AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES COUNCIL 79, RICHARD FLAMM, Plaintiffs - Appellees, versus RICK SCOTT, in his official capacity as Governor of the State of Florida, Defendant - Appellant.
No. 12-12908
United States Court of Appeals, Eleventh Circuit
May 29, 2013
D.C. Docket No. 1:11-cv-21976-UU
Before MARCUS, BLACK and SILER,* Circuit Judges.
[PUBLISH]
(May 29, 2013)
MARCUS, Circuit Judge:
Confusion regarding the scope of the relief that the plaintiffs requested has plagued this lawsuit from its inception in 2011. In that year, Appellant Rick Scott, the Governor of Florida, issued Executive Order 11-58 (“EO”), which mandated two types of suspicionless drug testing: random testing of all employees at state agencies within his control, and pre-employment testing of all applicants to those agencies. Appellee American Federation of State, County, and Municipal Employees Council 79 (“Union”), which represents many employees covered by the EO, sued in the United States District Court for the Southern District of Florida to invalidate the EO, and to enjoin its implementation, as unconstitutional under the Fourth Amendment. Initially, as the Union itself has conceded, its challenge
The district court granted summary judgment to the Union and denied summary judgment to the State. In its order, the district court concluded that the State’s justifications for testing all of its employees, including those in non-safety-sensitive positions, were insufficient. The court then turned to the question of what relief it would grant. The district court granted relief that it described as “as-applied” but that remained essentially facial in nature: the court invalidated the EO, and enjoined its implementation, as to all 85,000 current state employees. This relief covered every single employee and disregarded any distinction between safety-sensitive and non-safety-sensitive positions.
Yet, as the Supreme Court has established, a party is entitled to facial invalidation of a law on Fourth Amendment grounds only if the party can demonstrate that there are no constitutional applications of that law. In this case, the district court declared the EO unconstitutional as to all current state employees.
The State, however, asks us to do more than vacate and remand. It argues that the Governor is entitled to summary judgment, and that we should reverse the district court, because the EO is constitutional as applied to all 85,000 state employees. At bottom, the State wants us to approve of a drug testing policy of far greater scope than any ever sanctioned by the Supreme Court or by any of the courts of appeals. In order to meet its burden of justifying the EO, the State offers several reasons, stated only at the highest order of abstraction, for why it can drug test all of its employees without any individualized suspicion. However, the
I.
A.
On March 22, 2011, Governor Scott issued Executive Order 11-58. The EO directed all state agencies “within the purview of the Governor . . . to provide for pre-employment drug testing for all prospective new hires and for random drug testing of all employees within each agency.” The EO further instructed the agencies to “provide for the potential for any employee . . . to be tested at least quarterly.” Approximately 85,000 people, or 77 percent of the State’s workforce, are covered by the EO.
Although the Executive Order does not specify a method of drug testing, the State indicated in the district court that urinalysis would be the method used to
The EO represented a significant expansion of the State’s employee drug testing regime. Prior to the EO’s issuance, Florida’s Drug-Free Workplace Act (“DFWA”),
Other statutes or administrative regulations provided for suspicionless testing of current employees in specific departments. The Department of
In 2012, the Florida Legislature amended the Drug-Free Workplace Act and substantially broadened it. The current version of
The text of the Executive Order offers several justifications for this sweeping policy, including, among others, that: (1) “the State, as an employer, has an obligation to maintain discipline, health, and safety in the workplace”; (2) “illegal drug use has an adverse [e]ffect on job performance,” including the risk of absenteeism, greater burden on state health benefit programs, and a decline in productivity; and (3) “drug use poses a risk to the public, which “interacts daily with state employees.”
B.
On May 31, 2011, before any agency implemented the EO, the Union filed suit, alleging that the EO violated the Fourth Amendment. Using the terminology of a facial challenge, the Union described its suit as “an action . . . for a preliminary injunction and a permanent injunction against the Governor of the State of Florida, ordering him to cease, or not implement, all employee drug-testing mandated by his Executive Order Number 11-58,” and also for “declaratory judgment declaring that the drug-testing regime mandated by Executive Order 11-58 violates the Fourth Amendment of the Constitution.” Compl. ¶ 1. The gravamen of the complaint was that “[t]he Supreme Court of the United States has held that suspicionless drug-testing by the government is an unreasonable search violative of
Regarding its standing, the Union averred that it represented more than 50,000 employees at the agencies covered by the EO. Its members were subject both to the random testing requirement for current employees as well as the pre-employment testing requirement for new hires because “employees represented by [the Union] who seek a promotion to another job are considered new employees.” Compl. ¶ 15. Thus, the Union “sue[d] on its own behalf” as well as “in its organizational capacity on behalf of those state employees it represent[ed].” Compl. ¶ 16.
