Lanier v. City of Woodburn

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JANET LYNN LANIER, 
Plaintiff-Appellee,
v. No. 06-35262
CITY OF WOODBURN,
Defendant-Appellant,  D.C. No.
CV-04-01865-KI
and OPINION
LINDA SPRAUER,
Defendant.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding

Argued and Submitted
February 6, 2008—Portland, Oregon

Filed March 13, 2008

Before: Pamela Ann Rymer and Richard A. Paez,
Circuit Judges, and Cormac J. Carney,* District Judge.

Opinion by Judge Rymer

*The Honorable Cormac J. Carney, United States District Judge for the
Central District of California, sitting by designation.

2445
2448 LANIER v. CITY OF WOODBURN

COUNSEL

Marjorie A. Speirs and Janet M. Schroer, Hoffman, Hart &
Wagner, LLP, Portland, Oregon, for the defendant-appellant.

Steven M. Wilker and Paul W. Conable, Tonkon Torp, LLP,
Portland, Oregon, for the plaintiff-appellee.

OPINION

RYMER, Circuit Judge:

This appeal requires us to decide whether the City of
Woodburn’s policy requiring candidates of choice for city
positions to pass a pre-employment drug test as a condition of
the job offer is constitutional, facially or as applied to Janet
Lynn Lanier, the preferred applicant for a part-time position
as a page at the Woodburn Library. The district court held that
it was not. We agree that Woodburn’s policy is unconstitu-
tional as applied because the City failed to demonstrate a spe-
cial need to screen a prospective page for drugs, and affirm
on this basis. By the same token, Lanier did not show that the
policy could never be constitutionally applied to any City
 LANIER v. CITY OF WOODBURN 2449
position. We reverse the district court’s order to the extent it
implies otherwise, and remand for its declaratory judgment to
be clarified so that it is consistent with our holding.

I

In February of 2004, Lanier applied to be a page at Wood-
burn’s public library. Pages perform tasks such as retrieving
books from the book drop and returning them to the shelves.
Occasionally, they may staff the desk in the youth services
area, where materials for children and teenagers are housed.
Woodburn gave Lanier a conditional offer of employment,
subject to successful completion of a background check and
pre-employment drug and alcohol screening.

Woodburn’s Personnel Policies and Procedures Manual has
provided for pre-employment drug and alcohol tests since
2002. It provides:

Drug and Alcohol Tests: As a drug-free workplace
(see Section 11.171), The City of Woodburn requires
a pre-employment drug and alcohol screen for all
prospective applicants. The candidate of choice for
a City position must successfully pass the drug and
1
Section 11.17 states:
The City of Woodburn considers its employees to be its most
valuable asset, and is concerned about their safety, health, and
well-being. In keeping with this commitment, the City of Wood-
burn has a strict policy regarding the inappropriate use and pos-
session of drugs and alcohol. Substance abuse can impair
employee performance and general physical and mental health,
and may jeopardize the safety of co-workers and the general pub-
lic.
Among other things, it prohibits use of a controlled substance on city
property or during work hours. It allows testing where the City has reason-
able suspicion that an employee is under the influence, and searching
where the City reasonably suspects that controlled substances may be
found.
2450 LANIER v. CITY OF WOODBURN
alcohol screen as a condition of the job offer. The
confirmed presence of any illegal drug or alcohol in
a urine sample will be cause for disqualifying an
applicant.

Id., § 11.14.B.(2). According to Woodburn, this policy was
adopted because some department heads, based on their expe-
rience with employees who had been under the influence at
work, believed that the use of drugs or alcohol had a negative
impact on job performance and thought that all prospective
employees should be subject to screening to deter such use.
In addition, the Manual provides for an “extensive” pre-
employment investigation of an applicant’s employment and
criminal history for positions identified as “security sensi-
tive.” Manual, § 11.14.B.(1). “Security sensitive” positions
include “[a]ny position that is responsible for the supervision
or control of juveniles (all positions in the Recreation and
Parks Department Pool and Recreation Divisions and in the
Library).” Id., Appendix B.

