Owner-Operators Indep. Drivers Ass'n v. Burnley

• Decision Date: 06 January 1989
• Docket Number: No. C-88-4547 MHP.,C-88-4547 MHP.
• Citation: 705 F. Supp. 481
• Parties: OWNER-OPERATORS INDEPENDENT DRIVERS ASSOCIATION OF AMERICA, INC., a corporation, and Michael York, an individual, Plaintiffs, v. James H. BURNLEY, Secretary of Transportation, and United States Department of Transportation, Federal Highway Administration, Defendants.
• Court: U.S. District Court — Northern District of California

705 F. Supp. 481

OWNER-OPERATORS INDEPENDENT DRIVERS ASSOCIATION OF AMERICA, INC., a corporation, and Michael York, an individual, Plaintiffs, v. James H. BURNLEY, Secretary of Transportation, and United States Department of Transportation, Federal Highway Administration, Defendants.

No. C-88-4547 MHP.

United States District Court, N.D. California.

January 6, 1989.

Jeffrey W. King, K. Michael O'Connell, Daniel J. Harrold, Collier, Shannon, Rill & Scott, Washington, D.C., Michael F. Healy, Michael G. Ornstil, William P. Keane, Sedgwick, Detert, Moran & Arnold, San Francisco, Cal., for plaintiffs.

John R. Bolton, Asst. Atty. Gen., Mary E. Goetten, Brian G. Kennedy, Attys., Dept. of Justice, Civ. Div., Washington, D.C., Joseph P. Russoniello, U.S. Atty., George Christopher Stoll, Asst. U.S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM AND ORDER

PATEL, District Judge.

Fed.R.Civ.P. 65(a)

Plaintiffs, an association of independent owner-operators of motor vehicles and an individual owner-operator, Michael York, seek a preliminary injunction pursuant to 28 U.S.C. § 2202 and Federal Rule of Civil Procedure 65(a) which would prevent the Secretary of Transportation and other government officials from implementing regulations requiring drug testing of drivers of commercial vehicles. On December 21, 1988, the court issued a temporary restraining order which stayed the implementation of the random drug testing and the post-accident testing regulations (insofar as post-accident testing would be conducted without reason to believe that the truck driver was at fault or using drugs at the time of the accident). In addition, the court requested the parties to submit additional briefing, particularly with regard to the evidence supporting the adoption of the regulations.

The hearing on the motion for a preliminary injunction was held on December 30, 1988, and at that time, the court indicated its intention to enjoin implementation of that portion of the regulations covering the random drug testing and post-accident testing in substantial accordance with the terms of its temporary restraining order. The parties agreed that the temporary restraining order would remain in effect until the court issued the order granting the preliminary injunction. Having considered the papers submitted and the arguments of the parties, for the following reasons, the court now grants the plaintiffs' motion for a preliminary injunction as to the random drug testing regulations and post-accident testing as discussed below. The court's order issuing a temporary restraining order is incorporated by reference and attached herein as Appendix A.

BACKGROUND

The facts have been detailed in the court's temporary restraining order issued December 21, 1988, and therefore are not repeated here.

LEGAL STANDARD

Ninth Circuit law requires that a party moving for issuance of a preliminary injunction must demonstrate either "1) a combination of probable success on the merits and the possibility of irreparable harm, or 2) that serious questions are raised and the balance of hardships tips sharply in the moving party's favor." Rodeo Collection, Ltd. v. West Seventh, 812 F.2d 1215, 1217 (9th Cir.1987). In the instant case, the court applies the traditional standard for the granting of preliminary relief, namely that the moving party must show probable success on the merits and the possibility of irreparable harm.

DISCUSSION

I. Irreparable Harm

In its papers and initial argument, the government argued that the regulations were not ripe for judicial review. At the hearing on the motion for a preliminary injunction, however, the government acknowledged that the case was ripe for review within the meaning of Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1516, 18 L.Ed.2d 681 (1967) (ripeness turns on "fitness for judicial decision and hardship to parties of withholding court consideration.") As in Abbott Laboratories, the issues presented in the instant case are legal ones and the challenged regulations constitute "final agency action" within the meaning of section 10 of the Administrative Procedure Act, 5 U.S.C. § 704. Id. at 149-150, 87 S.Ct. at 1515-16.