In the final section of the complaint, the Union reiterated its request for facial relief. The Union first asked the district court to declare “that Defendant’s Executive Order 11-58 is quashed because it violates the right of the people to be free from unreasonable searches, under the Fourth Amendment.” The Union further urged the district court to issue a permanent injunction ordering “the Defendant [to] immediately direct all agencies and persons affected by
C.
The parties filed cross motions for summary judgment. The Union argued that the Executive Order was unconstitutional because it failed to separate safety-sensitive from non-safety-sensitive positions and thus moved the district court to issue both a declaratory judgment declaring that the EO violated the Fourth Amendment and a permanent injunction barring the EO’s implementation.
Notably, at this stage, the Union began recasting its complaint in the terminology of an as-applied challenge. The Union stressed that it “challenge[d] only the new drug-testing regime that tests the rest of the State’s workers [not covered by the then-current version of
In support of its motion, the State argued: (1) that the Union lacked standing; (2) that the Union could not succeed on what the State maintained was a facial challenge to the Executive Order; (3) that, on the merits, the EO was constitutional because individuals consented to the test; or, alternatively, (4) that the EO was constitutional because the State had a special need justifying suspicionless drug testing. In its special-needs analysis, the State offered its interest in a safe, productive, and efficient workplace as the primary need justifying the EO. The State expressly declined to specify which groups of employees presented heightened safety concerns, instead arguing generally that “even if safety concerns were the only permissible justification, the notion that only intoxicated employees with certain duties present a danger to others . . . is untenable.” Thus, according to the State, the proffered safety need applied across the board and to all employees:
An employee need not drive a train, carry a gun, or interdict drugs to present a safety risk. Even a desk-bound clerk . . . may become violent with other employees or the public, may present a danger when driving a car in the workplace parking lot, or may exercise impaired judgment when encountering any of the myriad hazards that exist in the workplace environment . . . .
The State also asserted that the privacy interests of state employees were diminished for several reasons. First, drug testing among private employers had become common. Second, Florida had a tradition of open government. Finally, the
D.
On April 25, 2012, the district court granted summary judgment to the Union and, in turn, denied the State’s motion. After finding that the Union had standing to challenge the Executive Order,1 the district court conducted the special-needs balancing test established in Skinner and weighed the State’s asserted public interests against the employees’ privacy interests. The district court first determined that the public interests asserted were “notably broad and general compared to the interests that the Supreme Court . . . held justify suspicionless drug testing.” The court then rejected the State’s assertion that state employees possessed a diminished privacy interest. The district court therefore concluded that the EO was unconstitutional.
The State timely appealed.
II.
A.
The parties first dispute whether the relief the district court granted in this case was facial or as-applied in nature. Although the boundary between these two forms of relief is not always clearly or easily demarcated, the district court’s decision to strike down the EO and enjoin its implementation as to all 85,000 current employees has the essential characteristics of facial relief.
From the outset, the Union mounted a facial challenge to the Executive Order. That much is apparent from the face of the complaint. We look to the scope of the relief requested to determine whether a challenge is facial or as-applied in nature. See Doe v. Reed, 130 S. Ct. 2811, 2817 (2010). The heart of the Union’s requested remedy was two-fold: first, that the district court broadly declare “that
However, the Union began requesting both facial and as-applied relief at the summary-judgment stage. In requesting as-applied relief, the Union explained that it “challenge[d] only the new drug-testing regime that tests . . . those not suspected of drug abuse and those who don’t hold safety-sensitive jobs,” and that it was “not challenging drug-testing of those in safety-sensitive positions.” The Union identified the non-safety-sensitive category of employees to be roughly 60 percent of all employees covered by the EO.
