Skinner v. Railway Labor Executives' Assoc. - Oral Argument
Transcript:
Argument of Dick Thornburgh
Chief Justice Rehnquist: We'll hear argument first this morning in No. 87-1555, James J. Burnley v. Labor Railway Labor Executives' Association.
Mr. Attorney General, you may proceed whenever you're ready.
Mr. Thornburgh: Mr. Chief Justice, may it please the Court:
This is a case about railway safety, about the need to protect railroad employees, the traveling public and the communities through which railroads travel from the hazards created by the use of drugs and alcohol by those in charge of trains, and from the risks posed by their impairment.
The case involves the legality of testing for the presence of drugs and alcohol among railroad employees while on duty and, in particular, subsequent to certain types of railroad accidents.
The American railroad industry and its employees have a long history of safety regulation by government, beginning with the Safety Appliance Act in 1893 running through the Comprehensive Railway Safety Act of 1970 and thereafter.
Regulation of rolling stock, equipment, track and signals and employees has been authorized to protect fellow employees, citizens and communities throughout the United States.
The Hours of Service Act in 1907 was the first legislation to deal with employees by imposing limits on the number of hours that they could work.
That legislation, as noted by this Court in language we suggest to be equally applicable here, was... and I quote...
"induced by reason of the many casualties in railroad transportation which resulted from requiring the discharge of arduous duties by tired and exhausted men whose power of service and energy had been so weakened by overwork as to render them inattentive to duty or incapable of discharging the responsible labors of their positions. "
The 1970 Act--
Unknown Speaker: Mr. Attorney General... Mr. Attorney General, does that legislation and those regulations prohibit the use of alcohol by railroad employees?
Mr. Thornburgh: --The 1907 Act did not deal with that problem, and I would propose to walk us through briefly, as briefly as I can, what led up to what I submit is an authority to carry out that kind of testing--
Unknown Speaker: No, I'm not asking about the testing.
I mean, just... are... are... are railroad employees forbidden to use alcohol the night before they get on... they go to work?
Mr. Thornburgh: --They are, indeed, by operating rules adopted by nearly all railroads, Rule G, which states forth... sets forth in no uncertain terms the prohibition against working or showing up for work under the influence of alcohol or drugs and provides for dismissal in those cases.
Unknown Speaker: What is the period of time between arrival at work and the last time they can have alcohol?
Mr. Thornburgh: That would be a--
Unknown Speaker: Is it governed by--
Mr. Thornburgh: --a judgmental matter.
Unknown Speaker: --It's not governed by regulation.
Mr. Thornburgh: It is not governed by regulation to my knowledge, Your Honor, no.
Unknown Speaker: Well, Mr. Attorney General, what employees are subject to that prohibition?
Trained service personnel, for example?
Mr. Thornburgh: Yes, operating service employees.
Unknown Speaker: Well, would that include the dining car waiters?
Mr. Thornburgh: I'm not sure, Your Honor.
I can't answer that because--
Unknown Speaker: I can testify no.
Mr. Thornburgh: --You can testify no.
Unknown Speaker: No.
Mr. Thornburgh: I will accept an expert witness' testimony on that.
[Laughter]
Adopt the statement by Mr. Justice Marshall.
Well, the program that we have before us today... would that include the dining car waiter?
It would include all in the operating service, yes.
Unknown Speaker: Dining car waiters, and--
Mr. Thornburgh: That's my understanding.
Unknown Speaker: --porters, and--
Mr. Thornburgh: Yes.
Unknown Speaker: --Not just those charged with running the train.
Mr. Thornburgh: Well, specifically and most importantly those charged with running the train.
Unknown Speaker: But the others as well.
Mr. Thornburgh: That's my understanding.
If I'm mistaken, I will advise the Court otherwise.
Unknown Speaker: I think it's rather important.
Mr. Thornburgh: We will undertake to--
Unknown Speaker: At least it is for me.
Mr. Thornburgh: --We will undertake to tighten down on that.
Our focus understandably is on those persons who have the actual manual... literal manual control--
Unknown Speaker: That's the engineer.
Mr. Thornburgh: --Yes, brakeman, fireman, yes.
Unknown Speaker: Firemen.
There's no firemen anymore.
That sort of thing.
But do we take it as a given in the case that the regulation covers some employees that are not engaged in safety-sensitive tasks?
Mr. Thornburgh: The definition is under the Hours of Service Act, which includes operating employees... and I stand corrected and will revert to the practice noticed by Mr. Justice Marshall that dining car employees are not covered by the regulations--
Unknown Speaker: Well, is it your submission that all of those employees are engaged in safety-sensitive tasks?
Mr. Thornburgh: --The Hours of Service employees?
That's the basis of that designation, yes, Your Honor.
Unknown Speaker: Thank you.
I'm not sure I followed this.
Now, you're saying the regulation does not cover dining car employees, not the prohibition on use of alcohol.
You're saying the testing regulation doesn't cover that.
Mr. Thornburgh: No.
I'm saying that the Hours of Service Act definition does not cover dining car employees and it is that definition upon which both Rule G and the regulations here at issue operate.
Unknown Speaker: xxx.
Are they covered?
Mr. Thornburgh: Pullman car employees.
Unknown Speaker: Well, they're on the train.
Mr. Thornburgh: Well, the thrust and the focus of this regulation and the regulatory scheme that has been generally promulgated with regard to railroad employees relates to those employees that have a clear and palpable relationship to the safety of the protected persons, fellow employees, traveling public, citizens and communities around it.
I am not going to palm myself off on this Court as an expert upon where that line is drawn because I think the essence of the argument that the government is making here on behalf of the Federal Railway Administration is that what has been promulgated meets the needs of protecting those designated classes of persons.
I would agree in the premise that underlies the questions that if there is a spare category out there that has no relationship whatsoever to the safety of those individuals or classes of persons, that it would be an overreaching.
I am not aware that there is such a category, however.
Unknown Speaker: Well, are you saying that if the regulation reaches employees who are not in a safety-sensitive position, then it would be invalid?
Mr. Thornburgh: No.
