LUIS W. LEBRON, Individually and as Class Representative, Plaintiff - Appellee, versus SECRETARY OF THE FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Defendant - Appellant.
No. 14-10322
United States Court of Appeals for the Eleventh Circuit
December 3, 2014
D.C. Docket No. 6:11-cv-01473-MSS-DAB
[PUBLISH]
Appeal from the United States District Court for the Middle District of Florida
(December 3, 2014)
MARCUS, Circuit Judge:
A Florida statute mandates suspicionless drug testing of all applicants
*seeking Temporary Assistance for Needy Families (“TANF”) benefits. See
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489 U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.
I.
A.
Congress created TANF in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996,
Congress specified in the 1996 Act that states were not prohibited “from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.”
Under
The
When he brought suit, Lebron had sole custody of his five-year-old son. A veteran of the United States Navy and a college student, Lebron was a thirty-five-year-old single-parent who lived with and cared for his disabled mother in Orlando, Florida. On July 16, 2011, Lebron applied to DCF for TANF benefits for himself and his son. Lebron initially signed a form agreeing to drug testing, but he
later revoked his consent and refused to take the test. If Lebron had passed a drug test and submitted the results, the Department determined, he and his son would have been eligible for TANF benefits. Without the test, however, the Department deemed him ineligible to receive TANF assistance and denied his application on August 25, 2011.
B.
On behalf of himself and a class of similarly situated persons, Lebron commenced this lawsuit in the United States District Court for the Middle District of Florida on September 6, 2011, against the Secretary of DCF in his official capacity. Lebron sought a declaration that requiring suspicionless drug testing for TANF eligibility On October 24, 2011, the district court preliminarily enjoined the State from requiring that Lebron submit to a suspicionless drug test pursuant to outweighed the possible injury to the State, and that an injunction would not disserve the public interest. See id. at 1281 (citing Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1326 (11th Cir. 2001)). Because the State stipulated that it would apply the ruling to all similarly situated persons, the district court initially denied without prejudice Lebron’s motion for class certification. Shortly thereafter, though, out of concern that Lebron’s individual claim might become moot during the litigation, the district court certified a class of Florida TANF applicants.3 In response to the preliminary injunction, DCF suspended the The Secretary appealed the preliminary injunction, and a panel of this Court affirmed. Lebron I, 710 F.3d 1202. We found it undisputed that government-mandated drug testing is a Fourth Amendment “search.” Id. at 1206. The Court explained that, to qualify as a constitutionally reasonable search, consent argument due to the unconstitutional conditions doctrine. Id. at 1218. The State petitioned for rehearing en banc, which the Court denied. Meanwhile, the State had not sought a stay of the matter in the district court pending appeal, and both parties filed motions for summary judgment before we decided Lebron I. After we issued our opinion in the preliminary injunction matter, and after the completion of discovery, the district court entered an order granting final summary judgment in favor of Lebron and denying the State’s motion. Lebron v. Wilkins, 990 F. Supp. 2d 1280 (M.D. Fla. 2012). The State argued in the district court that drug testing was constitutionally permissible because of three “special needs”: “(1) ensuring TANF participants’ job readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health.” Id. at 1291-92. Citing Lebron I, the district court concluded, however, that the State failed to show that TANF recipients fell within the “closely guarded category” for whom the Supreme Court has allowed suspicionless drug testing, and also failed to demonstrate that the statute was necessary to protect children because the TANF testing has no impact on the familial and custodial relationships of applicants. Id. Significantly, the district court also found that the only competent record evidence addressing drug use among the Florida TANF population came from a 1998 study conducted by DCF that actually found a lower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole. Id. at 1293. The court deemed inadmissible or irrelevant other evidence proffered by the State concerning the rate of drug use among Florida’s TANF population. The district court concluded that “there simply is no competent evidence offered on this record of the sort of pervasive drug problem the State envisioned in the promulgation of this statute.” Id. at 1298. Finally, the court rejected the state’s consent argument, finding that consent under the statute was not voluntarily given. Id. Ultimately, because there was no set of circumstances under which We review the district court’s grant of summary judgment in favor of Lebron de novo, viewing all facts in the light most favorable to the State. Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott (AFSCME), 717 F.3d 851, 862 (11th Cir. 2013). We review evidentiary rulings, including the exclusion of evidence at summary judgment, for abuse of discretion. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Thus, we defer to the district court’s ruling unless it is “manifestly erroneous”: “Because the task of evaluating the reliability of expert testimony is uniquely entrusted to the district court . . . we give the district court ‘considerable leeway’ in the execution of its duty.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1191 (11th Cir. 2010) (quoting Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005)). Similarly, “[t]he ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is clear abuse of discretion.” United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir. 1992). “Evidence inadmissible at trial cannot be used to avoid summary judgment.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1313 (11th Cir. 2014) (quoting Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007)). Under the “law of the case” doctrine, the “findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990) (per curiam) (quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)). This doctrine is limited to issues actually decided by the appellate court, and discussion in dicta “is neither the law of the case nor binding precedent.” Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992). Still, law of the case includes “things decided by necessary implication as well as those decided explicitly.” Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (per curiam) (quoting Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1098 (5th Cir. 1983)). Our precedent recognizes three exceptions to the law of the case doctrine: “when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.” Id. (quoting United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982)). We enforce this judge-made doctrine in the interests of efficiency, finality and consistency: “[f]ailure to honor its commands can only result in chaos.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc). In Lebron I, we reviewed the grant of a preliminary injunction on an undeveloped record and asked only whether the district court had abused its discretion in determining that Lebron was likely to succeed on the merits of his claim. See 710 F.3d at 1206. The Court was not asked, and did not decide, the ultimate constitutionality of “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” The special needs doctrine recognizes that, “[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Skinner, 489 U.S. at 624. In determining whether the State possesses a sufficiently substantial special need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Chandler, 520 U.S. at 314. The Supreme Court has permitted suspicionless drug testing only “where the asserted special need addresses a substantial concern for public safety or where the state is fulfilling its well-recognized role as the guardian and tutor of public school children.” Lebron I, 710 F.3d at 1210. In Skinner, federal regulations required blood and urine testing of railroad employees involved in train accidents, and also allowed railroads to conduct breath and urine tests of employees who violated safety rules. The regulations were adopted in response to evidence of drug and alcohol abuse by some rail employees, the enormous safety hazards posed by such abuse, and the documented link between impaired employees and train accidents. The Supreme Court upheld the testing program as justified by “surpassing safety interests” because drug testing could deter rail workers who might “cause great human loss before any signs of impairment become noticeable to supervisors.” Skinner, 489 U.S. at 634, 628. The program also allowed railroads to collect critical information about the causes of major train accidents. Suspicionless testing was necessary, according to the Court, because blanket searches after (unpredictable) accidents prevented employees from avoiding detection by planning drug use around a testing schedule, and because waiting to establish suspicion about individuals after an accident “likely would result in the loss or deterioration of the evidence furnished by the tests.” Id. at 631. For similar reasons, the Supreme Court upheld drug testing of United States Customs Service employees who were directly involved in drug interdiction or were required to carry firearms. See Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989). Noting that the program was intended “to deter drug use among those eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug users to those positions,” the Court concluded that a substantial special need justified the search. Id. at 666. Considering the hazardous and important work done by Customs employees, particularly their exposure to threats, bribes, and blackmail from drug traffickers, the Court held that “the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment.” Id. at 670. Similarly, employees “who may use deadly force plainly discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. (internal quotation marks omitted). “In light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the Service’s policy of deterring drug users from seeking such promotions cannot be deemed unreasonable.” Id. at 674. Outside the context of employees in especially hazardous occupations, the Supreme Court has recognized only one other circumstance giving rise to a substantial special need that justifies suspicionless drug testing: when testing “was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” Vernonia, 515 U.S. at 665. The Vernonia Court upheld a school board policy that required public school students to consent to suspicionless drug testing in order to participate in athletics. The