Insofar as the Union mounted a facial challenge to the Executive Order -- and it surely did that -- it had to meet an especially demanding standard. “A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself.” United States v. Frandsen, 212 F.3d 1231, 1235 (11th Cir. 2000). “[W]hen a plaintiff mounts a facial challenge to a statute or regulation,
Salerno also applies when a court grants relief that is quasi-facial in nature -- that is, relief that reaches beyond the plaintiffs in a case. In Doe v. Reed, for instance, the Supreme Court considered a challenge that a state law violated the First Amendment when applied to referendum petitions. 130 S. Ct. at 2817. The Court noted that characterizing the challenge as either facial or as-applied was problematic because the challenge “obviously ha[d] characteristics of both: The claim [wa]s ‘as applied’ in the sense that it d[id] not seek to strike the PRA in all its applications, but only to the extent it covers referendum petitions. The claim [wa]s ‘facial’ in that it [wa]s not limited to plaintiffs’ particular case . . . .” Id. When a plaintiff brings this sort of quasi-facial challenge, “[t]he label is not what
Prior to considering the propriety of the Union’s facial challenge, the district court correctly attempted to construe the Union’s complaint as making a more limited, as-applied challenge to the EO. The State objects that the district court could not have construed the Union’s suit as an as-applied challenge at all because the Union’s complaint requested only facial relief and the Union insisted during discovery that it was mounting a facial challenge. This objection is unconvincing. Ordinarily, it is true that, “[a]t the summary judgment stage, the proper procedure for plaintiffs to assert a new claim is to amend the complaint in accordance with
As a general matter, courts strongly disfavor facial challenges, and for good reason:
Claims of facial invalidity often rest on speculation. As a consequence, they raise the risk of premature interpretation of statutes on the basis of factually barebones records. Facial challenges also run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. Finally, facial challenges threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008) (citations and internal quotation marks omitted). Thus, courts construe a plaintiff’s challenge, if possible, to be as-applied. See Jacobs, 50 F.3d at 905 n.17; see also Stupak-Thrall v. United States, 89 F.3d 1269, 1288 (6th Cir. 1996) (Boggs, J., dissenting) (“[U]nless a plaintiff expressly disavows an ‘as-applied’ challenge, the complaint that a regulation is invalid should be construed, if possible, as an as-applied challenge.”).
This led the district court to grant both a declaratory judgment and a corresponding injunction that were too broad. In determining the scope of its relief, the court began by dividing the individuals subject to the EO into three groups: (1) employees at the covered agencies prior to the issuance of district court’s order; (2)
As we’ve said, the line between facial and as-applied relief is a fluid one, and many constitutional challenges may occupy an intermediate position on the spectrum between purely as-applied relief and complete facial invalidation. The Supreme Court itself has weighed challenges with both facial and as-applied characteristics, see, e.g., Doe, 130 S. Ct. at 2817, and perhaps the best understanding of constitutional challenges is that “[t]here is no single distinctive category of facial, as opposed to as-applied, litigation.” Richard H. Fallon, Jr., As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1321 (2000). As both parties acknowledged at oral argument, the district court’s order has characteristics of both facial and as-applied relief. On the one hand, it
Nonetheless, we conclude that the district court granted what effectively amounted to facial relief -- or, at the very least, relief that had enough characteristics of facial relief to demand satisfaction of Salerno‘s rigorous standard. The essential point is that the district court invalidated the EO across the board covering all 85,000 state employees, the overwhelming majority of those subject to the EO. The scope of the district court‘s judgment is extremely broad and, notably, its relief was not limited in any way by the concession the Union itself made: “[O]n March 22, 2011 (the date of promulgation) there was at least one employee . . . who held a high-risk, safety-sensitive job, and was subject to EO 11-58. And we admit that the
Nor does the district court‘s cutoff of the scope of its judgment and the accompanying injunction transform that relief into as-applied relief. The district court invalidated the Executive Order and enjoined its implementation as to the
B.
Having established that the district court granted facial relief, the essential question becomes whether that relief could meet Salerno‘s demanding standard. To uphold the scope of the relief, we would have to be convinced that the State could
The
The default rule in this context, therefore, is that “[t]o be reasonable under the
Therefore, the test we apply is a job-category-by-category balancing of “the individual‘s privacy expectations against the Government‘s interests,” Von Raab, 489 U.S. at 665, with other relevant factors being “the character of the intrusion” --
The Supreme Court has had five occasions to evaluate suspicionless drug testing policies in the last twenty-five years. We therefore know the kinds of interests that are important enough to subject certain limited categories of individuals to suspicionless drug tests, and, moreover, we know that some of the 85,000 current state employees fall within those categories. In Skinner, the Supreme Court established that the government has a compelling need to test railroad employees. In that case, the Federal Railroad Administration (“FRA“) required suspicionless drug testing of workers involved in railroad accidents.
