United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 26, 2009 Decided May 15, 2009
No. 08-1264
BNSF RAILWAY COMPANY, ET AL.,
PETITIONERS
v.
UNITED STATES DEPARTMENT OF TRANSPORTATION,
RESPONDENT
INTERNATIONAL ASSOCIATION OF MACHINISTS AND
AEROSPACE WORKERS,
INTERVENOR
Consolidated with 08-1276, 08-1338, 08-1342, 08-1361,
08-1362, 08-1378
On Petitions for Review of a Final Rule
issued by the Department of Transportation
Donald J. Munro argued the cause for petitioners. With
him on the briefs were William F. Sheehan, Jeffrey A. Bartos,
Harold A. Ross, Mitchell M. Kraus, Clinton J. Miller, III,
Daniel R. Elliott, III, William A. Bon, Michael S. Wolly,
Roland P. Wilder, Jr., Lawrence Mann, Larry I. Willis,
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Bradley T. Raymond, James McCall, James W. Johnson, and
Suzanne L. Kalfus.
Louis P. Warchot and Michael J. Rush were on the brief
for amicus curiae Association of American Railroads in
support of petitioners.
Mark W. Pennak, Attorney, U.S. Department of Justice,
argued the cause for respondent. With him on the brief were
Gregory G. Katsas, Assistant Attorney General, and Leonard
Schaitman, Attorney. Lowell V. Sturgill, Jr., Attorney,
entered an appearance.
Before: HENDERSON, TATEL, and KAVANAUGH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
TATEL, Circuit Judge: Under Department of
Transportation regulations, employees in the aviation, rail,
motor carrier, mass transit, maritime and pipeline industries
who either fail or refuse to take a drug test must successfully
complete a drug treatment program and pass a series of urine
tests as a condition of performing any safety-sensitive duties.
To prevent cheating, the Department modified its regulations
in 2008 to require that such tests be conducted under direct
observation. Petitioners, a railway company and several
transportation unions, challenge the revised regulation,
arguing that it violates both the Administrative Procedure Act
and the Fourth Amendment. For the reasons set forth in this
opinion, we find the Department’s considered justification for
its policy neither arbitrary nor capricious, and although we
recognize the highly intrusive nature of direct observation
testing, we conclude that the regulation complies with the
Fourth Amendment.
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I.
Acting pursuant to the Omnibus Transportation
Employee Testing Act of 1991, Pub. L. No. 102-143, tit. V,
105 Stat. 917, the Department of Transportation promulgated
regulations requiring pre-employment, random, and post-
accident drug and alcohol tests for employees throughout the
transportation industry. 49 C.F.R. pt. 40. Employees who fail
or refuse to take drug tests are barred from performing safety-
sensitive duties until they complete a treatment program under
the supervision of a substance abuse professional. 49 C.F.R.
§ 40.285. Employees who successfully complete the program
must then pass a “return-to-duty” urine test before resuming
safety-sensitive duties. 49 C.F.R. §§ 40.285, .305. During
the next twelve months, the employees must also pass at least
six unannounced “follow-up” urine tests. 49 C.F.R. §§
40.307(d), .309.
Prior to the rulemaking at issue in this case, employers
had the option of conducting return-to-duty and follow-up
tests using so-called “direct observation,” a procedure that
requires a same-gender observer to “watch the urine go from
the employee’s body into the collection container.” 49 C.F.R.
§ 40.67(i) (2007). Concerned that employers were
underutilizing this option, especially in light of evidence of a
growing proliferation of products that facilitate cheating on
drug tests, the Department solicited comment on additional
procedures to strengthen testing integrity. In 2008, the
Department promulgated a regulation requiring transportation
industry employers to use direct observation for all return-to-
duty and follow-up testing. Procedures for Transportation
Workplace Drug and Alcohol Testing Programs, 73 Fed. Reg.
62,910, 62,918 (Oct. 22, 2008) (“Direct Observation Rule”).
The regulation also requires that immediately prior to all
4
direct observation tests, employees must raise their shirts
above the waist and lower their lower clothing so as to expose
their genitals and allow the observers to verify the absence of
any cheating devices. 49 C.F.R. § 40.67(i) (2008).
Several transportation industry unions and the BNSF
Railway Company, supported by amicus Association of
American Railroads, petition for review. Although the partial
disrobing requirement became effective on August 27, 2008,
we stayed the direct observation requirement pending our
resolution of these consolidated petitions. BNSF Ry. Co. v.
