petitioner, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Federal Aviation Administration, Respondents. Sheri ALBERT; Charles McCune, Petitioners, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Federal Aviation Administration, Respondents. ASSOCIATION OF PROFESSIONAL FLIGHT ATTENDANTS, Petitioner, v. Samuel K. SKINNER, Secretary of Transportation, Department of Transportation, Federal Aviation Administration, Respondents. INDEPENDENT UNION OF FLIGHT ATTENDANTS, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent. AIRLINE PILOTS ASSOCIATION, INTERNATIONAL, Petitioner, v. FEDERAL AVIATION ADMINISTRATION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Walter Kamiat and Laurence Gold, Washington, D.C., for the Air Line Pilots Ass'n, Ass'n of Flight Attendants, Intern. Ass'n of Machinists and Aerospace Workers, Intern. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Transp.-Communications Intern. Union.
Gary Green and Jerry Anker, Washington, D.C., for the Air Line Pilots Ass'n.
Stephen P. Berzon, Fred H. Altshuler, and Michael Rubin, Altshuler & Berzon, San Francisco, Cal., Scott D. Raphael, Newport Beach, Cal., for Michael S. Bluestein, Dean N. Chantilis, and Orange County Airport Ass'n.
Deborah Greenfield, Matthew Finucane, and Edward Gilmartin, Washington, D.C., for the Ass'n of Flight Attendants.
Allison Beck, Washington, D.C., for the Intern. Ass'n of Machinists and Aerospace Workers.
James T. Grady and Wilma B. Liebman, Washington, D.C., for the Intern. Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America.
David Rosen and Arthur M. Luby, Washington, D.C., for the Transport Workers of America.
Larry Mann, Washington, D.C., for the Transp.-Communications Intern. Union.
Lee Seham, Seham, Klein & Zelman, New York City, Law Offices of Thornton C. Bunch, Jr., San Francisco, Cal., for Richard S. Linn.
Stewart Weinberg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., David J. Aronofsky, Arent Fox, Kintner, Plotkin & Kahn, Washington, D.C., William Jolley, Jolley, Walsh, Hager & Gordon, Kansas City, Mo., for Sheri Albert, Charles McCune, Independent Federation of Flight Attendants.
Michael Gottesman, George Cohen, and Mady Gilson, Bredhoff & Kaiser, Washington, D.C., for the Ass'n of Professional
Flight Attendants and Independent Union of Flight Attendants.
Diane Liff, Gen. Counsel's Office, Dept. of Transp., Robert V. Zener and Leonard Schaitman, Dept. of Justice, Civ. Div., Washington, D.C., Kenneth W. Starr, Sol. Gen., Washington, D.C., for respondents.
Petition for Review of an Order of the Federal Aviation Administration.
Before CHAMBERS, CANBY and NORRIS, Circuit Judges.
This is a petition for review of Federal Aviation Administration (FAA) regulations requiring random drug testing of flight crew members, maintenance personnel, air traffic controllers, and several other categories of employees in the private commercial aviation industry. Petitioners argue that the regulations violate the Fourth Amendment and are arbitrary and capricious in violation of Sec. 10(e) of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). We reject both of petitioners' arguments and uphold the regulations.
The FAA initially proposed random drug testing in an advance notice of proposed rule making. 51 Fed.Reg. 44432 (Dec. 9, 1986). After receiving over 650 written comments, the FAA issued a notice of proposed rulemaking. 53 Fed.Reg. 8368 (March 14, 1988). Over 260 written comments were filed in response to this notice, and the FAA also held a series of public hearings. The final rule was issued on November 21, 1988. 53 Feg.Reg. 47024.
The FAA concluded that while drug use is not "widespread" among commercial aviation personnel and there is no "overwhelming" drug problem in the industry, nevertheless the record "does show concrete evidence of drug use in the commercial aviation sector." 53 Fed.Reg. 47029, 47030. Accordingly, the FAA decided that "[i]n order to ensure that aviation safety is not compromised by a failure to detect drug users in the aviation industry, the FAA believes that it is appropriate and necessary to establish a comprehensive anti-drug program at this time." 53 Fed.Reg. 47025.