As for the privacy interests implicated by the search, the Supreme Court began by noting that “certain forms of public employment may diminish privacy expectations even with respect to such personal searches.” Id. at 671. The Court
As for employees who handled classified information, however, the Court remanded. While noting that the protection of “truly sensitive information” is “compelling,” id. at 677, the Court questioned the Customs Service‘s designation of several classes of employees -- for instance, baggage clerks and messengers -- as belonging to this category. See id. at 678. Since the Court could not determine “whether the Service ha[d] defined this category of employees more broadly than is necessary,” it remanded for the lower courts to determine more precisely which employees truly dealt with sensitive information. See id.
The Supreme Court next approved of suspicionless drug testing in a far different context than government employment: schools. The Court upheld the constitutionality of two schools’ policies of randomly drug testing student athletes, Vernonia, 515 U.S. at 648, and students participating in competitive extracurricular
In contrast to the preceding cases, the Supreme Court rejected a Georgia statute that required all candidates for certain state offices to submit to a drug test at a time of their choosing prior to the election. See Chandler, 520 U.S. at 309-10. Georgia attempted to justify its policy based on “the incompatibility of unlawful drug use with holding high state office,” contending that illegal drug use “draws into question an official‘s judgment and integrity” and “jeopardizes the discharge of public functions.” Id. at 318. The Court dismissed these broad and general
Although this Court recently has addressed the constitutionality of suspicionless drug testing in a different context, see Lebron v. Sec‘y, Fla. Dep‘t of Children & Families, 710 F.3d 1202, 1218 (11th Cir. 2013) (affirming a preliminary injunction barring suspicionless testing of welfare recipients), we have not considered the propriety of testing current or potential government employees since Chandler v. Miller, 73 F.3d 1543 (11th Cir. 1996), rev‘d, 520 U.S. 305. Our sister circuits, however, have confronted a wide variety of drug testing policies and have identified several other safety-sensitive job categories. In cases similar to Skinner, the courts of appeals have upheld suspicionless drug testing of categories of employees whose work involves heavy machinery or the operation of large vehicles, such as planes, trains, buses, or boats. Thus, although Skinner itself
The crucial point is that, to affirm the district court‘s declaration and injunction in this case, we would have to find that none of the 85,000 current employees covered by the district court‘s relief belong to the special-needs categories identified by the Supreme Court. However, the Union‘s own submissions belie this. Indeed, the Union itself observed that, “[o]f the approximately 85,000 employees in 2010, 33,052 of them . . . served in arguably safety-sensitive positions.” More precisely, during discovery, the Union asked the State to identify:
- “How many employees affected by EO 11-58 regularly carry firearms on the job?” (Interrogatory 16)
- “How many employees affected by EO 11-58 are sworn law enforcement officers?” (Interrogatory 17)
“How many employees affected by . . . EO 11-58 regularly interact on the job with detainees in the correctional system?” (Interrogatory 18) - “How many employees affected by EO 11-58 regularly interact on the job with primary or secondary school students?” (Interrogatory 19)
- “How many employees affected by EO 11-58 regularly work as mass transit operators?” (Interrogatory 20)
- “How many employees affected by EO 11-58 regularly work as transportation safety inspectors?” (Interrogatory 21)
The State provided fairly detailed figures in its responses, including, for example, the following categories of employees who carry firearms: 157 employees in the Department of Business & Professional Regulation, 146 inspectors in the Department of Corrections (along with another 1,088 employees who were authorized but not required to carry firearms), 136 employees in the Department of Environmental Protection, and 23 in the Department of Military Affairs. Based on the holding in Von Raab, it is apparent that, at least as to these employees, the EO is very likely constitutionally applicable. The State further identified several distinct categories of employees who operate heavy machinery or large vehicles, with almost a thousand working for the Department of Transportation alone. Skinner makes it likely that the State also may subject these, or at least some of these, employees to suspicionless drug testing. Yet by extending the declaratory judgment and injunction to all current employees, the district court effectively
Under Salerno, the EO could not possibly be unconstitutional as to all current employees, and the district court‘s order therefore cannot “satisfy [the Supreme Court‘s] standards for a facial challenge to the extent of [the order‘s] reach.” Doe, 130 S. Ct. at 2817. Since it is well-settled that a district court abuses its discretion when it grants relief that is improperly or even unnecessarily broad, see Alley v. U.S. Dep‘t of Health & Human Servs., 590 F.3d 1195, 1205 (11th Cir. 2009), we vacate and remand the judgment and the injunction for the district court to more precisely tailor its relief to the extent the Executive Order may be unconstitutional.
