Gonzalez v. Metropolitan Transp. Authority

• Decision Date: 14 April 1999
• Docket Number: No. 96-56808,96-56808
• Citation: 174 F.3d 1016
• Parties: 14 IER Cases 1697, 99 Cal. Daily Op. Serv. 2711, 1999 Daily Journal D.A.R. 3522 S. Denise GONZALEZ, an individual; Ruben C. Gonzalez, an individual, Plaintiffs-Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY, a.k.a. Southern California Rapid Transit District; Joseph E. Drew, in his official capacity as present Chief Executive Officer/General Manager and as an individual; Franklin White, in his official capacity as past Chief Executive Officer/General Manager and as an individual; Ray Inge, in his official capacity as present Director of Human Resources and as an individual; Jerry Givens, in his official capacity as past Director of Human Resources and as an individual, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1016

174 F.3d 1016

14 IER Cases 1697, 99 Cal. Daily Op. Serv. 2711,

1999 Daily Journal D.A.R. 3522

S. Denise GONZALEZ, an individual; Ruben C. Gonzalez, an individual, Plaintiffs-Appellants, v. METROPOLITAN TRANSPORTATION AUTHORITY, a.k.a. Southern

California Rapid Transit District; Joseph E. Drew, in his

official capacity as present Chief Executive Officer/General

Manager and as an individual; Franklin White, in his

official capacity as past Chief Executive Officer/General

Manager and as an individual; Ray Inge, in his official

capacity as present Director of Human Resources and as an

individual; Jerry Givens, in his official capacity as past

Director of Human Resources and as an individual,

Defendants-Appellees.

No. 96-56808.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 6, 1998.

Decided April 14, 1999.

James H. Fosbinder, Fosbinder & Fosbinder, Venice, California, for the plaintiffs-appellants.

Sharon G. Sanders, Deputy County Counsel, Office of the County Counsel, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California James M. Ideman, District Judge, Presiding. D.C. No. CV-96-02785-JMI.

Before: BOOCHEVER and KLEINFELD, Circuit Judges, and TANNER, ¹ District Judge.

KLEINFELD, Circuit Judge:

This is a Constitutional challenge to random urine tests for bus dispatchers and instructors.

Facts.

This case was dismissed with prejudice on a Rule 12(b)(6) motion, so we evaluate the complaint de novo to decide whether it states a claim upon which relief could be granted, if the facts alleged were proved. Idaho Sporting Congress, Inc. v. United States Forest Service, 92 F.3d 922 (9th Cir.1996). The constitutionality of agency drug testing regulations is reviewed de novo. International Bhd. of Teamsters v. Department of Transp., 932 F.2d 1292, 1298 (9th Cir.1991).

According to the complaint, Mr. and Mrs. Gonzalez both work for the municipal bus service in Los Angeles. Mrs. Gonzalez is a radio dispatcher, Mr. Gonzalez an instructor. Their employer, the Los Angeles County Metropolitan Transportation Authority, conducts random unannounced testing for drugs and alcohol pursuant to the federal Omnibus Transportation Employee Testing Act of 1991 and regulations thereunder. 49 U.S.C. § 5331; 49 C.F.R. Part 653-54.

Mrs. Gonzalez was subjected to a urine test at a medical facility pursuant to the policy. The test came out negative, but the process was so upsetting to her, according to the complaint, that she needed medical treatment and was unable to return to work afterward. She was a victim of child abuse, which made her unusually sensitive to interference with her bodily privacy. Mr. Gonzalez has not been tested, but is upset both by what happened to his wife and by the prospect of being tested himself.

According to the complaint, the tests are based on the classification of both their jobs as "safety-sensitive," but that classification cannot be justified. Also, the tests are not accurate enough to be justifiable to serve any public purpose, nor are there any screening procedures to protect unusually sensitive people like Mrs. Gonzalez.

The complaint claims that the tests amount to an unconstitutional search, violative of the Fourth Amendment, and also Article I, sections 1 and 13, of the Constitution of the State of California. Suit is brought under 42 U.S.C. § 1983 against the Metropolitan Transportation Authority, its past and present general managers, and its past and present officials in charge of implementing the testing program. The prayer is for a declaratory judgment that the testing program is unconstitutional facially and as applied, damages for lost earnings and emotional distress, and an injunction to prohibit testing Mr. and Mrs. Gonzalez pursuant to the program.