Supreme Court highlighted the peculiar circumstances of public schools, where “[a] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” Id. at 655 (quoting T.L.O., 469 U.S. at 339). As a result, “Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” Id. at 656. The Supreme Court found that the school board had an important interest in deterring drug use among student athletes because they are at an age “when the physical, psychological, and addictive effects of drugs are most severe,” because “the effects of a drug-infested school are visited . . . upon the entire student body and faculty, as the educational process is disrupted,” and because, with school athletics, “the risk of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.” Id. at 661-62. The Court concluded that “a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.” Id. at 663. On the other side of the scale, the Supreme Court found that student athletes had lower expectations of privacy because their activities typically involved dressing and showering in public locker rooms and submitting to mandatory preseason physical exams, as well as complying with other eligibility requirements. Id. at 657. “Somewhat like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.” Id. Measured against the school board’s substantial need, the Court held that the invasion of privacy was not significant, and therefore that the “[p]olicy is reasonable and hence constitutional.” Id. at 665. Notably, however, the Court “caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.” Id. After Vernonia, the Supreme Court also upheld a policy requiring drug tests for all public middle and high school students who participated in competitive extracurricular activities, including athletics but also the Academic Team, Future Farmers of America, band, choir, and cheerleading. See Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 826 (2002). The Supreme Court interpreted Vernonia as “depend[ing] primarily upon the school’s custodial responsibility and authority,” id. at 831, and explained that “[t]he health and safety risks identified in Vernonia apply with equal force” to the population of school children in Earls, particularly because the school district “presented specific evidence of drug use at [its] schools.” Id. at 834. “Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy.” Id. at 836. Still, the Court “refuse[d] to fashion what would in effect be a constitutional quantum of drug use necessary to show a ‘drug problem,’” explaining that it “has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing” when circumstances otherwise create a necessarily immediate danger. Id. at 835-36. By contrast, in Chandler the Supreme Court refused to recognize a special need justifying Georgia’s mandatory drug testing of candidates for designated state offices because the program did “not fit within the closely guarded category of constitutionally permissible suspicionless searches.” 520 U.S. at 309. Georgia claimed that suspicionless testing was justified by “the incompatibility of unlawful drug use with holding high state office,” particularly because “the use of illegal drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” Id. at 318. The Supreme Court found no “indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.” Id. at 319. Unlike in Skinner and Vernonia, the Georgia “statute was not enacted . . . in response to any fear or suspicion of drug use by state officials.” Id. In addition, the scheme was not a credible deterrent of illegal drug use because candidates could schedule their own tests, which allowed them to time their drug use to avoid detection, and candidates for public office already “are subject to relentless scrutiny.” Id. at 320-21. The Supreme Court saw no significance to the message the State sought to send by testing politicians: “The need revealed . . . is symbolic, not ‘special,’ as that term draws meaning from our case law.” Id. at 322; see id. (“[I]f a need of the ‘set a good example’ genre were sufficient to overwhelm a Fourth Amendment objection, then the care this Court took to explain why the needs in Skinner, Von Raab, and Vernonia ranked as ‘special’ wasted many words in entirely unnecessary, perhaps even misleading, elaborations.”). These precedents establish and enforce the principle that “the proffered special need for drug testing must be substantial -- important enough to override the individual‘s acknowledged privacy interest, sufficiently vital to suppress the
Fourth Amendment‘s normal requirement of individualized suspicion.” Id. at 318.
With that in mind, we turn to the application of the doctrine in this case. In the
special needs balancing calculus, “[t]he first factor to be considered is the nature of
the privacy interest upon which the search here at issue intrudes.” Vernonia, 515
U.S. at 654. However, as we explained in Lebron I, we need not weigh competing
individual and governmental interests unless the State satisfies its burden of
establishing a special need for its suspicionless drug-testing program. 710 F.3d at
1214 (citing T.L.O., 469 U.S. at 351 (Blackmun, J., concurring Of course, citizens do not abandon all hope of privacy by applying for government assistance. By virtue of poverty, TANF applicants are not stripped of
their legitimate expectations of privacy -- they are not employees in dangerous
vocations or students subject to the On this record the State has failed to meet its burden on the “core issue” of
whether a special need justifies suspicionless searches of TANF applicants.