Nonetheless, the Union maintains that the scope of the injunction was proper anyhow and fell well within the district court‘s broad discretion. In fact, the Union continues to assert that the court “was also within its discretion to award facial relief” because the Union had demonstrated that no set of circumstances exists under which the EO would be valid. This places the Union‘s arguments in palpable tension. On the one hand, it concedes that suspicionless drug testing of safety-sensitive employees would be constitutional. On the other hand, it maintains that the EO is facially unconstitutional.
The Union offers another argument: that the district court was required to facially invalidate the EO because otherwise the court would have been “put in the untenable position of having to rewrite” it. The Union claims that the Supreme Court‘s case law cautions against partial invalidation and cites Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320 (2006). Ayotte, however, hardly supports this proposition. As the Supreme Court stated in that case, “the ‘normal rule’ is that ‘partial, rather than facial, invalidation is the required course,’ such that a ‘statute may . . . be declared invalid to the extent that it reaches too far, but otherwise left intact.‘” Id. at 329 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504 (1985)). In Sabri v. United States, the Court identified the “few settings” in which it had “recognized the validity of facial attacks alleging overbreadth (though not necessarily using that term)“: free speech, the right to travel, abortion rights (the category to which Ayotte itself belongs), and legislation under § 5 of the
C.
As a fallback position, the Union suggests that we could refashion the judgment and injunction simply by cutting them down to cover only those categories of employees as to whom the Executive Order‘s application is unconstitutional. While an appellate court undoubtedly has the power to modify injunctions, see United States v. Nat‘l Treasury Emps. Union, 513 U.S. 454, 480 (1995), or to affirm a judgment as to some plaintiffs but not others, see Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1320 (11th Cir. 2007), we decline to do so because the sort of fact-intensive line-drawing required is a task that properly belongs to the district court. Unlike the typical case where we may affirm a judgment as to some plaintiffs but not as to others, we are dealing here not with a manageable number of individual plaintiffs but with a current workforce of some 85,000 state employees. Nor is the district court‘s order as amenable to modification as the injunction in Nat‘l Treasury Emps. Union, which the Supreme Court altered solely to exclude non-plaintiffs. In sharp contrast, in order to modify the judgment and injunction before us, we would be required to “differentiate[]
Although the Union did divide the covered employees at least into an “arguably” safety-sensitive group (encompassing roughly 40 percent of all covered employees) and a non-safety-sensitive group, we understand that the Union‘s position is that some of the employees in the arguably safety-sensitive group actually are not subject to suspicionless testing, while the State‘s position is that some employees in the non-safety-sensitive group are subject to suspicionless testing. Thus, for instance, the State included all employees at the Department of Corrections within its answer to the Union‘s interrogatories. The Union will
Thus, we vacate and remand both the declaratory judgment and the corresponding injunction in order for the district court to conduct further
III.
The State does not ask us merely to vacate and remand; boldly, it urges us to reverse the denial of its summary judgment motion and to direct the district court to grant judgment in its favor. The State argues that there is no need for the district court to conduct the very job-category-by-category balancing that the Supreme Court‘s case law commands. Instead, the State offers several reasons that, it claims, can justify suspicionless drug testing of all 85,000 government employees regardless of the nature of their specific job functions. Based on these generic reasons, the State asks us to approve a testing policy of unprecedented scope. We are unpersuaded.
The State‘s arguments, which are stated so abstractly, cannot satisfy the special-needs balancing test laid out in Skinner and its progeny. Those cases conducted the special-needs balancing test not at a high order of generality but in a fact-intensive manner that paid due consideration to the characteristics of a particular job category (e.g., the degree of risk that mistakes on the job pose to public safety), the important privacy interests at stake, and other context-specific concerns (e.g., evidence of a preexisting drug problem). The State‘s arguments have not convinced us that Skinner and its progeny are inapplicable, nor can they
A.