I--
Unknown Speaker: You just say you don't think it does--
Mr. Thornburgh: --Again, with respect to those employees, there might be a... a question.
Unknown Speaker: --I think that's part of your opponent's argument, that it's broader than necessary even on your own rationale.
Mr. Thornburgh: Well, I think when you look at the regulation in its gross operation... and again, I... I don't want to represent to this Court that there may not be somewhere out there an employee or two or category that has... with respect to which Your Honor's concerns might be justified.
What I am saying is that given the extensive review process that was undertaken in the promulgation of this legislation by those who are far more expert than I and most of this Court probably in the categories that have a direct relationship to safety, I know of no such group that is... with respect there may be an overreaching taking place.
Unknown Speaker: Is any such group pointed out in your opponent's briefs, do you recall?
I don't recall it.
I guess we can ask them.
Mr. Thornburgh: I don't, but I suspect that my opponent will scour his brief for such a designation.
Unknown Speaker: General Thornburgh, as long as you're interrupted, may I change the focus of the--
Mr. Thornburgh: Certainly.
Unknown Speaker: --questioning a minute to inquire about what happens to the reports that are received after the drug testing?
For instance, would the FRA turn them over to police for any criminal negligence prosecutions?
What happens to... to the evidence that is gathered in these drug tests?
Mr. Thornburgh: They could be used in either civil or criminal proceedings.
There is no bar under the statute.
Unknown Speaker: Does that raise any concerns under this Court's holding in Schmerber that the evidence gathered after the crash is turned over for a subsequent criminal prosecution?
Mr. Thornburgh: I don't think so because what you're dealing with here is not some ruse to carry on a criminal investigation under the guise of an administrative proceeding, but a set of regulations that has an independent rationale and an independent basis for carrying out the responsibilities of the Federal Railway Administration to investigate accidents and to enforce the rules that are promulgated against drug and alcohol abuse.
Unknown Speaker: Well, is the purpose to discipline the employee involved and get them out of the business of operating a dangerous instrumentality while under the influence of drugs?
Mr. Thornburgh: That is one of a number of purposes that are identified in the regulations deriving their authority from the Railway Safety Act.
Unknown Speaker: How would it affect that goal if there were some prohibition against turning the evidence over to the police for criminal prosecution?
Mr. Thornburgh: I don't know that it necessarily would, Your Honor, because the purpose and focus of the FRA, as Your Honor suggests, is toward the safety portion of the Act which obviously would be enhanced by removing or in some cases rehabilitating through programs that the railroads carry out those employees who have drug and alcohol problems.
It is not a--
Unknown Speaker: But in any event--
Mr. Thornburgh: --law enforcement criminal undertaking that--
Unknown Speaker: --But as this particular program is designed, there are no restrictions on turning the evidence over to the police I take it.
Mr. Thornburgh: --No, there aren't.
Unknown Speaker: Okay.
Mr. Thornburgh: And my suggestion is that that is a concern that is not before the Court in this case if the Court accepts the designation that has been adopted all the way through of the concern about railway safety, which doesn't necessarily turn upon the civil or criminal exposure of any individual using, abusing or being under the influence of drugs or alcohol.
I would like to turn to the basis for the Federal Railway Administration's adoption for these regulations because I think it etches the severity of the problem in a way that indicates the reasonableness of the response.
In the hearings held with respect to these regulations, or what culminated in these regulations, the FRA found that alcohol and drug impairment had contributed to a number of accidents and fatalities.
From 1975 to 1983, at least 45 train accidents and incidents that involved some 34 fatalities, 66 non-fatal injuries, and $28 million in property damage.
They further noted that these figures were likely to be understated due to what they identified as a conspiracy of silence resulting from the fear of employees to come forward on account of their concern about tort liability or the loss of the job if accurate reporting was forthcoming.
All of this existed... these conditions and these difficulties... despite the existence for decades of operating Rule G referred to before which literally prohibits employees from using, possessing or being under the influence of drugs or alcohol while on duty and subjecting them to dismissal for violation.
The procedures adopted are two in number: one mandatory on all railroads, and the other optional.
I think it's significant to note that the regulations did not call for the testing of all employees or for periodic random testing procedures.
They were tied instead to specific events and particular groups of employees, both defined by objective standards.
Subpart C mandates the taking of blood and urine samples from covered employees in three instances: first, following a major train accident, that is, one involving a fatality, the release of hazardous material accompanied by evacuation or a reportable injury, or damage to railroad property exceeding a half a million dollars; secondly, an impact accident resulting in a reportable injury or damages to railroad property exceeding $50,000; and third, a fatality to an on-duty railroad employee.
The samples are to be taken as soon as possible at an independent medical facility and subjected to laboratory analysis using state of the art methods.
The employees are to be notified of results and given an opportunity to respond.
If they refuse to submit to a test, they are taken out of service for nine months.
Unknown Speaker: Now, Mr. Attorney General, I gather there have to be both a blood test and a urine test.
Mr. Thornburgh: That's under Subpart C required, yes.
Unknown Speaker: Well, what does the urine test produce in the way of information that you don't get from the blood test?
Why do you need both?
Mr. Thornburgh: The urine tests act as a preliminary screening process because of their propensity to reach back over a period of up to 30 days to identify those who might be habitual users.
And that would mean that if someone had no substance in the urine, that they would not have to go forward with the blood test.
The blood test, after the urine test, identifies someone as a user of drugs or alcohol over a period of time can make a determination as to current disability so that in the one case the urine test narrows the field of concern to those employees who have used drugs at some time.
The blood test is able to target those who are currently impaired.
Unknown Speaker: Yes, but you take both tests, do you not?
You don't take... what's the sequence?
Mr. Thornburgh: The sequence would be the urine test and then the blood test for the reasons indicated.
Unknown Speaker: And if the urine test produces nothing, you still give the blood test.
Mr. Thornburgh: Yes.
Unknown Speaker: Mr. Attorney General, how accurate is the test?
Mr. Thornburgh: As accurate as can be.
It represents the state of the art and the technology we have today to determine--
Unknown Speaker: Well, is it perfect or not?
Mr. Thornburgh: --Excuse me?