Lanier wanted to accept the page position she was condi-
tionally offered, but declined to be tested. Woodburn
rescinded the offer. Lanier then brought this action, alleging
violation of her rights under the Fourth Amendment to the
United States Constitution and under Article I, Section 9 of
the Oregon Constitution.2

The district court granted qualified immunity to the Library
Director (a ruling that is not on appeal), and summary judg-
ment in favor of Lanier. It also entered a declaratory judgment
which states that the City’s policy is unconstitutional “to the
extent the policy is warrantless, suspicionless, and is unsup-
ported by a special need that outweighs reasonable expecta-
tions of privacy.” This timely appeal followed.
2
The parties agree that these provisions are co-extensive for purposes of
the issues on appeal.
 LANIER v. CITY OF WOODBURN 2451
II

[1] There is no question that Woodburn’s drug screening
policy effects a search within the meaning of the Fourth
Amendment. Chandler v. Miller, 520 U.S. 305, 322 (1997).
No material facts are in dispute. Accordingly, we must deter-
mine whether, as a matter of law, the policy “fit[s] within the
closely guarded category of constitutionally permissible
suspicionless searches.” Id. at 309.

A

Woodburn maintains at the outset that Lanier conceded
away her facial challenge. The City bases this on a colloquy
between Lanier’s counsel and the district court about the form
of declaratory relief. During the colloquy, Lanier’s counsel
stated that he did not believe the court’s summary judgment
opinion “foreclosed the possibility that there could be posi-
tions for which there would be an application that would be
constitutional under the Supreme Court’s jurisprudence,” and
requested a judgment declaring the policy unconstitutional as
applied to Lanier “to the extent” there was a need for the
declaratory judgment to be tailored for the position she was
offered. However, we do not take this as a concession with
respect to facial validity. As we read the exchange, counsel’s
statement had to do with his view of the court’s ruling, not of
the City’s policy.

[2] On the merits of the facial challenge, Lanier argues that
there is no set of circumstances under which the City’s policy
would be constitutional as applied to every applicant for all
jobs. She relies on Baron v. City of Hollywood, 93 F.Supp.2d
1337 (S.D. Fla. 2000), which applies this standard to a similar
municipal policy. However, the test prescribed by the United
States Supreme Court requires a party asserting a facial chal-
lenge to show that “no set of circumstances exists under
which the [policy] would be valid.” United States v. Salerno,
481 U.S. 739, 745 (1987); see also S.D. Myers, Inc. v. City
2452 LANIER v. CITY OF WOODBURN
and County of San Francisco, 253 F.3d 461, 467-68 (9th Cir.
2001). Thus, a policy of general applicability is facially valid
unless it can never be applied in a constitutional manner. Cf.
Int’l Bhd. of Teamsters v. Dep’t of Transp., 932 F.2d 1292,
1303 (9th Cir. 1991) (noting that we “decide only the narrow
question of whether these drug tests ‘can ever be conducted’
without offending the fourth amendment.”) (emphasis in orig-
inal). Lanier’s version would turn Salerno on its head, which
we decline to do. As Lanier makes no serious Salerno argu-
ment, and suggests no concrete reason why Woodburn’s pol-
icy could not constitutionally be applied to jobs that, for
example, require the operation of dangerous equipment, see
Int’l Bhd. of Teamsters, 932 F.2d at 1303, we cannot say that
the policy is invalid on its face.

B

Woodburn posits that it has a substantial and important
interest in screening library pages for three reasons: drug
abuse is one of the most serious problems confronting society
today, drug use has an adverse impact on job performance,
and children must be protected from those who use drugs or
could influence children to use them. No doubt these prob-
lems are worthy of concern, but there is scant, if any, indica-
tion that on account of them, the City has “special needs” of
sufficient weight to justify an exception to the Fourth Amend-
ment’s requirement of individualized suspicion. Chandler,
520 U.S. at 314; Skinner v. Ry. Labor Executives’ Ass’n, 489
U.S. 602, 617, 619 (1989).

[3] Chandler makes clear that the need for suspicionless
testing must be far more specific and substantial than the gen-
eralized existence of a societal problem of the sort that Wood-
burn has posited. In Chandler, the State of Georgia sought to
subject candidates for public office to suspicionless testing to
show its commitment to the war against drugs. Like Wood-
burn, Georgia asserted no evidence of a drug problem among
the targeted population, and the officials who were required
 LANIER v. CITY OF WOODBURN 2453
to pass a drug test were neither involved in interdiction, nor
did they typically perform “high-risk, safety-sensitive tasks.”
Chandler, 520 U.S. at 321-22. It follows here, as in Chandler,
that “[t]he need revealed, in short, is symbolic, not ‘special,’
as that term draws meaning from our case law.” Id. at 322.