DOT, No. 08-1264 (D.C. Cir. Nov. 12, 2008). Petitioners
argue that the Department’s decision to impose these
requirements violates the Administrative Procedure Act’s
(APA) prohibition on arbitrary and capricious agency action
and the Fourth Amendment’s protection against unreasonable
searches. We consider each argument in turn.
II.
Under the Hobbs Administrative Orders Review Act, we
evaluate Department of Transportation orders using the
familiar standards set forth in the APA. ICC v. Bhd. of
Locomotive Eng’rs, 482 U.S. 270, 282 (1987); 28 U.S.C. §
2342(3)(A). Under that framework, agencies must provide a
“rational connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of the United States, Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(internal quotation marks omitted). Petitioners argue that the
Department’s promulgation of the revised regulation was
arbitrary and capricious under this standard. We disagree.
The Department marshaled and carefully considered
voluminous evidence of the increasing availability of a variety
of products designed to defeat drug tests. It cited
congressional testimony describing the ready availability,
5
through Internet sales, of hundreds of different cheating
products, Direct Observation Rule, 73 Fed. Reg. at 62,912,
the most elaborate of which is a “prosthetic device that looks
like real human anatomy, color-matched,” that can be used to
deliver synthetic or drug-free urine, id. at 62,911. The
Department also relied on a Government Accountability
Office (GAO) report indicating that existing drug testing
protocols were inadequate to prevent cheating. According to
the report, GAO undercover investigators were able to
adulterate their urine specimens even at testing sites that
followed then-existing procedures. Id. at 62,912. Based on
this and similar evidence, the Department determined it was
“not practicable” to ignore the cheating problem. Id. at
62,916.
Petitioners dispute none of this evidence. Instead, they
fault the Department for failing to provide direct evidence that
employees are actually using cheating devices.
Acknowledging that it had no statistics on the rates of actual
use of such devices, the Department inferred their use from
the anecdotal evidence of their availability. Id. at 62,913. As
any successful use of cheating devices would not show up in
statistics, the Department reasoned, it was “illogical” to
require statistical evidence of cheating. Id. Given that people
presumably buy cheating devices to use them, we think this
approach quite reasonable. As the Supreme Court said just
over two weeks ago, “It is one thing to set aside agency action
under the Administrative Procedure Act because of failure to
adduce empirical data that can readily be obtained. It is
something else to insist upon obtaining the unobtainable.”
FCC v. Fox Television Stations, Inc., No. 07–582, 2009 WL
1118715, at *11 (U.S. Apr. 28, 2009) (citation omitted).
Petitioners devote most of their effort to a separate
argument—that whether or not cheating is a problem
6
generally, the Department acted arbitrarily and capriciously in
concluding that returning employees are more likely to cheat
than employees not subject to direct observation testing. But
the Department’s approach was sound. Acknowledging the
intrusiveness of direct observation testing, the Department
sought to limit it to situations posing a high risk of cheating,
id. at 62,911, and then concluded—reasonably in our view—
that returning employees have a heightened incentive to cheat,
and that this incentive, coupled with the increased availability
of cheating devices, creates such a high risk, id. at 62,916.
The Department’s conclusion that returning employees
have a heightened incentive to cheat rested in part upon the
heavy sanctions reserved for repeat violations. The
Department noted that many employers have adopted “two
strikes and out” policies that require termination upon a
second drug violation, id. at 62,914, and that in the aviation
industry second offenders are subject to a statutory permanent
bar on aviation-related employment, id.; see 49 U.S.C. §
45103(c). Petitioners object that the Department’s reasoning
is inconsistent with its treatment of post-accident testing. As
petitioners point out, although employees involved in
accidents are subject to mandatory testing immediately after
the event, see, e.g., 49 C.F.R. §§ 199.105(b); 219.201(a);
382.303(b); 655.44(a), that testing is not directly observed, §
40.67(a)–(c). According to petitioners, treating post-accident
and returning employees differently is irrational because the
former, subject as they are to civil or criminal liability, have
just as great an incentive to cheat as the latter.
Petitioners’ argument might have had some force had the
Department relied solely on this theory. But it didn’t.