Unknown Speaker: You say accurate as it can be.
Is it perfect or not?
Mr. Thornburgh: Nothing is perfect in this imperfect world, Your Honor, but--
Unknown Speaker: Well, how close is it to being perfect?
Mr. Thornburgh: --I think you'd get differing assessments on that.
It is a recognized, medically and scientifically recognized, method of determining the presence of drug and alcohol in the blood or in the urine, both of these tests.
They have been used and recognized for a considerable period of time.
Unknown Speaker: Does... does the urine test show alcohol traces for a longer... at all and, if so, for a longer period than the blood would show it?
Mr. Thornburgh: Yes.
Unknown Speaker: Yes to both questions?
Mr. Thornburgh: Yes.
Unknown Speaker: So that the urine test could show that alcohol had been used, say, four or five days previous?
Mr. Thornburgh: Yes.
Unknown Speaker: And would that be an indication that the impairment... of an impairment of the operator's skills?
Mr. Thornburgh: Not necessarily, but it would operate as a flag that further inquiry was justified and should be undertaken.
Unknown Speaker: xxx the drug was used, Mr. Attorney General?
Mr. Thornburgh: I can't answer that quantitatively, but clearly it's recognized as a more current indicator of use or impairment.
Unknown Speaker: It would show impairment at the time of the test, would it?
Mr. Thornburgh: That's my understanding.
Again, I... I have to beg off somewhat on the technical precision with which that can be established, but it is the basis for using blood tests in a whole variety of cases that have been before this Court at one time or another.
Unknown Speaker: I understand your position, is it not, as to how bad off it is... if he uses at all, he's in trouble.
Mr. Thornburgh: Well, in trouble is not the conclusion that I would append to that observations, Your Honor.
I think what it would be was an aid, an indicator, in trying to determine the cause of the accident.
Unknown Speaker: Suppose... right.
Suppose a man had one ounce of alcohol 20 hours ago.
He wouldn't lose his job, would he?
Mr. Thornburgh: Not necessarily.
Unknown Speaker: That's what... so, it's not a final determination.
Mr. Thornburgh: No.
Unknown Speaker: The tests.
Mr. Thornburgh: No, it would not be.
And I think the point about these tests is they have to be viewed in the context of the totality of the investigative process that's going forward.
The process that the FRA is charged by law with carrying out is to determine the cause of accidents.
In the case where those accidents are not related to drug or alcohol abuse, the tests in question would provide a degree of assurance that some other kind of cause related to the accident in question.
In the case where drug or alcohol abuse shows up in one or more of the covered employees, then further investigation and the accumulation of observations that may have been made contemporaneously would be suggested.
But as in any case where evidence is divined to produce a conclusion, the process is uncertain and cumulative in its nature.
Subpart... the other subpart of the regulations is a... it permits the railroad to do more than required in Part C and involves other mixes of urine, breath and... and blood tests.
These regulations, as the Court knows, were sought to be enjoined.
The district court granted summary judgment denying same, and the Ninth Circuit Court of Appeals reversed.
That brings us here today.
And I would like, if the Court please, to move to a discussion of what we suggest are the relevant questions of constitutional law that are involved here.
Under the Fourth Amendment, the rights of people to be secure in their persons against unreasonable searches and seizures is not to be violated.
In the normal criminal investigation case, both probable cause and a warrant are generally necessary to render a search reasonable.
In certain criminal and most non-criminal cases, neither is required or has been required by this Court.
The circuit court found neither to be necessary here.
And we would urge the same finding on this Court; that is, this is not a case where probable cause or a warrant are necessary.
This Court in determining the reasonableness of searches and seizures has adopted a balancing test which requires balancing the intrusion of the individual's Fourth Amendment interests against the promotion of legitimate governmental interests.
The court of appeals did not apply such a test.
It found instead that the procedures set forth in the regulations were deficient because they failed to require a particularized suspicion as a trigger for the testing procedures offering the observation... and I quote... that
"accidents, incidents, or rule violations by themselves do not create reasonable grounds for suspecting the tests will demonstrate alcohol or drug impairment in any one railroad employee much less an entire train crew. "
a conclusion which we submit assumes much of what is in issue.
The circuit court reached this conclusion because of its mistaken premise that finding a search justified at its inception requires a determination that there are reasonable grounds for suspecting that the search will turn up the evidence sought.
The court, in short, failed to undertake the balancing test because it presumed the need for a particularized suspicion.
This Court has stated that the Fourth Amendment protects only an expectation of privacy that society is prepared to considerable reasonable and that what is reasonable depends upon the context within which such a search takes place.
I would like to move to that resolution of those balancing questions.
New Jersey v. T.L.O. emphasizes that exceptions to the requirement of individualized suspicion relied upon by the Ninth Circuit may be made... and I quote,
"where the privacy interests implicated by a search are minimal and where other safeguards are available to assure that the individual's reasonable expectation of privacy is not subject to the discretion of the officer in the field. "
In applying this test here, first, it's readily apparent that the search authorized by the regulations at issue manifestly takes place in an atmosphere of diminished expectations of the privacy of the employee.
They take place in the context of an ongoing employment relationship, circumscribed by longstanding concern for the employee's mental and physical wellbeing.
They take place during employment in an historically highly regulated industry, and they take place in an industry which has a history of imposing health and fitness requirements, including in some cases the taking of blood and urine samples and testing similar to that prescribed here.
Unknown Speaker: Mr. Attorney General, the Ninth Circuit majority, as I read their opinion, said that the regulated industry example didn't apply here because the railroad regulations were basically were for the benefit of employees.
And they... they thought that our other regulated industry cases depended on the fact that the industry itself was regulated for the benefit of the public.
Mr. Thornburgh: Mr. Chief Justice, I think we look at this case as one that doesn't necessarily turn on the regulated industry exemption, but which focuses on the balancing test enunciated by this Court.
And in so doing, in looking at the expectation of privacy that is forthcoming on the part of the individual employee, must look at the characteristics of the employment relationship and of the history of the regulation of that relationship, not just the industry, but of that relationship, for whose ever benefit that may be.