Chandler, 520 U.S. at 318. The State argues that the following interests -- the
same ones it invoked in Lebron I -- qualify as special needs sufficient to permit
mandatory drug testing of TANF applicants: “(1) ensuring TANF participants’ job
readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended
purposes and not to undermine public health.” Lebron, 990 F. Supp. 2d at 1291.
Encouraging employability, protecting children, and conserving public funds are
general -- and unquestionably legitimate -- public concerns. But empirical
evidence indicates these needs are not specific to or special for TANF applicants,
nor is drug testing essential to ensuring the success of the TANF program as a
whole. The government‘s stated needs are general concerns, proffered only at a high level of abstraction and without empirical evidence, and thus do not justify an
exception to the Fourth Amendment. The State claims, nevertheless, an interest in
preparing TANF applicants for the workplace. But government generally wants its
citizens to be able to find and keep jobs -- the State does not desire work-readiness
only for the TANF population. Similarly, while it claims an interest in protecting
children from drug use by TANF parents, the State has presented no evidence that
children of TANF parents face a danger or harm from drug use that is different
from the general threat to all children in all families. After all, the State
acknowledges that drug use harms all individuals and families, but the State does
not -- and cannot -- claim an entitlement to drug test all parents of all children. Nor do we see a special need from the State‘s desire that government funds
are spent wisely. An interest in fiscal responsibility inheres in all public programs,
and the interest is real. See Lebron I, 710 F.3d at 1220-21 (Jordan, J., concurring)
(“Every expenditure of state dollars, taxpayers hope, is for the purpose of
achieving a desirable social goal. But that does We do not foreclose (nor could we) the possibility that government could
establish a special need if a voluntary benefits program as a whole would be
rendered ineffective without suspicionless searches. In the area of unconstitutional
conditions, courts have considered the germaneness of an incursion on
constitutional rights to the government‘s legitimate objectives. See, e.g., Dolan v.
City of Tigard, 512 U.S. 374, 386 (1994) (requiring that courts determine whether
an “essential nexus” exists between the “legitimate state interest” and the condition
imposed by the government). A similar germaneness analysis might justify a
special need for suspicionless drug testing when essential to the implementation of
a voluntary government benefits program. Thus, for example, if the government
sponsored experimental pharmaceutical trials, it might have a unique concern in
drug testing participants to ensure drug interactions did not compromise the results
or endanger participants. Similarly, if a state provided a free drug treatment
program, it might have a special need to test participants to monitor progress and
tailor treatment. In this case, and on this record, however, suspicionless drug
testing of all TANF applicants comes nowhere near meeting this standard -- the
State has not demonstrated that the TANF program as a whole has been
compromised without suspicionless searches. Quite simply, we see no essential
nexus between the legitimate state interest and the condition imposed. Put
differently, the fit is not reasonably proportionated to the harms the State seeks to
avoid. The State argues, nevertheless, that its broadly applicable interests are
special because drug use concerns are particularly strong for TANF applicants, but
it has not presented a persuasive theoretical or empirical account of a unique
problem among TANF applicants. First, no concrete danger exists as a theoretical
matter: we have no reason to think impoverished individuals are necessarily and
inherently prone to drug use, or, for that matter, are more prone to drug use than
the general population. Nor does the State give a reason to think that, if TANF
applicants use drugs, that use is somehow different from drug use by the general
population. Without an obvious and palpable danger, the State makes an empirical
claim that a drug-use problem exists among Florida TANF applicants. Viewing all of the facts in the light most favorable to the State, we agree
with the district court that the State has failed to establish a demonstrable or
peculiar drug-use problem among TANF applicants. If anything, the evidence
extant suggests quite the opposite: that rates of drug use in the TANF population
are no greater than for those who receive other government benefits, or even for
the general public. As we detail below, the evidence in the summary judgment
record does not empirically demonstrate a TANF population drug-use problem. Well before Data collected during the brief implementation of The district court found that no other competent evidence in the record
showed elevated rates of drug use among the Florida TANF population. After
careful review, we agree. The State points to testimony from expert and lay
witnesses that the district court determined either would have been inadmissible at
trial or irrelevant to the prevalence of drug usage among TANF applicants. The
district court committed no manifest error with these rulings. To begin with, the district court did not abuse its considerable discretion in
refusing to consider the expert testimony of Dr. Avram Mack. “[T]he deference
that is the hallmark of abuse-of-discretion review requires that we not reverse an
evidentiary decision of a district court unless the ruling is manifestly erroneous.”