Substantial additional evidence supports the Department’s
conclusion that returning employees are particularly likely to
cheat. Specifically, several substance abuse professionals
7
submitted comments supporting the direct observation
requirement, and the Department reasonably put “a great deal
of weight” on their assessments, stressing their expertise and
first-hand experience in administering the treatment programs
and planning the follow-up testing. Id. at 62,914. To be sure,
several substance abuse professionals spoke only generally
about the cheating problem, but others expressly stated that
returning employees in particular have a heightened motive to
cheat. One said that “[p]ersons who have broken trust with
the traveling public by testing positive for a prohibited
substance, although they knew they would be drug tested, are
high risk for using that substance again and motivated to
conceal their conduct.” Comments of Evan M. Peterson,
Dep’t of Transp. Docket No. OST-2003-15245 (Sept. 9,
2008). [J.A. 272.] Another said that “those who have tested
positive in the past, and who continue to abuse drugs, are
motivated by their addiction to adulterate, substitute, or use
prosthetic-type devices to provide a ‘clean’ specimen at the
collection site.” Comments of Susan L. Clark, Dep’t of
Transp. Docket No. OST-2003-15245 (Sept. 26, 2008). [J.A.
323.] Given the experience possessed by these substance
abuse professionals, such assessments provide substantial
evidence supporting the Department’s conclusion that
returning employees are particularly likely to cheat on drug
tests.
Moreover, the Department supplemented its conclusion
about returning employees’ motivations with evidence of their
actual behavior. To rebut the argument—offered by several
commenters and echoed here by petitioners—that returning
employees are lower risk because they have successfully
completed drug treatment programs, the Department
emphasized data showing that “the violation rate for return-to-
duty and follow-up testing is two to four times higher than
that of random testing.” Direct Observation Rule, 73 Fed.
8
Reg. at 62,916. Petitioners point out that these statistics
measure only failure, not cheating. Indeed, petitioners claim
that data showing returning employees’ higher recidivism
rates may simply indicate that they are less likely to cheat on
drug tests. Theoretically we suppose it might. But the
Department was surely entitled to take the contrary view. We
can hardly fault the Department for inferring that the reason
for higher failure rates is not that returning employees are
more honest, but that they are more likely to use drugs. And
given that employees who never use drugs are—to say the
least—much less likely to cheat on drug tests than those who
do, we think it quite reasonable for the Department to see a
higher underlying rate of drug use as evidence of a higher risk
of cheating.
Finally, petitioners complain that the Department failed
to consider less intrusive alternatives. They point out that
some commenters suggested that the Department test hair and
saliva rather than urine. As the Department explained,
however, the Omnibus Testing Act required it to use only
testing methods approved by the Department of Health and
Human Services, which “ha[d] not approved any specimen
testing except urine.” Id. at 62,917; see also 105 Stat. 917,
955, 957, 959, 963. And although commenters suggested
other safeguards such as further training of collection
personnel and pursuit of additional legislative authority, the
Department responded—again reasonably in our view—that it
was pursuing these approaches as well but that they could not
substitute for the efficacy of direct observation. Direct
Observation Rule, 73 Fed. Reg. at 62,916–17.
In their brief, petitioners suggest some additional less
intrusive alternatives, pointing out for example that the
government has successfully prosecuted makers of one
prominent prosthetic device, the “Whizzinator,” for
9
conspiring to defeat federal drug tests. Petrs.’ Reply Br. 11.
But the mere fact that the government can occasionally
prosecute makers of some cheating devices hardly renders
irrational the Department’s decision to address the risks posed
by the host of similar devices still on the market. Petitioners
also suggest that the existing regulations, permitting but not
requiring direct observation for returning employees,
represent an alternative means of adequately ensuring
transportation safety. But the Department found that
employers, concerned about the effects on “labor-
management agreements” and fearing “upsetting employees,”
rarely exercise this option. Direct Observation Rule, 73 Fed.
Reg. at 62,917. Indeed, amicus Association of American
Railroads confirms that direct observation tests “generate
resentment and ill will towards management,” Amicus Br. 8,
further supporting the Department’s conclusion that the status
quo was untenable.
Thus, the Department acted neither arbitrarily nor
capriciously in concluding that the growth of an industry
devoted to circumventing drug tests, coupled with returning
employees’ higher rate of drug use and heightened motivation
to cheat, presented an elevated risk of cheating on return-to-
duty and follow-up tests that justified the mandatory use of
direct observation. We thus turn to petitioners’ argument that
the Department’s suspicionless use of direct observation for
returning employees, as well as the partial disrobing
requirement, runs afoul of the Fourth Amendment.
III.
Compelled urine tests are searches for the purposes of the
Fourth Amendment’s prohibition on “unreasonable searches
and seizures,” U.S. CONST. amend. IV. See Skinner v. Ry.