The other safeguards in the test from T.L.O. that are available is that the testing is not of a random kind or is it subject to the discretion of supervisors who might target or harass particular employees, but is triggered by objective events and, in the case of Subpart C, is required of all covered employees involved in the incident in question.
The testing must take place as soon as possible at an independent medical facility by qualified medical personnel.
Applying the second part of the balancing test, it seems clear that the searches carried out take place in an area of intense governmental interest.
The public needs to be reassured that every step is being taken to ensure the safety of those who operate these trains.
And with the increasing frequency of the carriage of hazardous materials over the nation's railroads, none of these concerns are matters of little consequences.
Judge Alarcon noted below in dissent:
"An idle locomotive sitting in the roundhouse is harmless. "
"It becomes lethal when operated negligently by persons who are under the influence of alcohol or drugs, the substantial equivalents of time bombs endangering the lives of thousands. "
It might be asked here what are these intrusive tests necessary for?
Why can't simple personal observation exist?
I would suggest the record indicates that this has been tried and found wanting and that the--
Unknown Speaker: Mr. Attorney General, on that point, you test after the time bomb explodes, which is one of the problems here.
And the major accidents that you... that your expert cited is one that took place somewhere in Maryland killing a number of people while the program was in effect, and it didn't deter that.
How do we know this really works?
Mr. Thornburgh: --No suggestion is made or intended that this program is the fool-proof, complete answer to the problem of railway safety.
We're still dealing with human beings and with their judgment and their frailties and their fallibilities.
What we are suggesting is that this is a reasonable response to a gradually increasing phenomenon of drug and alcohol abuse as the cause of major rail accidents.
Unknown Speaker: But your statistics seem to show there's less drug use in the last couple of years than there was before the program went into effect.
Mr. Thornburgh: One would hope that this program has contributed to that, Your Honor.
Unknown Speaker: But the accident I referred to certainly doesn't suggest that.
Mr. Thornburgh: Nor will accidents in the future indicate a complete prophylactic effect of these types of regulations.
We are focusing we hope on the reasonableness and the results of the balancing that has to ensue--
Unknown Speaker: Is it correct that the principal rationale is one of deterrence?
Mr. Thornburgh: --I think there are more than deterrent capabilities present here, but that is an important one.
Unknown Speaker: xxx if xxx also if you find somebody who's involved in an accident has been using drugs you might do something about it--
Mr. Thornburgh: Yes, indeed.
Unknown Speaker: --with respect to that particular person.
Mr. Thornburgh: There is a capability through relevant collective bargaining agreements to terminate those individuals or suspend them or to rehabilitate them through programs that have been adopted by most of the major railroads.
Before closing, I would like to specifically direct the Court's attention to the Third Circuit Court of Appeals holding in Shoemaker where the court found warrantless breath-o-lyzer and urine tests of jockeys to be reasonable under the Fourth Amendment based on the highly regulated nature of the horse racing industry and its employees and the public interest and the integrity of horse racing and the revenues it produced for the State of New Jersey.
Surely the appropriateness of similar tests to the jockeys of these mammoth, high-speed and potentially death-dealing locomotives and other rolling stock properly described by Judge Alarcon as time bombs must be beyond doubt.
What is at stake here is not the public interest in the integrity of the sport of kings, as in Shoemaker, or the revenue it produces, but the very lives, health, safety and property of innocent employees and citizens and of whole communities through which--
Unknown Speaker: Thank you, Mr.--
Mr. Thornburgh: --the nation's railroads pass.
Unknown Speaker: --Thank you, Mr. Attorney General.
Mr. Thornburgh: Thank you, Your Honor.
Unknown Speaker: We'll hear now from you, Mr. Mann.
Argument of Lawrence M. Mann
Mr. Mann: Thank you, Mr. Chief Justice, and may it please the Court:
One focus that I want to bring to the court's attention is that, the purpose of the regulations cannot be complied with under the scheme that's devised in the federal regulation because... and I read...
"the purpose of this part is to prevent accidents and casualties in railroad operations that result from impairment of employees by alcohol or drugs. "
The record is clear that neither the alcohol nor the drug test by urine nor by blood can demonstrate impairment.
A urine test only can show the metabolites of a drug that's in the system.
And in the... indeed, in the regulation itself, the Federal Railroad Administration recognizes that in some cases it can remain in the system up to 60 days.
Now, we have no problems in the railroad unions that one who is using alcohol or drugs should not be working in the railroad system.
That's not the issue here.
The issue is whether or not one in his sole privacy of their homes 60 days ago on a vacation may have used drugs... I'm not suggesting that we condone it, but the mere fact that they used drugs does not in any way have any nexus that while that employee is working that he or she may have used drugs on the job because the tests don't demonstrate it.
Unknown Speaker: Do you assert that a blood test cannot show current extent of impairment from alcohol or drugs?
Mr. Mann: No, Justice O'Connor.
What I'm suggesting is that the... the blood test can show relatively recent usage.
What it cannot demonstrate is that the person is impaired.
And that's what the purpose of this rule is, to prevent impairment.
Unknown Speaker: Well, can't it show, for example, blood alcohol content--
Mr. Mann: It can.
Unknown Speaker: --in the person?
Mr. Mann: Yes.
Unknown Speaker: And doesn't that relate to impairment?
Mr. Mann: Yes, and the alcohol--
Unknown Speaker: It's relevant to that inquiry.
Mr. Mann: --Yes, that's correct.
Unknown Speaker: How about in the drug area?
Mr. Mann: In the drug area, it can show an active ingredient in the blood system, yes.
But it points out the fact, however, that the urine test for metabolites is useless test because it doesn't demonstrate anything different from what a blood test would demonstrate.
And the mere fact that it remains in the system for such a long period of time, at the very minimum, it stays in the system several days even one ingestion of a drug.
So, what is to prevent... what makes it impracticable under your standards of Griffin, as an example?
What makes it impracticable for the government to seek a warrant when they are going to attempt to have a urine test?
Absolutely nothing because the metabolite will always be in that body system.
It will be there no matter how long it's going to take to go to some neutral person to seek a warrant.