With the elimination of the ripeness issue, the government's arguments concerning the timeliness of the motion for a preliminary injunction bear only upon the issue of irreparable injury. As discussed in the order granting the temporary restraining order, the court finds, notwithstanding the government's arguments, that the random drug testing and post-accident drug testing regulations could have a severe and immediate impact upon the livelihood of millions of drivers. Although carriers are not required to implement the drug testing program until December of 1989 or 1990, depending upon their size, the government admits that nothing in the regulations forbids employers from implementing the programs on the effective date of the regulations, December 21, 1988.

Immediate injury is also possible from post-accident drug testing, despite the government's position that such activity need not actually occur until December 21, 1989. Plaintiffs' Memo, Ex. B to Keane Dec. (letter from Brian Kennedy, Justice Department, to K. Michael O'Connell). The regulations demand that drivers, not carriers, initiate post-accident testing, and there is no indication in the regulations that the status of the driver's employer(s) would determine the date post-accident testing was implemented. See 53 Fed.Reg. 47,154 (1988) (regulations to be codified at 49 C.F. R. §§ 391.113, 391.115, 391.117). The rules specify that within 32 hours after a reportable accident the driver must undergo drug testing. Id. (regulation to be codified at 49 C.F.R. § 391.113). Furthermore, drivers who test positive will be subject to sanctions, so the possibility of immediate harm exists. Id. (regulation to be codified at 49 C.F.R. § 391.117.)

The regulations also have the potential to inflict severe injury. Under the disqualification provisions, drivers stand to lose their right to operate a truck on the interstate highways if they test positive or refuse to take the test. Additionally, even if they do not begin to test drivers immediately, members of the plaintiff association must commence preparations for the expensive and elaborate system of drug testing. The court therefore finds that plaintiffs have demonstrated that the random testing and post-accident testing regulations threaten immediate and irreparable injury.

II. Probability of Success on the Merits

As discussed in the court's temporary restraining order, plaintiffs have not shown they are likely to prevail on the claims that the pre-employment testing, periodic testing and "reasonable suspicion" testing violate their Fourth Amendment rights.¹ On the other hand, the court finds that plaintiffs have demonstrated that they are likely to prevail on the merits with respect to the random drug testing regulations and to post-accident testing insofar as the latter is conducted without reasonable suspicion that the driver was using drugs or was at fault.

The central question is whether the random drug testing and post-accident testing qualify as reasonable administrative searches under Fourth Amendment jurisprudence.² The court must inquire whether the search "was justified at its inception" and "whether the search as actually conducted `was reasonably related in scope to the circumstances which justified the interference in the first place'". Railway Labor Executives' Ass'n v. Burnley, 839 F.2d 575, 587 (9th Cir.), cert. granted, ___ U.S. ___, 108 S.Ct. 2033, 100 L.Ed.2d 618 (1988) (quoting New Jersey v. T.L.O., 469 U.S. 325, 341, 105 S.Ct. 733, 743, 83 L.Ed.2d 720 (1985)).

The court asked the government to provide further information on the justification for the regulations in order to evaluate whether the programs were tailored to fit the circumstances. Yet the government has produced little, if any, substantive evidence to support the intrusive searches contemplated by random drug testing and indiscriminate post-accident testing.³

The government's primary evidence supporting the regulations is the Lund study, conducted for the Insurance Institute for Highway Safety. A. Lund et al., Drug Use by Tractor-Trailer Drivers, 33 J. of Forensic Sci. 648 (1988), attached as Ex. E to Defendants' Supplemental Memo. Published in May 1988, the Lund study "provided the first objective data regarding the use of potentially abusive drugs by tractor-trailer drivers." Id. at 660 (emphasis added). In that survey blood or urine samples or both were obtained from 317 of 359 randomly selected tractor-trailer drivers. Participants were asked to take part in a health survey at a truck weighing station on Interstate 40 in Tennessee.

By the authors' own admission, the Lund survey is plagued by design and implementation problems. First, the study probably underestimates the use of prescription medicines. Second, the Lund study solicited volunteers and encountered a high rate of refusal to undergo testing, so its results may be biased. Third, since the study looked only at drivers at one truck stop, the results may not be representative of drivers nationwide.⁴ As the study concludes, "drug incidence among other truck-driver populations are unknown and may be higher or lower than reported here." Id. Finally, the Lund study's figures on drug use do not establish impairment of the drivers "because of the complex relationship between performance and drug concentrations." Id. at 648.

In addition to the Lund study, the government submitted testimony and comments from various motor carrier executives and employers. Such evidence can be given only minimal weight, because of such problems as anecdotal discussion and the absence of supportive data, lack of control groups, and dubious interpretations of existing data. For example, the government cites the testimony of one Texas businessman who...