Labor Executives Ass’n, 489 U.S. 602, 617 (1989). Although
warrantless searches are, “subject only to a few specifically
10
established and well-delineated exceptions,” Arizona v. Gant,
No. 07-542, 2009 WL 1045962, at *5 (U.S. Apr. 21, 2009),
generally unreasonable, drug tests for transportation safety
fall into the “special needs” exception to the warrant
requirement. Skinner, 489 U.S. at 619–20. Under this
framework, we may uphold a warrantless search serving
“special needs, beyond the normal need for law enforcement,”
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)
(internal quotation marks omitted), if, upon conducting a
balancing test, we find that the government’s interest in
conducting the search outweighs the individual’s privacy
interest, id. at 652–53.
The government’s interest in transportation safety is
“compelling,” to say the least. Skinner, 489 U.S. at 628.
“Employees subject to the tests discharge duties fraught with
such risks of injury to others that even a momentary lapse of
attention can have disastrous consequences.” Id. Petitioners
dispute the extent of the cheating problem, but as discussed
above, the Department permissibly found it to be great
indeed. Cf. Vernonia, 515 U.S. at 662–63 (reviewing for
clear error district court findings of fact regarding the extent
of a school’s drug problem). And although the effectiveness
of a search compared to available alternatives may be relevant
to the government’s interest in conducting the search, see
Delaware v. Prouse, 440 U.S. 648, 659 (1979), there is no per
se requirement that the government use the least intrusive
practicable means, Vernonia, 515 U.S. at 663. Given the
proliferation of cheating devices, we have little difficulty
concluding that direct observation furthers the government’s
interest in effective drug testing.
Petitioners argue that the unannounced nature of follow-
up tests diminishes the need for direct observation testing.
We think the Department’s contrary assessment was
11
reasonable. See Skinner, 489 U.S. at 629 n.9 (deferring to
agency’s rejection of less intrusive alternatives). Though the
precise dates of follow-up tests are unannounced, returning
employees know they will have to face at least six such tests
over the first year of their return to work. § 40.307(d).
Armed with such foreknowledge, returning employees can
easily obtain and conceal cheating devices, keeping them
handy even for unannounced follow-up tests. See Direct
Observation Rule, 73 Fed. Reg. at 62,912 (noting
concealability of cheating products). The government thus
has a strong interest in conducting direct observation testing
to ensure transportation safety.
The other side of the balance is trickier. Individuals
ordinarily have extremely strong interests in freedom from
searches as intrusive as direct observation urine testing. In
this case, however, those interests are diminished because the
airline, railroad, and other transportation employees subject to
direct observation perform safety-sensitive duties in an
industry that is “regulated pervasively to ensure safety.”
Skinner, 489 U.S. at 627. That said, when the Supreme Court
recognized the diminished nature of transportation
employees’ privacy interests and found suspicionless drug
testing permissible, it stressed that the tests at issue in that
case required no direct observation. Id. at 626; see also
NTEU v. Von Raab, 489 U.S. 656, 672 n.2 (1989) (similar
regarding testing of armed customs officers). The Court thus
had no occasion to decide whether merely performing safety-
sensitive duties in an industry pervasively regulated for safety
diminishes employee privacy interests so drastically as to
allow direct observation urine testing.
According to the Department, returning employees have
diminished privacy interests for reasons over and above their
performance of safety-sensitive duties in a pervasively
12
regulated industry. It claims that their privacy interests are
diminished by the existing drug testing regulations, which
currently permit employers to use direct observation on
return-to-duty and follow-up examinations. See supra at 3.
To avoid circularity, of course, one’s privacy interests can
only be diminished by a valid regulation. True, as the
Department points out, petitioners don’t challenge the existing
regulations, but petitioners contend that under those
regulations discretionary direct observation is employed only
in cases of reasonable suspicion, a claim the Department
never rebuts. Petrs.’ Opening Br. 9; Petrs.’ Reply Br. 17. For
our purposes, then, the existing regulations are of limited
relevance to the employees’ interests in freedom from the
suspicionless direct observation searches required by the
challenged regulation.