Now, with respect--
Unknown Speaker: None of the courts that have considered this, Mr. Mann, have... even the ones who have ruled in your favor, as... as the Ninth Circuit, have suggested that the government had to obtain a warrant.
Mr. Mann: --They did not.
That's correct, Your Honor.
But I'm suggesting that there's nothing that would make it impracticable.
That is the standard... you have said that it would be impracticable to obtain one--
Unknown Speaker: The Fourth Amendment prohibits unreasonable searches, so the test is reasonableness.
Mr. Mann: --That's correct.
And in this case we're saying it is unreasonable for... for one basic purpose.
It cannot demonstrate what the rule was intended to accomplish, that is, impairment particularly with urine testing.
But that doesn't--
Unknown Speaker: Excuse me.
It can't demonstrate that impairment was there in this particular accident with a certainty.
But certainly someone who has cocaine traces, or however that's discovered, in the urine sample, even if it's shown that the cocaine was... was ingested some time before, sufficiently before that you can't say whether there was impairment, don't you think it is reasonable for the railroad to say we want to know that because we don't want someone who is using cocaine to be... to be driving the train next time?
Mr. Mann: --Your Honor, it seems that the proper focus would be using alcohol or drugs on the job.
And the urine test can't demonstrate anything with respect to--
Unknown Speaker: Is--
Mr. Mann: --usage on the job.
Unknown Speaker: --Is not someone who uses cocaine more likely to use it on the job than someone who doesn't use cocaine?
Mr. Mann: I don't think that follows necessarily.
Unknown Speaker: It doesn't?
Mr. Mann: Not necessarily.
A person who is not concerned about being involved in an accident is not going to be concerned about use of drugs or not.
That... I don't think it follows.
It can follow, of course, and it does happen.
Obviously, it happens.
But the urine test doesn't demonstrate... the only thing that urine does is shows a metabolite.
It can't determine how much you use, when you use it or the effects.
Unknown Speaker: Is it your position that the public has no interest in whether or not railroad employees are chronic drug users so long as the drugs are not used while they're on the job?
Mr. Mann: I think it--
Unknown Speaker: Is that your position?
Mr. Mann: --I think it's certainly the interest of the government to know who uses drugs and when, but there are other means to determine that.
For example, in... in the--
Unknown Speaker: So... so it... so, we do have an interest in knowing that.
Mr. Mann: --Yes, I think--
Unknown Speaker: And isn't one of the reasons we want to know that because there is a likelihood or a higher probability that drugs will be used on the job if they're used off the job?
It's just that simple.
Mr. Mann: --Well, that conclusion I don't necessarily agree with, sir.
The reason I don't is because--
Unknown Speaker: Could... could reasonable people disagree on that?
Mr. Mann: --I think so--
Unknown Speaker: All right.
Then it's reasonable for the government to take the position that they do, isn't it?
Mr. Mann: --That is certainly what the government has done in this case.
They have made that determination.
But it... it... it begs the question what they are attempting to accomplish.
How they're going about it accomplishes that result.
And we don't think it does.
It does with respect to blood because it can show a relatively recent active usage, but not with respect to urine.
And the urine doesn't show anything that the blood test would not reveal.
The blood test reveals both active ingredient and metabolites.
The urine test only shows metabolites.
It cannot demonstrate any... any active usage.
Unknown Speaker: Mr. Mann, isn't there a concern about use of drugs even if it's off-duty hours so long as that usage might impair the person's capacity to operate the equipment safely when he is on the job or she is on the job?
It isn't just usage of the drugs while on the job, is it?
Mr. Mann: It's the--
Unknown Speaker: I mean, if somebody takes a drink before going in the engine of the train or has a shot of some drug immediately before or soon before, that's an equal concern, is it not?
Mr. Mann: --It is an equal concern, Justice O'Connor, but the concern should be not what one does in their privacy of their home.
The concern should be what one does on the job and the effects on the job.
And that can be determined.
Unknown Speaker: Well, the concern is what one does before going on the job that will impair the ability of the person to perform the job safely.
Mr. Mann: Yes.
Unknown Speaker: Isn't that true?
Mr. Mann: That's correct, and we agree with that.
Unknown Speaker: And do you think that a... the taking of... the physical taking of blood is less intrusive than a urine specimen?
Mr. Mann: I don't think it's less intrusive, no.
I think the intrusiveness of blood is more so than urine, but--
Unknown Speaker: Then why the focus on a blood test is all right, but not a urine test?
Mr. Mann: --No, I'm not saying that.
I'm just pointing out to the Court what one can show and what one can't.
And in urine, you can't demonstrate any recent usage.
That's the problem with the urine test.
With the blood test, at least you can determine relatively recent usage.
Unknown Speaker: The urine test is better, is it not, for demonstrating traces of use over a period of time?
Mr. Mann: It can--
Unknown Speaker: That's how I understand the record.
That's a fact, isn't it?
Mr. Mann: --Well, so can blood, Your Honor.
Unknown Speaker: Isn't urine better than blood for establishing residues over a period of, say, 30 days?
It's better.
Mr. Mann: It may be more effective, but the blood tests can also demonstrate that by the fact that in the measurement--
Unknown Speaker: Not may be more effective.
It is more effective, isn't it, for that purpose?
Mr. Mann: --I don't think I can honestly answer that, sir.
Unknown Speaker: Mr. Mann, you've spent about eight minutes or more on the difference between the urine and the blood tests.
You have to win on both of them.
Mr. Mann: Well--
Unknown Speaker: Why are you drawing a line?
Mr. Mann: --Your Honor, I think that--
Unknown Speaker: I mean, can you win on just one?
Mr. Mann: --Well, I think the Court could reach a decision that because--
Unknown Speaker: xxx you don't aim at both of them.
Mr. Mann: --Well, I aim at both--
Unknown Speaker: At one time you say urine is bad, and the next time you say blood is bad.
Mr. Mann: --I do believe that the Court could draw a distinction.
I think they're both--
Unknown Speaker: Do you want us to?
Mr. Mann: --bad because--
Unknown Speaker: Do you want us to draw a distinction?
Mr. Mann: --No, sir.
I want you to say that they're both improper.