The State‘s first justification is that employees have consented to testing by submitting to the testing requirement rather than quitting their jobs, and that this consent renders the Executive Order‘s search reasonable and hence constitutional. In effect, the State is offering its employees this Hobson‘s choice: either they relinquish their
To begin with, we do not agree that employees’ submission to drug testing, on pain of termination, constitutes consent under governing Supreme Court case law. See Lebron, 710 F.3d at 1214-15. Although a “search conducted pursuant to a valid consent is constitutionally permissible,” Schneckloth v. Bustamonte, 412
Moreover, consent has already been adequately incorporated into the special-needs balancing test, which obliges us to evaluate whether an employee‘s choice of profession necessarily diminishes her expectation of privacy. In Skinner, the Court weighed the railroad employees’ “participation in an industry that is regulated pervasively to ensure safety,” 489 U.S. at 627, as a factor militating in favor of drug testing. In Von Raab, the Court explained that employees’ choice of “certain forms of public employment may diminish privacy expectations even with respect to . . . personal searches.” 489 U.S. at 671. For instance, “[e]mployees of
This Court‘s recent decision in Lebron rejected a similar argument that welfare recipients had consented to suspicionless drug testing when the State required testing as a precondition to the receipt of their benefits. As the panel in Lebron put it, a welfare recipient‘s “mandatory ‘consent‘” was of no “constitutional significance” because it was a “‘submission to authority rather than . . . an understanding and intentional waiver of a constitutional right.‘” 710 F.3d at 1214-15 (quoting Johnson, 333 U.S. at 13). The panel in Lebron also canvassed the suspicionless drug testing cases and concluded that, to the extent consent was relevant, it had already been incorporated into the balancing calculus. While the
Indeed, at least one court of appeals has rejected a similar argument to the one that the State has made here. In McDonell v. Hunter, a case decided even before Skinner and its progeny lent further support to our position, the Eighth Circuit squarely rejected the idea that “employees who signed consent forms have no legitimate expectation of privacy.” See 809 F.2d 1302, 1310 (8th Cir. 1987). “If a search is unreasonable, a government employer cannot require that its employees consent to that search as a condition of employment.” Id. (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); see also United Teachers of New Orleans v. Orleans Parish Sch. Bd., 142 F.3d 853, 856-57 (5th Cir. 1998). The courts of appeals have also applied the special-needs balancing test, rather than treating consent as the sole determinant of a policy‘s constitutionality, in cases where the
In short, the State‘s consent argument cannot, standing alone, render the EO constitutional.
B.
Next, the State argues, again at a high order of abstraction, that the Executive Order is constitutional under Skinner‘s special-needs balancing test because the need for a safe and efficient workplace necessarily outweighs state employees’ expectations of privacy. This argument, however, does not entitle the State to summary judgment. The State‘s abstract reasons do not fit within the narrow scope that the Supreme Court has given to the special-needs exception and, therefore, cannot justify testing every category of employee covered by the EO. Indeed, if those reasons could suffice, then there would never be any need to balance anything or consider any job-category-specific rationales.
We repeat that individualized suspicion is the normal requirement in this context, and the special-needs cases are only “particularized exceptions to the main
The only employment-related rationales that the Supreme Court has endorsed as being sufficient to justify suspicionless drug testing are a “substantial and real” risk to public safety or direct involvement in drug interdiction functions. Chandler, 520 U.S. at 323; see also Von Raab, 489 U.S. at 670. Indeed, if safety is the justification, then public safety must be “genuinely in jeopardy,” Chandler, 520 U.S. at 323; see also Lanier v. City of Woodburn, 518 F.3d 1147, 1151-52 (9th Cir. 2008). Notably, in Chandler, the Court summed up the principle undergirding this line of precedent:
[W]here the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as “reasonable” -
- for example, searches now routine at airports and at entrances to courts and other official buildings. But where . . . public safety is not genuinely in jeopardy, the Fourth Amendment precludes the suspicionless search, no matter how conveniently arranged.
520 U.S. at 323 (citation omitted).
The State‘s safety argument, at least in its current, global form, is insufficient. The State does not advance specific concerns relating to particular job categories and instead asserts only a broad concern for safety that applies to all employees. But we have little doubt that a clerk, for example, cannot be subject to suspicionless drug testing under the theory that she presents some vague and indefinite safety risk. In comparison, the safety risks that justified suspicionless drug testing regimes in Skinner and its progeny were far more pressing. In Skinner, railroad accidents had led to 25 deaths, 61 non-fatal injuries, and extensive property loss. See 489 U.S. at 607. In Von Raab, the concern was with law enforcement officers who carried firearms. See 489 U.S. at 671. Here, the State offers the hypothetical examples of an office employee “present[ing] a danger when driving a car in the workplace parking lot” or falling prey to “the myriad hazards that exist in the workplace environment (from stacks of heavy boxes, to high stair cases, to files on high shelves, to wet floors, to elevators and escalators).” We reject the idea that a stack of heavy boxes or a wet floor falls within the same ballpark of risk as the operation of a ten-thousand-ton freight train or the danger posed by a person carrying a firearm.