United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc) (quoting
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 143 (1997)) (internal quotation marks
and citations omitted). Thus, the district court‘s discretion is broad: “the abuse of
discretion standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.” Id. at 1259 (quoting Rasbury
v. I.R.S., 24 F.3d 159, 168 (11th Cir. 1994)) (internal quotation marks omitted);
see Joiner, 522 U.S. at 143 (“On a motion for summary judgment, disputed issues
of fact are resolved against the moving party -- here, petitioners. But the question
of admissibility of expert testimony is not such an issue of fact, and is reviewable
under the abuse-of-discretion standard.“). A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if: (a) the expert‘s scientific, technical, or other specialized knowledge
will help the trier of fact to understand the evidence or to determine a
fact in issue; (c) the testimony is the product of reliable principles and methods;
and (d) the expert has reliably applied the principles and methods to the
facts of the case. Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158
F.3d 548, 562 (11th Cir. 1998)). As the proponent of the expert, plainly the State
bears the burden of establishing qualification, reliability, and helpfulness. Id. Before the district court, the State proffered expert testimony from Dr.
Mack, a practicing psychiatrist and professor of clinical psychiatry at Georgetown
University School of Medicine who practiced and taught in Washington, D.C., in a
range of psychiatric and medical fields, including in the areas of drug use and
related disorders. In a declaration and an expert report, Dr. Mack opined about the
general detrimental effects of drug use on individuals, their families, and job
performance, and also opined that drug use among TANF applicants and recipients
is greater than among the general population. Specifically, Dr. Mack said in a
declaration that, based on his expertise and study, it was his opinion that within the
TANF population at least five percent of adults had a drug use disorder (compared
with two percent in the general population) and twenty percent had used drugs
within the past year (against approximately five percent of the general population). As for his testimony concerning rates of drug use in the Florida TANF
population, the district court rejected Dr. Mack‘s opinion, concluding that he was
not sufficiently qualified by background, training, or expertise to offer the opinions
he presented. The district court explained that, while Dr. Mack had authored
articles and books about drug-related issues, and taught about drug-related
disorders, he had never studied, surveyed, or collected any information on the
TANF population in any context, much less TANF applicants in Florida. Lebron,
990 F. Supp. 2d at 1294. Indeed, there is no evidence in this record that Dr. Mack
had conducted any studies about the prevalence of drug abuse among any discrete
segments of the population. According to Dr. Mack‘s testimony, his opinion was
based solely on publications from other researchers. Id. But before an expert can
properly rely on appropriate studies in the field, the proponent of the expert must
establish that these studies are indeed the kinds of studies an expert in the field
would rely on -- and the district court did not abuse its discretion in deciding that
Dr. Mack was not an expert in the relevant field. See Expertise in one field does not qualify a witness to testify about others. See
Increase Minority Participation by Affirmative Change Today of Nw. Fla., Inc. v.
Firestone, 893 F.2d 1189, 1192, 1195 (11th Cir. 1990) (finding no abuse of
discretion when a district court excluded expert testimony from a political scientist
who sought to offer a statistical opinion beyond his expertise); see also Dura Auto.
Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002) (“A scientist,
however well credentialed he may be, is not permitted to be the mouthpiece of a
scientist in a different specialty.“). Dr. Mack has a background in clinical
psychiatry and the treatment of drug abuse, not social science or statistics. But the
crux of Dr. Mack‘s testimony was a claim about the rates of drug use among the
TANF population. A social scientist or statistician with experience in conducting
surveys and parsing their results, and extrapolating conclusions about populations
from limited samples of information, would be in a position to reliably draw such
an inference; a clinical psychiatrist may not be. The State put forward precious
little to suggest he was qualified “by knowledge, skill, experience, training, or
education” to testify about rates of drug use across demographic groups,
particularly among TANF applicants. Nor did the district court abuse its considerable discretion in determining
that Dr. Mack‘s testimony about the general effects of drug use would not assist
the trier of fact. As we‘ve explained, the ills associated with drug use in the
overall population (although well and generally understood) do not support a
special need absent some particular concern about Florida TANF recipients. The
court did not manifestly err in concluding that expert testimony about the effects of
drug abuse on individuals, families, and employment prospects in the general
population in no way would have helped the district court as the trier of fact. The State now argues that the underlying articles relied upon by Dr. Mack
were separately admissible and provided independent support for the State‘s
argument that drug use in the TANF population exceeds rates in the general
population. To weigh against summary judgment, these reports must have been
admissible at trial. But with Dr. Mack excluded, the State did not put forward a
qualified expert to present them. See Nevertheless, the State claims that the district court had the authority to take
judicial notice of the articles because they contained legislative, not adjudicative
facts. See Having rejected Mack‘s expertise, the district court was left with studies
about which it could not readily determine methodological soundness or reliability,
nor establish their relevance to the TANF population in Florida. For example,
almost all of the key articles cited rely on data culled from surveys, either past
versions of the National Survey on Drug and Health (formerly the National
Household Survey on Drug Abuse) or other regional surveys. Significant
methodological questions must be answered before the reliability of these reports
can be assured, including whether surveys are a reliable method of determining
rates of drug abuse in a population, whether the samples relied on are sufficiently
large and unbiased, and whether the results can be extrapolated to the TANF
population at issue in this case. On this record, however, we have no expert to tell
us anything about these important foundational problems. Moreover, none of the articles cited dealt specifically with the Florida TANF
population, so their applicability to the case at hand is by no means self-evident.
For example, as the district court noted, one of the studies involved single mothers
receiving TANF benefits in Cook County, Illinois ten years ago. Lebron, 990 F.
Supp. 2d at 1294. Another study looked at survey data from the TANF population
of an unnamed California county in 2001. Without a qualified expert to comment
on the extent to which these results can be extrapolated to the population at issue in
this case -- a population with a different composition, in a different place, at a
different time -- the reliability and relevance of these reports cannot readily be
determined. In addition, some of these articles were referenced by the State at the
preliminary Although courts of appeals may at times take judicial notice of legislative
facts The district court also disregarded as inadmissible or irrelevant testimony
from three lay witnesses presented by the State. Michael Carroll and Peter Digre,
both employees of DCF, submitted declarations in support of the contention that a
drug problem exists in Florida‘s TANF population. Carroll said that he had
firsthand observed a strong correlation between drug use and employment, as well
as drug use and poverty, and had observed drug use as a substantial barrier to
employment for the population likely to participate in TANF. Carroll added that
he had personally observed hundreds of TANF applicants who appeared to be
under the influence of drugs, and that TANF recipients are more likely to use drugs
than recipients of other government benefits. Digre said he had personally
observed the harms of drug use in the TANF population, and a correlation between
drug use and unemployability. The State also presented deposition testimony from
Bruce Ferguson, an employee of a private, not-for-profit entity that helps
individuals receiving public assistance find work. Ferguson testified in a
deposition that, as part of his job, he referred individuals to a substance abuse
facility when they self-identified as having a drug problem, and that forty-two
clients had self-disclosed a drug or alcohol problem during a ninety-day period. The district court found that the evidence submitted by the State from
Carroll, Digre, and Ferguson was inadmissible and could not have been reduced to