Unknown Speaker: Well, why are you arguing that?
Mr. Mann: I think they're both improper.
I just wanted to demonstrate to the Court what the distinction is between the two.
Unknown Speaker: xxx.
Mr. Mann: The... the whole concept of the drug test and the alcohol test here is reasonableness and fairness.
For example, the... the tests are performed by companies that are not certified.
These drug companies... and it's an absolute essential that whoever performs these tests that they do be certified.
The... the federal regulations, as they apply to the federal government testing program, does require certified laboratories in accordance with the National Institutes on Drug Abuse.
This regulation doesn't provide that.
That's one aspect of the reasonableness.
Another is--
Unknown Speaker: I... what is... I don't see how that has to do with whether... whether my privacy has been unlawfully and excessively invaded.
You mean if my privacy is invaded by a good scientist, it's okay, but if it's by a bad scientist, it's not any good?
[Laughter]
Mr. Mann: --No, sir.
I think that it is one of the factors in determining what privacy rights are invaded, and--
Unknown Speaker: How so?
Mr. Mann: --it is just one of the factors to show that--
Unknown Speaker: It seems to me it's a factor in determining whether it's a... it's a... it's a... an effective program, but how can that bear upon the... the degree of invasion of my privacy?
Mr. Mann: --Because if... in our judgment, if the test is not valid and the consequences which flow from that could be criminal prosecution, it goes to the invasiveness of this test and it goes to the overall reasonableness of the testing program.
And that relates to whether or not the search in this case is reasonable or unreasonable and the consequences that apply and affect the employee.
And that's one factor.
Unknown Speaker: Yes, Mr. Mann, but isn't one of the purposes of this program to find out why these accidents occur, not merely deterrence?
That's one of the rationales they put forward.
And if you take these tests and you find negative results, you can at least rule out drug-relatedness or alcohol for a significant percentage of the accidents.
Isn't it... doesn't it have an informing purpose that at least is rational?
Mr. Mann: I think it does... in this case it's not designed to determine that because we're only talking about a microcosm of accidents.
Last year and the year before, we've had two years now of history.
Last year there were 170 events which triggered a test.
In the railroad industry, there are over 14,000 accidents or incidents each year.
So, this is only 170 that they're looking at.
Unknown Speaker: But xxx 170 more serious?
Well, is it the more serious ones?
Mr. Mann: That is not where the most people are killed, Your Honor.
Unknown Speaker: That's where anyone is killed.
Mr. Mann: Pardon me?
Unknown Speaker: Where anyone is killed.
Mr. Mann: It's the least area where someone is killed in the railroad industry.
The most people who are killed in the railroad industry are at grade crossings.
That's completely exempt from this regulation.
There were 5,000--
Unknown Speaker: But the fact is the regulation does purport to focus on... on accidents of a certain demonstrated degree of gravity.
Mr. Mann: --It does, but that gravity is so small that it doesn't show the causes of accidents in the railroad industry.
Unknown Speaker: Well, would it be valid if they extended it to reach every accident?
Is that the point you're trying to make?
Mr. Mann: It would certainly be more valid as far as statistical data goes.
Unknown Speaker: So, if they took more tests, then it would be somehow more reasonable.
Mr. Mann: As to the... as to the data gathering, it would have more reliability and validity.
But here we're only talking about 170 events.
Unknown Speaker: xxx.
Do you think it's very reasonable to talk about crossing accidents?
The railroad has hardly anything to do with crossing accidents.
Mr. Mann: In... in many, that's true, Your Honor.
But that's one aspect.
Now, the other is--
Unknown Speaker: Well, it's an important aspect--
Mr. Mann: --It is.
Unknown Speaker: --since you want to go by the numbers.
Mr. Mann: But they don't have--
Unknown Speaker: Just eliminate all crossing accidents, and how many have you got left?
Mr. Mann: --Oh, you have close to 2,000.
Unknown Speaker: All right, 2,000, which you say the railroad may, maybe, have something to do with.
Mr. Mann: Well, we don't know as it relates to alcohol or drugs.
The point is that the government's rationale for the governmental interest here is deterrence, on one hand, and secondly, the statistical data that they will get.
But it really is insignificant, and it's minimal... the statistical data part of it.
With respect to deterrence, I'd like to point out to the Court that in the first 10 months when this rule was operative in 1986, there were 3.7 percent found to be positive for drugs.
In 1987, it increased to 5.1 percent.
For the first six months of this year, it's 6.5 percent which points out that, indeed, this is not a deterrent, this rule, because it's not... it's not focused and it's not directed to the real problem.
Unknown Speaker: So, the... so, the greater the incidence of... of drug use, the less need for a test.
Mr. Mann: No.
I'm... I'm saying, Your Honor, that the basis of the government's rule is that this would be a deterrent, this regulation.
Now, the gut... your gut feeling would be, sure, anything that's going to... urine, a blood test would be a deterrent.
But the facts are that this rule is not getting at the problem.
And on... a comparison is that we have in the railroad industry a program whereby all of these tests that are provided in the federal rule plus additional testing after certain accidents and incidents are carried out.
On the CSX system, as an example, which is the largest railroad in the country, they perform exactly the same tests as the federal rule plus additional testing.
And under that program, which is a fair and balanced program, it shows 3.2 percent positive throughout the system.
Now, that is an effective deterrent program.
And--
Unknown Speaker: Do you have any reason as to why you think--
Mr. Mann: --Yes.
Unknown Speaker: --it deters more than the government program?
Mr. Mann: Yes, I do, Your Honor.
First of all, I don't believe that this program of the federal government is directed at the real problem areas, first of all.
Secondly, it is a... a program which builds in several components that is not here in this case.
One is there is an opportunity for rehabilitation.
The quality of the laboratories are stringently watched.
The--
Unknown Speaker: I can see why those were... are fairness arguments, but I can't see why those would provide more deterrence than the government program.
Mr. Mann: --Well, the... the workers realize that if we have a fair program, they are involved in it.
They are involved in this program from every level.
And by being involved, they assist in assuring that on this railroad, since it is a voluntary program, that the problem will be erased.
