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Railway Labor Executives' Assoc. Brotherhood of Locomotive et al. Plaintiffs-Appellants
Samuel K. Skinner John H. Riley et al. Defendants-Appellees
No. 89-16571
April 20, 1990 Argued and Submitted San Francisco California
Resubmitted June 6, 1991.
Lawrence M. Mann Alper & Mann Washington District of Columbia for the Plaintiffs-Appellants.
Lowell V. Sturgill Jr. Civil Division United States Department of Justice Washington District of Columbia for the Defendants-Appellees.
Robert R. Beezer Alex Kozinski and Diarmuid F. O'Scannlain Circuit Courts. Diarmuid F. O'Scannlain has been drawn to replace Court Robert C. Bonner. He has read the briefs reviewed the excerpts of record and listened to the tape of oral argument held on April 20,1990.
The Hon Justice Beezer

The Railway Labor Executives' Association ("RLEA") appeals the district court's order granting summary judgment to the Secretary of Transportation. RLEA argues that the Federal Railroad Administration's ("FRA") recently promulgated random drug testing regulations 49 C.F.R. SEC.(S) 219.601-605 (1989) require unreasonable searches in violation of the fourth amendment. It also maintains that the new regulations violate the separation of powers doctrine because they do not fall within the FRA's statutory authority. Finally RLEA contends that the FRA lacked the authority to delegate to private railroads the power to conduct random drug testing. We affirm.


The parties ask us to decide whether random drug testing of railroad workers in safety-sensitive positions *fn1 violates the fourth amendment. The Supreme Court recently decided two drug testing cases that establish the analytical framework for resolving this constitutional question. See Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989) ("RLEA I"); National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989) ("Von Raab"). We recently applied these decisions in Bluestein v. Skinner 908 F.2d 451 (9th Cir. 1990) cert. denied 498 U.S. 1083 112 L. Ed. 2d 1042 111 S. Ct. 954 (1991).

RLEA I involved the same parties to this appeal. In that case the Supreme Court examined regulations authorizing drug tests for employees involved in train accidents or safety rule violations. See 49 C.F.R. SEC.(S) 219.201 219.301 (1989). Reversing our decision in Railway Labor Executives' Ass'n v. Burnley 839 F.2d 575 (9th Cir. 1988) Court held that the regulations did not violate the fourth amendment.

RLEA argues that the Supreme Court's decision in RLEA I does not control the outcome of this case. The regulations analyzed there allowed railroads to test for drugs only after the occurrence of some "triggering event " namely an accident or safety rule violation. 489 U.S. at 630. RLEA contends that the new regulations infringe upon fourth amendment rights because they authorize random drug testing. See 49 C.F.R. SEC. 219.601 (1989).

Although RLEA I did not address the constitutionality of random drug testing it did resolve some issues relevant to this appeal. Court held that urinalysis compelled by the government constitutes a "search" subject to the restrictions of the fourth amendment. 489 U.S. at 617. It explained that the reasonableness of a search should be determined "by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." Id. at 619 (citation omitted).

Court noted that excretory functions are traditionally shielded by great privacy but it explained that the regulations *fn2 attempt to reduce the intrusiveness of the collection process. Id. at 626. The regulations do not require direct observation by a monitor. Id. Furthermore they provide that testing be done in a medical environment resembling a regular physical exam.

Id. at 626-27. Most importantly Court concluded that the employees' expectation of privacy is diminished by "their participation in an industry that is regulated pervasively to ensure safety." Id. at 627. For all these reasons Court characterized the threat to employees' justifiable expectations of privacy as "minimal." Id. at 624.

Court held that the government's interest in railroad safety is compelling and presents a "'special need' beyond normal law enforcement that justif[ies] [a] departure[] from the usual warrant and probable-cause requirements." Id. at 620 (quoting Griffin v. Wisconsin 483 U.S. 868 873-74 97 L. Ed. 2d 709 107 S. Ct. 3164 (1987)). See also O'Connor v. Ortega 480 U.S. 709 721-25 94 L. Ed. 2d 714 107 S. Ct. 1492 (1987) (plurality) (special need for work-related searches of employees' desks and offices); New Jersey v. T.L.O. 469 U.S. 325 337-342 83 L. Ed. 2d 720 105 S. Ct. 733 (1985) (special need for search of student's property by school officials).