Indeed, if the State‘s rationale sufficed to justify suspicionless drug testing, then the exception would swallow the rule and render meaningless Von Raab‘s distinction between those employees for whom physical fitness, mental sharpness, and dexterity are paramount and “government employees in general.” 489 U.S. at 672. Since the State‘s generic justifications could apply to all government employees in any context, there would be nothing left of the individualized
Nor does the State shore up its case for across-the-board, suspicionless drug testing with evidence of a preexisting drug problem. Although the State does not need to present evidence of a drug problem in the group it seeks to test, see Von Raab, 489 U.S. at 674-75, a showing of an existing problem “would shore up an assertion of special need,” Chandler, 520 U.S. at 319. The problem with the State‘s evidence is that some of it is too broad to be of any use, and the rest is too specific to justify the breadth of the testing regime the EO mandates. The bulk of the evidence canvasses the prevalence and harms of drug use in the general population. But Supreme Court case law contemplates a more targeted showing of drug abuse in the group to be tested, not people as a whole. In Skinner, for instance, the Federal Railroad Administration identified a score of drug or alcohol-related train accidents, and industry participants admitted that there was a serious drug problem among railroad workers. 489 U.S. at 607-08. The State‘s evidence is so general that, if accepted as evidence of a drug problem among state employees, it would have to be accepted in every other government employment context.
On the other hand, the relevant data the State presents is too narrow to justify the EO. First of all, the evidence actually suggests that drug use is a relatively small problem in the three departments already subject to random testing
There is still another problem with the State‘s submissions. The data, even assuming it did indicate a drug problem among employees at DOC, DOT, and DJJ, does not demonstrate the prevalence of drug abuse in other state agencies. Thus, even if those results could bolster a case for testing employees at those three agencies -- testing which in any event is independently authorized by state statutes not at issue in this case -- it would not provide strong support for extending testing to all state employees. In short, the State has fallen far short of showing a preexisting drug problem that pervades its entire workforce.
On the other side of the balancing test, the State also claims that state employees’ expectations of privacy are diminished for two reasons other than
The problem with the first one is that it confuses what the Supreme Court means by a diminished expectation of privacy -- or, more precisely, what baseline courts should use to determine whether an employee‘s expectation of privacy is diminished. The proper baseline is the ordinary government employee‘s expectation of privacy. In Von Raab, for example, the Supreme Court concluded that Customs Service employees involved in drug interdiction had a diminished expectation of privacy precisely because, “[u]nlike most private citizens or government employees in general, employees involved in drug interdiction reasonably should expect effective inquiry into their fitness and probity.” 489 U.S. at 672 (emphasis added). In other words, the appropriate inquiry is whether the employee being tested has a diminished expectation of privacy relative to the ordinary government employee because her position depends on physical fitness and judgment. The State‘s broad-based argument that all of its employees have a reduced expectation of privacy contradicts binding case law.
None of the State‘s arguments demonstrate that all state employees, including those who have no reasonable relation to safety-sensitive tasks, have a reduced expectation of privacy. Just as the State must demonstrate job-category
In sum, we cannot find that the State‘s proffered rationales warrant summary judgment in the State‘s favor concerning all job categories and all employees covered by the EO. In this case, the character of the intrusion is relatively noninvasive and, “if the ‘special needs’ showing had been made, the State could not be faulted for excessive intrusion.” Chandler, 520 U.S. at 318. However, the State has failed to make that showing. As the district court concluded, the State‘s case most closely resembles Georgia‘s failed justification of the policy held unconstitutional in Chandler. Unlike in Skinner or Von Raab, where the specific job categories subject to testing had a diminished expectation of privacy, the State has failed to demonstrate that all 85,000 state employees somehow have diminished privacy rights. Moreover, it has failed to provide a compelling or
IV.
One final issue has been raised by the parties: who bears the burden in a suspicionless drug testing case. In light of limited authority on this issue, and in order to provide the district court with guidance on remand, we clarify the precise burdens each party bears.
There are several different burdens that arise in this case. For starters, on a motion for summary judgment, “[t]he moving party bears the burden of showing that there are no . . . genuine factual issues and that [it] is entitled to summary judgment as a matter of law.” Gossett v. Du-Ra-Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978).6 Moreover, “in a
In the drug testing context, a plaintiff may initially meet both the burden of going forward and the initial burden of persuasion by demonstrating that (1) there was a search; and (2) it was conducted without individualized suspicion, which ordinarily is the minimum requirement of the Fourth Amendment. See Chandler, 520 U.S. at 313. That showing creates a presumption that the search was unconstitutional and shifts the burden of production to the testing policy‘s proponent to make the special-needs showing explicated in Skinner and its progeny. If the proponent of testing fails to respond, or fails to produce a sufficient special-needs showing, then the plaintiff would prevail. If the proponent does respond by demonstrating that it had special needs sufficiently important to justify a suspicionless search, then the district court must conduct the special-needs balancing test, bearing in mind that the ultimate burden of persuasion remains squarely on the plaintiff. In this case, the Union met its initial burden because on its face the EO mandates random, suspicionless testing across the board. At this point, the burden of going forward -- that is, the burden of production -- then shifted to the State to articulate its justification for conducting those tests without individualized suspicion.