And, indeed, it has been effectively erased on the CSX system.
Unknown Speaker: Well, is that a broader program than one limited, as is the government program, to post-accidents?
Mr. Mann: It... it's much broader, yes, sir.
Unknown Speaker: And broader in the coverage of the employees as well?
Mr. Mann: It covers... it covers those employees who are... who have actually entered into an agreement with the railroad.
But, in addition, the railroad automatically extends this to every person in the railroad system.
And that is not the case--
Unknown Speaker: Incidentally, Mr. Mann, do you make any argument that this government program reaches employees like dining car waiters and such?
Mr. Mann: --Oh, well, how it works--
Unknown Speaker: Well, do you have any argument that this goes to far in that respect?
Mr. Mann: --I have an argument that the rule as drafted provides that the entire crew is tested.
There is no discretion.
The entire crew is tested automatically.
And--
Unknown Speaker: By crew you mean those involved in movement of the train.
Correct?
Mr. Mann: --On--
Unknown Speaker: The Hours of Service Act--
Mr. Mann: --Hours of Service Act.
Unknown Speaker: --only covers those involved in movement of the train.
Mr. Mann: But let me give you--
Unknown Speaker: Which would not be dining car porters, right, and would not be sleeping car porters?
Mr. Mann: --Well, let me--
Unknown Speaker: Is that right or wrong?
Mr. Mann: --That's not--
Unknown Speaker: It does not include those people.
Mr. Mann: --That's not necessarily accurate because if they are performing certain work, they can perform dining car work and other related work, and that would bring them under the coverage of the Hours of Service Act on that train.
Unknown Speaker: But the related work would have to be work related to the movement of the train.
Correct?
Mr. Mann: To... to... not necessarily... well, movement in the very general term.
A ticket taker--
Unknown Speaker: Let me... let me read you what the Hours of Service Act says.
"The term "employee" means an individual actually engaged in or connected with the movement of any train, including hostlers. "
whatever that is.
Mr. Mann: --That... those persons who move locomotives in yards.
But to give you an example, on the Amtrak train in the Amtrak accident at Chase, the... the ticket takers on the train... they were subjected to testing.
Now, they're Hours of Service employees.
They are not involved directly in the movement of that train in any way, shape or form.
Unknown Speaker: Well, it seems to me that's the provision of the federal... you ought to be contesting the application of the Wage and... of the Hours of Service Act to those employees if that's the problem.
Mr. Mann: Well, we're saying it's--
Unknown Speaker: Surely that's a different issue.
I mean, we're dealing here, though, with a statute that says you have to be engaged in or connected with the movement of any train.
Mr. Mann: --But the rule is broader.
It covers all Hours of Service employees, but they don't necessarily have to be involved in the movement of the train at the time of an accident.
Unknown Speaker: The rule refers to the definition... the rule only covers people covered by the Hours of Service Act, doesn't it?
Mr. Mann: Yes, sir.
But they're not all--
Unknown Speaker: Which only covers people connected with the movement of the train.
Mr. Mann: --No, sir, that doesn't follow because--
Unknown Speaker: It doesn't?
Mr. Mann: --because a ticket taker on an Amtrak train is I guess theoretically involved in the movement of a train because they take up tickets.
They are covered under this rule.
It's just too broad.
They have nothing to do with what caused that particular accident.
Unknown Speaker: Then... then the Hours of Service Act is too broad.
The Hours of Service Act is--
Mr. Mann: No, sir.
Unknown Speaker: --as I recall it--
Mr. Mann: No.
Unknown Speaker: --says that you can't work for... it's like we have the same thing for--
Mr. Mann: Twelve hours.
Unknown Speaker: --for airline pilots that you can't work an excessive period of time--
Mr. Mann: Yes.
Unknown Speaker: --because it would be dangerous.
Mr. Mann: Yes.
And that's the purpose of that law.
Unknown Speaker: And that... and that covers, you say, conductors as well.
Mr. Mann: Yes.
Unknown Speaker: Well, if it--
Mr. Mann: Sure.
Unknown Speaker: --If there's reason to cover them for that, I guess there's reason to cover them for drug abuse too.
Mr. Mann: They don't want them overworked, Your Honor, which is a good law.
We have no problem with the Hours of Service Act.
Unknown Speaker: Oh, other employees can be overworked, but just these--
Mr. Mann: I think some are, yes.
I think the... the law should be extended to other employees not just those who are working on the train.
It should be extended to others.
Unknown Speaker: --Can... can we assume for purposes of... of deciding this case that the vast bulk of the employees covered by this rule are in safety-sensitive positions?
Mr. Mann: Yes.
Unknown Speaker: I mean, that--
--And--
--There may be some on the fringes, but we're really talking about safety-sensitive xxx.
Mr. Mann: That's correct.
But it doesn't--
Unknown Speaker: And even if... even if the... even... even if this regulation covers non-safety-sensitive positions, it doesn't mean that it's invalid on its face.
Mr. Mann: --Not on its face.
Unknown Speaker: Well, it would just be invalid to that extent.
Mr. Mann: But... but it doesn't mean that that employee was involved in any way in the cause of the accident.
We... we believe that when you look at the entire rule and how it's administered, the manner of the test... for example, the testing procedure itself is one urinates under the direct observation of a technician.
And we think that's just overly broad and overly reaching, and it's unfair the way that people are treated here.
They are herded into... all of the crew members are herded into an atmosphere of tension, first of all, because they don't know whether or not the test is going to be accurate in the first place, and if it shows any positive residue... and you have to understand also the numbers we're talking about.
We're dealing... marijuana as an example in nanograms.
A nanogram is one-billionth of a gram.
And if it shows five nanograms, they consider that to be positive.
There are no thresholds unlike the federal regulations that deal with federal employees.
There are threshold limits below which it is considered to be negative, a negative test result.
Here it's.0001.
And if that shows any kind of residue, that person is considered to be impaired by the regulation and they're going to be fired.
They're fired in the railroad industry.
Only a couple railroads provide for rehabilitation unlike what the Attorney General stated to you.
So, the consequences are grave.
There's no assurances that the test results are going to be accurate.