Balancing individual and governmental interests Court concluded that the fourth amendment does not require the government to have individualized suspicion of drug use before forcing an individual to submit to urinalysis after an accident or safety rule violation. RLEA I 489 U.S. at 624. Court explained that requiring individualized suspicion would frustrate the government's compelling interest in maximizing safety because drug use is difficult to detect by observation. Id. At 631.

RLEA first argues that the fourth amendment requires at a minimum a triggering event like an accident or safety rule violation to justify a search. Alternatively RLEA maintains that under the Supreme Court's fourth amendment balancing inquiry the balance for random drug testing comes out in favor of employees' privacy rights.

RLEA contends that Court's balancing in RLEA I did not sanction a "no suspicion" standard. Although RLEA I did not require individualized suspicion for drug testing the regulations at issue there permitted drug testing only after the occurrence of a triggering event. When an employee violates a safety rule or is involved in an accident there is some reason to believe that he or she may have been under the influence of drugs. Random testing is not premised upon a safety-related triggering event. RLEA argues that there is no close nexus between the invasion of fourth amendment interests under the new regulations and the government's interest in safety.

We do not agree with RLEA that the fourth amendment requires that searches be premised upon a safety-related triggering event in this case. Suspicionless searches can be constitutional. The Supreme Court did not require a safety-related triggering event in Von Raab. 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384.

The Von Raab Court held that the government could require urine samples from Customs employees who apply for promotions involving drug interdiction or the use of firearms. The triggering event in Von Raab the act of seeking a promotion was unrelated to safety. In fact the Supreme Court said that the government could test Customs employees for drugs even though the government had no reason to believe that Customs employees used drugs. Id. at 668.

RLEA maintains that even if searches not premised on safety-related triggering events can pass constitutional muster employees' interests under random testing outweigh governmental interests. The new regulations infringe upon fourth amendment rights more than the regulations in RLEA I. Instead of authorizing bodily fluid searches only after the relatively rare occurrence of an accident or safety rule violation the new regulations ensure that every employee apprehends the threat of testing each working day.

See 49 C.F.R. SEC. 219.601(b)(3) (1989). Under the new regulations one half of the relevant workforce will be randomly tested each year. Id. SEC. 219.601(b)(2). The Federal Railroad Administration purposely adopted the more intrusive random testing regulations to provide a greater deterrent to drug and alcohol use.

The government counters that any increased intrusion on the privacy interests of employees is more than offset by enhanced safety. Having solicited comments on the ability of random testing to reduce the use of controlled substances the FRA noted that the commenters were "nearly unanimous in their appraisal of the deterrent effect of random testing." See 53 Fed. Reg. 47 106 (1988).

The Secretary of Transportation argues at great length that random testing is necessary because limiting drug testing to triggering events has not reduced accidents enough. *fn3 We note that the Supreme Court in RLEA I showed a willingness to defer to FRA safety judgments when it declined to "second-guess the reasonable conclusions drawn by the FRA after years of investigation and study." RLEA I 489 U.S. at 629 n.9.

Faced with a similar problem involving random drug testing in the airline industry we recently held that safety interests outweigh the privacy interests of employees. See Bluestein 908 F.2d 451. The regulations in Bluestein like the ones in this case required random unannounced testing of half the workforce each year. Id. at 453.

We upheld the regulations nonetheless reasoning that although the fact that testing was random and unannounced added "some weight to the invasion of privacy side of the Fourth Amendment balance " it was "insufficient to tip the scales against the drug testing program." Id. at 457 (quotations omitted); see also International Brotherhood of Teamsters v. Dept. of Transp. 932 F.2d 1292 (9th Cir. 1991) (upholding Federal Highway Administration regulations requiring random drug testing of commercial vehicle operators). We can find no principled distinction between the regulations in Bluestein and the ones challenged here.

Several other circuit courts have also upheld random drug testing since the Supreme Court's decisions in RLEA I and Von Raab. See e.g. Taylor v. O'Grady 888 F.2d 1189 1198-99 (7th Cir. 1989) (upholding random urinalysis of certain employees in state jail); American Fed'n of Gov't Employees v. Skinner 885 F.2d 884 891 (D.C. Cir. 1989) cert. denied 495 U.S. 923 109 L. Ed. 2d 321 110 S. Ct. 1960 (1990) (upholding Department of Transportation's random urinalysis plan); Transport Workers' Union v. Southeastern Pa. Transp. Auth. 884 F.2d 709 713 (3d Cir. 1989) (upholding random testing of mass transit employees);