The regulations adopted by the FAA require employee drug testing to be performed by every Part 121 and 135 certificate holder (generally, commercial air carriers, both scheduled and unscheduled, carrying passengers or cargo 1), as well as each air traffic control facility. 2 53 Fed.Reg. 47057-58 (App. I--definition of "employer"). The following employees must be tested: (a) flight crew members; (b) flight attendants; (c) flight instructors or ground instructors; (d) flight testing personnel; (e) aircraft dispatchers; (f) maintenance personnel; (g) aviation security or screening personnel; and (h) air traffic controllers. 53 Fed.Reg. 47058 (App. I Sec. III). Tests must be performed for marijuana, cocaine, opiates, phencyclidine (PCP) and amphetamines. Id., Sec. IV.
The regulations require testing of these employees on a random basis. Id., Sec. V.C. To eliminate any supervisory discretion in selecting the employees to be tested and to avoid "potential bias toward and selective harassment of an employee," 53 Fed.Reg. at 8375, selection of employees to be tested must be made "using a random number table or a computer-based number generator that is matched with an employee's social security number, payroll identification number, or any other alternative method approved by the FAA." 53 Fed.Reg. 47058, Sec. V.C. After the first year of testing, employers must conduct random tests at an annualized rate of not less than 50 percent of the employees performing the functions listed. Id., Sec. V.C. (c)(2). 3
The procedures under which the testing is to be done are described in Procedures for Transportation Workplace Drug Testing Program, 53 Fed.Reg. 47002 (Nov. 21, 1988); see also 53 Fed.Reg. 47056-61, and closely follow the HHS drug-testing procedures for government employees set forth at 53 Fed.Reg. 11,970 (April 11, 1988). Upon arriving at the "collection site," the employee must present photographic identification or be identified by a representative of the employer, and must remove any outer garments, such as a coat or jacket. The employee may choose to provide the required urine specimen in a stall or otherwise partitioned area. The toilet water is to be tinted with a blue dye to prevent use of that water to adulterate the specimen, and a monitor of the same gender as the employee must remain in the area, but outside the stall. After receiving the specimen, the monitor must inspect it to ensure that it is of proper volume, temperature, and color. The monitor must then arrange, following specified chain-of-custody procedures, to ship the specimen to an HHS-certified drug testing laboratory.
The laboratory to which the specimen is sent must perform an immunoassay test. If the specimen tests positive, the test must be confirmed using gas chromatography/mass spectrometry techniques. If the initial positive test is confirmed, the employer's Medical Review Officer (who must be a qualified physician) determines whether there is an "alternative medical explanation" and in that connection must provide the employee with an opportunity to discuss the result and submit any medical records regarding legally prescribed medication. The employee may also demand a retest of the original specimen at the original laboratory or another HHS-certified laboratory. 4 In addition, there is an absolute prohibition against the release of drug test results to third parties without the specific, written consent of the employee.
Employees who test positive for prohibited drugs and are unable to offer a satisfactory alternative explanation must be removed from their positions, and may not return to duty except upon the recommendation of a Medical Review Officer or the Federal Air Surgeon.
Petitioners in this case include employees engaged in various occupations within the commercial aviation industry who are subject to the FAA drug-testing rules, the principal labor organizations in the industry, and an organization of aviation employees and employers. Following the FAA's issuance of the rules, timely petitions for review were filed in this Circuit, the Fifth Circuit, and the D.C. Circuit. Those petitions were then consolidated in this proceeding. We have jurisdiction under 49 U.S.C.App. Sec. 1486.
Petitioners' primary contention is that the drug tests required by the FAA are unreasonable searches in violation of the Fourth Amendment. Our disposition of this issue is guided by the Supreme Court's decisions in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). In Von Raab, the Court upheld a United States Customs Service requirement that employees seeking transfers or promotions to certain positions undergo urinalysis. In Skinner, the Court upheld a Federal Railroad Administration program requiring railroads to administer blood and urine tests to train workers involved in major railroad accidents, and permitting railroads to administer breath and urine tests to employees who...
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