Indeed, the relevant Supreme Court cases suggest that the government bears the burden of producing the special-needs showing once the plaintiff has made an initial showing of an unconstitutional search. In Von Raab, for example, the Supreme Court concluded that “the Government has demonstrated that its
Moreover, this burden-shifting framework follows directly from
Shifting the burden of production to the government to justify a warrantless search is a familiar feature of
V.
To date, the parties’ litigation strategies in this case seem to have focused on avoiding the kind of job-category-by-category balancing that Skinner and its progeny teach us is the proper modality for evaluating the constitutionality of a suspicionless drug testing policy. The Union originally sought, and ultimately received, facial relief that cannot be sustained in light of the Executive Order‘s constitutional applications. Meanwhile, the State has resisted providing the district court with any specific special-needs showings that apply to individual job categories and instead has insisted that a few broad, abstract reasons can justify the EO across the board. Admittedly, providing job-category-specific reasons and evidence -- which the district court must have in order to conduct the proper analysis -- is a substantial, even onerous, task. Nonetheless, convenience cannot override the commands of the Constitution.
Nor can the parties’ desire for expediency allow a court to conduct the necessary calculus in the abstract and in the absence of any real factual record. Since the State has failed to meet its burden of production under the special-needs balancing test, we can discern no basis to reverse the district court‘s order and direct that judgment be entered in the State‘s favor. The State has fallen far short of
Accordingly, we vacate both the declaratory judgment and the injunction and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.
Notes
In Wyman v. James, 400 U.S. 309, 310 (1971), the Supreme Court addressed whether a welfare beneficiary could refuse a caseworker home visit that was a requirement of receiving her benefits. James argued that the visitation requirement violated her Fourth Amendment rights, but the Supreme Court ultimately held that there was no Fourth Amendment violation because the caseworker visit was not a search. See id. at 317. Since the Wyman Court held the visit not to be a search, while the Supreme Court has repeatedly and squarely held that a drug test is a search, see, e.g., Vernonia, 515 U.S. at 652, Wyman is inapposite.
United States v. Sihler, 562 F.2d 349, 350 (5th Cir. 1977) concerned a warrantless search by prison officials of a guard who had smuggled drugs into the prison. The prison had a prominent sign that stated, “All persons entering upon these confines are subject to routine searches of their person, property or packages.” Id. The Fifth Circuit held that “Sihler voluntarily accepted and continued an employment which subjected him to search on a routine basis,” and, therefore, “the search . . . was made with his consent.” Id. at 351. Notably, Sihler preceded Skinner and its progeny. Nevertheless, Sihler is consistent with those cases because it dealt with a specific, safety-sensitive context -- a federal penitentiary. Much like “[e]mployees of the United States Mint . . . should expect to be subject to certain routine personal searches when they leave the workplace,” Von Raab, 489 U.S. at 671, a prison guard may fairly expect to be
Finally, the State cites a Third Circuit case, Kerns v. Chalfont-New Britain Twp. Joint Sewage Auth., 263 F.3d 61, 64 (3d Cir. 2001), where the plaintiff applied for a job that required a pre-employment drug test. The plant hired him on a probationary basis after he failed one drug test but passed a second. See id. Later, when asked to submit to a third test, Kerns did so, failed again, and was fired. Id. at 64-65. Kerns sued, alleging that the plant violated his Fourth Amendment rights. The district court granted the township summary judgment after finding that Kerns had consented to the test. See id. at 65. The Third Circuit reviewed that factual finding for clear error and affirmed because the record provided some evidence to support the finding that Kerns had consented to the test. Id. at 65-66.
Kerns cannot support the State‘s sweeping argument that all current employees consent to drug testing simply by choosing to remain employed. Kerns turned on a factual finding of consent in an individual case, which the Third Circuit reviewed for clear error. In this case, the State asks us to rule that, as a matter of law, all of its employees consent to drug testing by simply choosing to remain employed in their current position. Nothing we have read sustains this argument.