Thomson v. Marsh 884 F.2d 113 115 (4th Cir. 1989) (upholding random drug testing of Army employees working with chemical weapons); Harmon v. Thornburgh 278 U.S. App. D.C. 382 878 F.2d 484 486 (D.C. Cir. 1989) cert. denied 493 U.S. 1056 110 S. Ct. 865 107 L. Ed. 2d 949 (1990) (upholding the Department of Justice's random drug testing plan for employees holding top secret national security clearances);

Guiney v. Roache 873 F.2d 1557 1558 (1st Cir.) cert. denied 493 U.S. 963 107 L. Ed. 2d 370 110 S. Ct. 404 (1989) (upholding random drug testing of Boston Police Department employees required to carry firearms or involved in drug interdiction). Bound by the Supreme Court's decisions in RLEA I and Von Raab and our previous decision in Bluestein we conclude that the FRA's random drug testing regulations do not unconstitutionally infringe upon the privacy interests of employees.


RLEA also contends that the FRA's random drug test regulations violate the separation of powers doctrine because they allow the executive branch to usurp legislative power. Although Congress generally cannot delegate legislative power to another branch it can constitutionally delegate rule-making power to the executive when it lays down an "intelligible principle" by statute to guide the executive. See Mistretta v. United States 488 U.S. 361 372 102 L. Ed. 2d 714 109 S. Ct. 647 (1989).

The intelligible principle authorizing the FRA to promulgate random drug testing as a safety measure can be found in 45 U.S.C. SEC. 431(a) (the Secretary of Transportation can promulgate "appropriate rules regulations orders and standards for all areas of railroad safety"). We believe the FRA's random drug testing regulations do not violate the separation of powers doctrine. See Amalgamated Transit Union v. Skinner 282 U.S. App. D.C. 322 894 F.2d 1362 1372 & n.9 (D.C. Cir. 1990) (the FRA's random drug testing regulations do not violate separation of powers because FRA has direct regulatory authority) (dicta).


Finally RLEA contends that the FRA did not have the power to require private railroads to implement random drug testing. We have already held that the FRA had power to promulgate regulations requiring private railroads to test employees for drugs after accidents or safety rule violations. Burnley 839 F.2d at 590 rev'd on other grounds sub nom. Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989). We explained that "45 U.S.C. SEC. 437(a) authorizes the Secretary to delegate to any qualified persons functions respecting examination inspection and testing of persons as necessary to carry out the provisions of that subchapter." Id. The FRA can therefore delegate to private railroads the power to conduct random "testing of employees."


We agree with the district court's decision that the FRA's random drug testing regulations do not violate the fourth amendment that they do not violate the separation of powers doctrine and that they do not unlawfully delegate authority to private railroads.



*fn1 The FRA's regulations require random drug testing of Hours of Service employees. 49 C.F.R. SEC. 219.5 (1989) ("covered employee" means a person who has been assigned to perform service subject to the Hours of Service Act (45 U.S.C. SEC.(S) 61-64 (1982))). The Supreme Court has explained that "hours of service employees covered by the FRA regulations include persons engaged in handling orders concerning train movements operating crews and those engaged in the maintenance and repair of signal systems.

It is undisputed that these and other covered employees are engaged in safety-sensitive tasks. The FRA so found and respondents conceded the point at oral argument." Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 620 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989) (citation omitted). RLEA does not challenge the government's contention in this case that the random drug testing regulations only apply to employees in safety-sensitive positions.

*fn2 Apart from the random nature of the testing RLEA does not argue that the method of obtaining urine samples under the random drug testing regulations differs in a constitutionally meaningful sense from the urinalysis procedure discussed by the Supreme Court in RLEA I 489 U.S. at 626. Although the FRA has amended the regulations governing the method of obtaining urine samples discussed in RLEA I see 49 C.F.R. SEC.(S) 40 219.701 (1989) RLEA has not argued that the privacy aspects of the regulatory procedure discussed by the Supreme Court have been altered substantially by the FRA's newer regulations see especially id. SEC. 40.25(a) (e) (1989) (privacy aspects of newer regulations) which apply to both testing triggered by safety-related events and random testing.

*fn3 The government argues that between January 1987 and August of 1988 there were 54 accidents in which one or more employees tested positive for unauthorized use of controlled substances. Thirty-two people died in those accidents 857 people were injured and more than $33 million in railroad property was destroyed.