The district court ruled that (1) federal regulations requiring urine testing of employees implicate the Fourth Amendment under Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), because they invade reasonable expectations of privacy, as plaintiffs argued; (2) reasonableness under the Fourth Amendment is evaluated by balancing the intrusiveness of the test against the government interest satisfied by testing, under National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989); (3) but the federal regulations requiring random testing of employees such as plaintiffs satisfy the balancing test. Defendants' motion to dismiss was accordingly granted with prejudice.

Analysis.

I. The regulations.

The Transit Authority argues that the urine tests can properly be required of Mr. and Mrs. Gonzalez under duly authorized federal regulations. The Gonzalezes argue that their jobs do not properly fit under the "safety sensitive personnel" definition under the regulation, or if they do, the definition is broader than the statute permits.

The statute requires the Secretary of Transportation to issue regulations for random testing and to make the decision which categories of employees are to be treated as "safety-sensitive" and tested. Congress required the Secretary to issue regulations "to conduct ... random testing of mass transportation employees responsible for safety-sensitive functions (as decided by the Secretary) for the use of a controlled substance ... and to conduct ... random ... testing of such employees for the use of alcohol...." 49 U.S.C. § 5331(b)(1)(A) (emphasis added). ²

The regulations define "safety-sensitive function" to include anyone who operates a "revenue service vehicle" such as a city bus, "including when not in revenue service." 49 C.F.R. § 653.7; 49 C.F.R. § 654.7. That may cover Mr. Gonzalez, described by the complaint as a "Transit Operations Supervisor-Instructor." We understand from the briefs and oral argument that he supervises trainees who drive buses without passengers on board. The definition also includes "[c]ontrolling dispatch or movement of a revenue service vehicle." Id. That covers Mrs. Gonzalez, a bus dispatcher. As an instructor, Mr. Gonzalez is "controlling ... movement" of a bus when he is monitoring a trainee who is driving an empty bus. ³ Thus the federal regulations required the municipal bus system to test Mr. and Mrs. Gonzalez, and the Department of Transportation was authorized by the statute to issue the regulations. The only serious question is whether the regulations are constitutionally permissible as applied to Mr. and Mrs. Gonzalez.

II. Jurisdiction.

The Transit Authority argues that the court lacked jurisdiction over the Gonzalezes' challenge because they did not join the Federal Transit Administration and the Department of Transportation, and these entities are indispensable parties under Federal Rule of Civil Procedure 19. This contention is incorrect. Whether a party is necessary and indispensable is a pragmatic and equitable judgment, not a jurisdictional one. Simpson v. Alaska State Comm'n for Human Rights, 608 F.2d 1171, 1174-75, 1175 n. 5 (9th Cir.1979); 7 Charles A. Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure §§ 1601, 1603 (1986). If the complaint otherwise states a claim, there is no apparent reason why these parties could not be joined, and it is for the district court initially to decide whether joinder is appropriate and feasible.

III. Qualified immunity.

Appellees argue that all the individual defendants should be dismissed because they are entitled to qualified immunity, and would have had no reason to think that administering the urine tests was unconstitutional. The district court did not reach the issue of what claims for relief if any would be subject to qualified immunity, because it dismissed the case for failure to state a claim. Accordingly, we need not decide whether, for example, the damages claims would fail because of qualified immunity. Of course good faith that would shield individuals from damages judgments would not avoid prospective relief based on unconstitutionality of the regulation as applied, were that to be the correct result.

IV. Constitutionality.

The Gonzalezes argue that the regulations, insofar as their positions are included as "safety-sensitive," reach further than the Fourth Amendment permits. They claim, basically, that what they do affects safety so little, and the tests are of so little utility to protecting public safety, that the interference with their privacy cannot be justified. Thus for municipal bus service to subject them to urine tests is, they argue, an unreasonable search and seizure.

Collection and testing of urine pursuant to government directive is a search under the Fourth Amendment. Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 617, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The reasons are that urine tests can reveal private medical facts, and that "the process of collecting the sample to be tested, which may in some cases involve the visual or aural monitoring of the act of urination, itself implicates privacy interests." Id.; see also National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989). For a warrantless search of this sort to be reasonable, usually some quantum of individualized suspicion has been required, though that is not necessary to reasonableness. Skinner, 489 U.S. at 624, 109 S.Ct. 1402. In the absence of individualized suspicion, the reasonableness of such a search depends on balancing the "special needs" of the government against the extent of the intrusiveness of the testing procedure. Chandler v. Miller, 520 U.S. 305, 318, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997).

The urine testing cases decided by the Supreme Court over the last decade have gone both ways depending on their quite particularized facts. Skinner, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), the first of this line of authority, dealt with...