We see more merit in the Department’s second reason for
suggesting that returning employees’ privacy interests are
diminished, namely that all have violated the Department’s
drug regulations by either refusing to take a test or testing
positive. As petitioners make no claim that the drug tests
suffer from a false positive problem, the violations were, for
the purposes of this case, actual and intentional, and in this
sense the Department is correct. By choosing to violate the
Department’s perfectly legitimate—and hardly onerous—drug
regulations, returning employees have placed themselves in a
very different position from their coworkers. Of course, this
does not mean, as the Department claims, that returning
employees are akin to convicted offenders on probation or
parole; after all, the latter are subject to penal sanctions
imposed after criminal process. Cf. Griffin v. Wisconsin, 483
U.S. 868, 874 (1987) (“Probation, like incarceration, is a form
of criminal sanction imposed by a court upon an offender
after verdict, finding, or plea of guilty.” (internal quotation
marks omitted)). Nor is the privacy diminution occasioned by
13
the intentional violation of a drug regulation either everlasting
or dispositive—even following a fully informed violation,
some searches might still be so disproportionate to
government interests as to be unreasonable. That said, we
have little trouble concluding that employees who have
intentionally violated a valid drug regulation, at least in the
relatively recent past, see § 40.307 (providing a five-year time
limit on follow-up tests), have less of a legitimate interest in
resisting a search intended to prevent future violations of that
regulation than do employees who never violated the rule.
We turn, then, to balancing the individuals’ interest with
the government’s. Although weighing the strength of each is
necessarily imprecise, we think that the employees’ prior
misconduct is particularly salient, especially compared to
their choice to work in a pervasively regulated industry. It’s
one thing to ask individuals seeking to avoid intrusive testing
to forgo a certain career entirely; it’s a rather lesser thing to
ask them to comply with regulations forbidding drug use.
True, direct observation is extremely invasive, but that
intrusion is mitigated by the fact that employees can avoid it
altogether by simply complying with the drug regulations. On
the other side of the balance, the Department has reasonably
concluded that the proliferation of cheating devices makes
direct observation necessary to render these drug tests—
needed to protect the traveling public from lethal hazards—
effective. Weighing these factors, we strike the balance in
favor of permitting direct observation testing in these
circumstances.
Petitioners insist that we reached a different result in
NTEU v. Yeutter, 918 F.2d 968, 976 (D.C. Cir. 1990). There
we held unconstitutional a regulation requiring direct
observation for drug tests that rested on reasonable suspicion
of drug use but no suspicion of cheating. Id. at 976; see also
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Piroglu v. Coleman, 25 F.3d 1098, 1101 (D.C. Cir. 1994)
(citing to Yeutter’s holding without further analysis). In
Yeutter, however, we expressly left open the question whether
direct observation could ever be permissible, instead relying
solely on our conclusion that the direct observation
procedures at issue “d[id] not significantly improve testing
accuracy.” Yeutter, 918 F.2d at 976. That conclusion in turn
rested largely on the premise, supported by the record in that
case, that standard monitoring procedures—“collecting outer-
garments, dying toilet water, listening for urination”—were
adequate to detect cheating. Id. But that was before the
Whizzinator and its like. Given the proliferation of such
cheating devices, here we have a very different record, one
that fully supports the Department’s finding that standard
monitoring procedures are inadequate. We thus conclude that
here, unlike in Yeutter, direct observation testing will
“significantly improve testing accuracy,” id.
Petitioners also claim that the partial disrobing
requirement amounts to a strip search. As they acknowledge,
however, the balancing inquiry remains the same regardless
of how one characterizes the search. See Bell v. Wolfish, 441
U.S. 520, 559–60 (1979) (analyzing cavity search by
balancing interests); Stanley v. Henson, 337 F.3d 961, 964
(7th Cir. 2003) (“Whether we . . . label the process a ‘strip
search’ or merely a ‘search’ is unimportant, as the analysis
remains the same.”). Applying that analysis, we recognize the
intrusiveness of the partial disrobing requirement, but find it
only somewhat more invasive than direct observation, which
already requires employees to expose their genitals to some
degree. Because of this, and because the Department has
permissibly found the requirement necessary to detect certain
widely-available prosthetic devices, we conclude that it
represents a reasonable procedure for situations posing such a
15
heightened risk of cheating as to justify direct observation in
the first place.
At oral argument petitioners claimed that no court has
ever upheld suspicionless direct observation testing of non-
incarcerated civilians. Maybe so, but they cite no case
presenting facts similar to those we face here. Given the
combination of the vital importance of transportation safety,
the employees’ participation in a pervasively regulated
industry, their prior violations of the drug regulations, and the
ease of obtaining cheating devices capable of defeating
standard testing procedures, we find the challenged
regulations facially valid under the Fourth Amendment.
We emphasize the limited nature of our holding.
Because petitioners bring a facial challenge, we consider only
“whether the tests contemplated by the regulations can ever
be conducted.” Skinner, 489 U.S. at 632 n.10. We thus
express no view on either the merits of any as-applied
challenge to this rule or the constitutionality of any other rule.
IV.
For the reasons stated above, we deny the petitions for
review.
So ordered.