And you... you have to deal with this in terms of what's fair and reasonable.
Unknown Speaker: Can't we deal with it without tension?
Mr. Mann: I don't.
Unknown Speaker: Do you think this case is going to be decided on tension?
Mr. Mann: No, no, not on tension, but--
Unknown Speaker: You're arguing it.
Mr. Mann: --But that is one of the aspects in my judgment, Your Honor.
The... the testing standards are such that it triggers both psychological intrusions, which this Court has held to be one of the factors, as well as physical intrusions.
And certainly there are psychological factors involved here to deal with what intrusiveness is taking place.
The fact that you are subjected to these kinds of procedures--
Unknown Speaker: xxx the agreement on the railroads, all of the employees have to get physical examinations periodically?
Mr. Mann: --Yes.
Unknown Speaker: Without this statute.
Mr. Mann: That's correct.
Unknown Speaker: So, getting a physical examination doesn't give them tension, does it?
Mr. Mann: But the physical examination, Your Honor... if someone is found to be ill, as an example, they're not fired.
They're given an opportunity to be rehabilitated.
Unknown Speaker: xxx.
Mr. Mann: Here they're fired.
Unknown Speaker: The physical examination is not the point.
You're against the physical examination.
Mr. Mann: No, sir.
I'm not against the physical examination.
Unknown Speaker: You're against the physical examination that includes a urine test.
Mr. Mann: Yes.
Unknown Speaker: Is that accurate?
Mr. Mann: It does include a urine test.
And--
Unknown Speaker: Well, doesn't... doesn't that go on all the time?
Mr. Mann: --It does from pre-employment, Your Honor, and in pre-employment--
Unknown Speaker: For years back.
Mr. Mann: --Yes.
Oh, certainly.
Unknown Speaker: No problem.
Mr. Mann: No problem--
Unknown Speaker: Blood tests.
Mr. Mann: --because it was consented to.
It was freely consented to.
Unknown Speaker: xxx consented to in order to keep your job.
Mr. Mann: That's correct.
[Laughter]
But at the pre-employment stage, you consent to that condition of employment.
Unknown Speaker: In order to keep your job.
Mr. Mann: The existing employees have not consented to a alcohol and drug test for purposes of determining usage.
That is not what they've consented to when they were first hired.
They are imposing a condition after the fact on the employee.
And that goes again to the... to the aspects of voluntarily consenting to an unconstitutional search.
Unknown Speaker: It sounds... it sounds to me like you have a good breach of contract claim if this is something that they weren't... that wasn't--
Mr. Mann: Well, Your Honor, you have a case pending before you, which you have accepted cert in, Conrail v. Railway Labor Executives' Association, in this term which you will be hearing.
Unknown Speaker: --But surely that's a different issue.
I mean, it's not--
Mr. Mann: Yes.
Unknown Speaker: --It seems to me it's not an invasion of... of privacy any more or less because it's a breach of contract--
Mr. Mann: No.
Unknown Speaker: --or because the consequence is firing rather than... rather than counseling, or... or because good or bad scientists are used.
What does any of that have to do with whether it's an invasion of--
Mr. Mann: The consensual aspects, Your Honor, whether or not the employee has consented to the... the invasion, the search.
And we contend that is not voluntary.
It is a coerced consent.
Unknown Speaker: --The government doesn't rely on pure consensual basis for the... for the upholding of it.
Mr. Mann: They... in part only.
They mandate... there's a mandated implied consent in the regulation.
And we contend that obviously is improper in this case as well.
Unknown Speaker: If... if... if the government were arguing consent and it were right, that would be the end of it.
You wouldn't look into the reasonableness and so forth.
Mr. Mann: That's correct.
That's correct.
Unknown Speaker: Mr. Mann, is this situation analogous at all to the situation after a fire where we've held there can be a search without any--
Mr. Mann: In... in Michigan v.--
Unknown Speaker: --particularized suspicion?
Mr. Mann: --Yes.
In Michigan v. Clifford and Taylor--
Unknown Speaker: Taylor, yes.
Mr. Mann: --you said that the fireman can go on the scene to determine the cause of the accident.
However, where it goes to determining a violation of a... of a rule or a statute or regulation, that requires probable cause or at least particularized suspicion.
And that's what we have here.
It's a very similar situation.
Unknown Speaker: You think particularized--
Mr. Mann: They are looking for violations.
Unknown Speaker: --You think particularized suspicion is a threshold requirement for any drug testing program?
Mr. Mann: That's what we believe based on your decision.
Unknown Speaker: Would that be true for the operator of a nuclear plant?
Mr. Mann: Well, there is one case, Your Honor, the Rushton case, that the Court held that that did not mandate particularized suspicion.
But in that case, there were no sanctions imposed on the employee.
It was a random test.
The... the results were confidential.
There were many factors of reasonableness that was built into that rule that is absent here.
And the same thing with Shoemaker.
In Shoemaker, the jockeys... they were directly regulated.
The employees are not directly regulated in the railroad industry by statute.
Only... no one is licensed.
Only the... the railroads themselves are subjected to the regulations.
And only recently did Congress say that the Federal Railroad Administration had to license engineers.
That's still not in effect, but it's only as to engineers.
Moreover, the Shoemaker case... in the first instance, there's only a letter warning.
Secondly, there's rehabilitation.
And thirdly, only after three events of positive is there any sanction imposed.
Unknown Speaker: Mr. Mann, what about the physical inspections that are required periodically?
Is... is there... does there have to be a particularized suspicion that the individual is ill before the... the physical examination can be required?
Mr. Mann: No, the physical examinations are voluntarily agreed to by the employee periodically.
Unknown Speaker: To keep their job.
Mr. Mann: Yes, sure.
They have to be fit.
Unknown Speaker: Same with this.
Mr. Mann: Only with one respect difference, and that is this is an invasive search seeking to have one fired; whereas the medical examination, once you're rehabilitated, you're able to go back to work, and you're not when you have a positive blood or urine test.
Unknown Speaker: Thank you, Mr. Mann.
Mr. Mann: Thank you.
Chief Justice Rehnquist: The case is submitted.