admissible evidence at trial. According to the court, the conclusory statements of
Carroll and Digre about links between drug use and poverty or employability were
incompetent as a matter of law: Carroll and Digre were not qualified as experts,
and their opinions were offered without support from any relevant studies or
empirical data. Moreover, Carroll‘s claim that he had observed TANF applicants
who appeared to be under the influence of drugs was not based on any expertise in
assessing drug use by observation. Lebron 990 F. Supp. 2d at 1295-96. In
addition, the district court explained, even if evidence from Carroll, Digre, and
Ferguson was admissible, it would not have helped the State meet its burden of
establishing a substantial special need. Carroll said he had observed drug use as a
problem for employment among the population “likely” to participate in TANF,
but this did not help the State establish an actual drug problem within the TANF
population. Id. at 1296. Similarly, the district court noted that Ferguson‘s
testimony about self-reports of drug and alcohol abuse from individuals receiving
The district court did not abuse its discretion in rejecting the testimony of the
state‘s lay witnesses. To be admissible, lay testimony must be (1) “rationally
based on the witness‘s perception,” (2) “helpful to clearly understanding the
witness‘s testimony or to determining a fact in issue,” and (3) “not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
1300 (11th Cir. 2005) (“the ability to answer hypothetical questions is ‘[t]he essential difference’ between expert and lay witnesses” (quoting Asplundh Mfg. Div. v. Benton Harbor Eng‘g, 57 F.3d 1190, 1202 n.16 (3d Cir.1995))). In this case, the testimony of Carroll and Digre plainly was offered to support the broad claim that there is a particularly high rate of drug use in the Florida TANF population. This proposition is an inference well beyond what the witnesses had perceived in their day-to-day work; it is a conclusion that would require “specialized knowledge,” Moreover, even if the testimony were allowable under The statements from Digre are even less revealing; he provides no evidence that would support an inference that drug use is more prevalent among the TANF population. Finally, Ferguson‘s testimony that forty-two individuals receiving public assistance self-reported drug or alcohol problems says nothing about drug use in the TANF population: Ferguson did not identify which benefits programs the individuals participated in or whether drugs, and not alcohol, were behind the self reports.5 Thus, even if taken as true, none of the evidence from Carroll, Digre, or Ferguson helped the State meet its special needs burden.6 The State also argues that the Supreme Court in Earls relied on anecdotal evidence to establish a special need to drug test students: teachers had seen students who appeared to be on drugs and had heard students speaking openly about drug abuse. 536 U.S. at 834-35. This argument misses the mark because Earls involved public school children, a group especially entrusted to the government‘s care and demonstrably susceptible to harm from drug use. These powerful special circumstances are not found for Florida TANF applicants. The long and short of it is that, on this summary judgment record, the State has failed to demonstrate a peculiar problem of drug abuse among Florida TANF applicants that elevates the state‘s concern from a general to a special interest. Moreover, even if the State could have established that an unusual rate of drug use among TANF applicants gave rise to a In short, the State has not met its core burden of establishing a substantial special need justifying suspicionless drug testing. The State has not shown elevated rates of drug use among TANF applicants. The State‘s asserted interests in promoting work, protecting families, and saving public money are stated only at the highest order of generality and are all-inclusive. In cases involving surpassing safety threats or public school students, the Supreme Court has carefully cordoned off a category reserved for exceptional circumstances. If the general government concerns raised in this case sufficed for special needs, the Supreme Court in Skinner, Von Raab, Vernonia, Earls, and Chandler spilled much ink in vain. Alternatively, the State argues, even if its suspicionless drug-testing regime otherwise would run afoul of the In Lebron I, the Court rejected the State‘s argument that “the mandatory ‘consent,’ which Florida‘s drug-testing statute makes a condition to the receipt of benefits, is of any constitutional significance.” 710 F.3d at 1214. The panel opinion explained that consent is invalid if it is “granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” Id. (quoting Johnson v. United States, 333 U.S. 10, 13 (1948)). It concluded that, by conditioning TANF benefits on drug testing, “the State conveys a message that it has the unfettered lawful authority to require such drug testing -- period.” Id. at 1215. We also concluded that, because Florida cannot conduct suspicionless drug tests of TANF applicants directly, “it cannot do so indirectly by conditioning the receipt of this government benefit on the applicant‘s forced waiver of his Indeed, subsequent Eleventh Circuit law has echoed the conclusion reached in Lebron I. In AFSCME, Florida argued that mandatory drug testing of public employees was reasonable because employees consented to the testing rather than lose their jobs. As we explained, “[i]n effect, the State is offering its employees this Hobson‘s choice: either they relinquish their Again, no new material facts have emerged in the summary judgment record that alter the outcome under the legal principles laid out in Lebron I, or, for that matter, in AFSCME. The State says that deposition testimony from Lebron indicates that he freely signed the consent form and knew he could refuse the drug test, albeit at the expense of his TANF eligibility. This fact does not affect the result because “[s]urrendering to drug testing in order to remain eligible for a government benefit such as employment or welfare, whatever else it is, is not the type of consent that automatically renders a search reasonable as a matter of law.” AFSCME, 717 F.3d at 875. We also see no merit to the State‘s argument that two recent Supreme Court decisions regarding unconstitutional conditions abrogated our holding in Lebron I, or altered the conclusion drawn in AFSCME, concerning consent. Neither case called into question, much less clearly overruled, our earlier decisions -- instead, both cases involved significantly different constitutional rights and both held that government conditions were unconstitutional. See NLRB v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Apr. 1981) (“Without a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court.“).7 In Agency for International Development v. Alliance for Open Society International, Inc. (AID), 133 S. Ct. 2321, 2324 (2013), the Supreme Court addressed a condition in a federal foreign aid grant program requiring that nongovernment organizations have an explicit policy opposing prostitution and sex trafficking in order to receive funds to fight the global spread of HIV and AIDS. The Court held that the condition Next, in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2595 (2013), a property takings case, the Court applied its decades-old doctrine that the government can “condition approval of a [building] permit on the dedication of property to the public so long as there is a ‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant‘s proposal” (quoting Dolan, 512 U.S. at 391 and Nollan v. Cal. Coastal Comm‘n, 483 U.S. 825, 837 (1987)). This case is equally unavailing. The Court recognized that takings cases “involve a special application” of the unconstitutional conditions doctrine, id. at 2594 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 547 (2005)), far afield from the Moreover, we need not ask separately whether consent to a suspicionless drug test was valid when conditioned on receipt of a government benefit because, in this case, the unconstitutional conditions inquiry is baked into the special needs analysis. Under the analytical framework laid out in Lebron I, and, indeed, in AFSCME, when the government conducts suspicionless drug testing, consent exacted as a condition of receiving a benefit is a factor in the special needs analysis, not an alternative path around Treating consent as a separate and dispositive inquiry would eviscerate the Supreme Court‘s carefully delineated special needs analysis in drug testing cases. After all, special needs balancing accounts for whether consent reduces an individual‘s legitimate expectation of privacy. Tellingly, the drug-testing programs in Skinner, Von Raab, Vernonia, Chandler, and Earls all required consent, but the Supreme Court each time applied the same special needs reasonableness analysis: “the Supreme Court has never held that such drug testing regimes were constitutionally reasonable because of consent.” Lebron I, 710 F.3d at 1215. Allowing a government program that plainly fails the special needs balancing test to move forward solely on the basis of extracted consent would effect an end-run around the Supreme Court‘s well-established approach to suspicionless drug-testing cases.9 Consent to such a search is surely relevant, but it should be considered “through the prism of . . . special-needs balancing.” AFSCME, 717 F.3d at 875. Our conclusion is consistent with the decisions of our sister circuit courts of appeal, which “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 government attempted to compel consent to drug testing as a condition for obtaining some privilege.” AFSCME, 717 F.3d at 876 (citing Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1055, 1067 (7th Cir. 2000)); see also, 9 e.g., Miller v. Wilkes, 172 F.3d 574, 576, 577-82 (8th Cir. 1999) (upholding a school drug testing program after a full special needs analysis and not treating the existence of consent forms as dispositive), vacated as moot, 172 F.3d at 582. “Simply put, we have no reason to conclude that the constitutional validity of a mandated drug testing regime is satisfied by the fact that a state requires the affected population to ‘consent’ to the testing in order to gain access or retain a desired benefit.” Lebron I, 710 F.3d at 1215.10 In the final analysis, the warrantless, suspicionless urinalysis drug testing of every Florida TANF applicant as a mandatory requirement for receiving10 Temporary Cash Assistance offends the AFFIRMED.II.
III.
A.
1.
2.
3.
B.
Notes
All persons residing in Florida who applied for, are applying for, or will in the future apply for, Temporary Cash Assistance (“TCA”), Florida’s program to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent [the preliminary injunction], be subject to Defendant’s mandatory suspicionless drug testing as a result of
Fla. Stat. § 414.0652 .