[4] While a demonstrated problem of drug abuse might
“shore up” an assertion of special need, id. at 379, Wood-
burn’s showing of an impact on job performance consists of
unspecified difficulty with employees under the influence
experienced by a few department heads over the years, and
one library employee in twenty-three years who had to
undergo rehabilitation on a couple of occasions. Again as in
Chandler, “[n]otably lacking in [the City’s] presentation is
any indication of a concrete danger demanding departure from
the Fourth Amendment’s main rule.” Id. at 318-19.

[5] Finally, the City has an obvious interest in protecting
children, yet the link that Woodburn identifies between that
interest and a position as part-time library page is tenuous at
best. A page may staff a youth services desk for an hour or
so when needed, and children may be in the library unat-
tended, but there is no indication that the library has any in
loco parentis responsibility for those children, that children’s
safety and security is entrusted to a page, or that a page is in
a position to exert influence over children by virtue of contin-
uous interaction or supervision. For these reasons, Wood-
burn’s reliance on Knox County Educ. Ass’n v. Knox County
Bd. of Educ., 158 F.3d 361 (6th Cir. 1998), is misplaced. In
Knox, the Court of Appeals for the Sixth Circuit upheld Knox
County’s program of conducting suspicionless drug testing of
teachers and administrators because of the unique role that
teachers play in the lives of school children; the in loco
parentis obligations imposed upon them; and the fact that by
statute, teachers in Tennessee were charged with securing
order such that they were “on the ‘frontline’ of school secur-
ity, including drug interdiction.” Id. at 375. It is evident (at
least on this record) that a part-time page, who could be a
2454 LANIER v. CITY OF WOODBURN
high school student herself, has no such role in the City of
Woodburn.

[6] Woodburn submits that all library positions are “safety-
sensitive” because Appendix B to its Policy and Procedures
Manual says so. However, the Manual does not define
“safety-sensitive,” nor is there any evidence that, regardless of
how conceived, a page position is safety-sensitive. As we
have explained, it does not appear to be in the same sense
that, for instance, a teaching position was thought to be
safety-sensitive in Knox County. Nor does anything in the
record suggest that the job of a library page in the City of
Woodburn is comparable to jobs where courts have allowed
testing on account of safety sensitivity. Jobs are considered
safety-sensitive if they involve work that may pose a great
danger to the public, such as the operation of railway cars, Ry.
Labor, 489 U.S. at 628-29; the armed interdiction of illegal
drugs, Nat’l Treasury Employees Union v. Von Raab, 489
U.S. 656, 677-78 (1989); work in a nuclear power facility,
IBEW, Local 1245 v. United States NRC, 966 F.2d 521, 525-
26 (9th Cir. 1992); work involving matters of national secur-
ity, AFGE Local 1533 v. Cheney, 944 F.2d 503, 506 (9th Cir.
1991); work involving the operation of natural gas and liqui-
fied natural gas pipelines, IBEW, Local 1245 v. Skinner, 913
F.2d 1454, 1461-63 (9th Cir. 1990); work in the aviation
industry, Bluestein v. Skinner, 908 F.2d 451, 456 (9th Cir.
1990); and work involving the operation of dangerous instru-
mentalities, such as trucks that weigh more than 26,000
pounds, that are used to transport hazardous materials, or that
carry more than fourteen passengers at a time, Int’l Bhd. of
Teamsters, 932 F.2d at 1295. The work of a page, so far as
the record discloses, entails nothing of this order of magni-
tude.

[7] We conclude that Woodburn has not articulated any
special need to screen Lanier without suspicion. This is the
“core issue.” Chandler, 520 U.S. at 317-18. Beyond it, we
discern no substantial risk to public safety posed by Lanier’s
 LANIER v. CITY OF WOODBURN 2455
prospective position as a part-time library page. Conse-
quently, we need not pause over the City’s remaining points
— that invasion of Lanier’s privacy interests is slight given
the minimally intrusive form of testing, that the testing would
have occurred pre-employment, and that she was in any event
subject to an extensive background check which further
diminished any expectation of privacy she may reasonably
have had. We express no opinion as to the weight of these
considerations, if any, in a different case.

III

[8] Woodburn submits that the declaratory judgment cannot
stand even if we affirm the district court’s decision by holding
that the City’s policy is unconstitutional as applied. We agree.
The declaration is unclear: It seems merely to reiterate the
Fourth Amendment standard for Chandler searches rather
than to declare either that Woodburn’s drug screening policy
is unconstitutional as applied to Lanier, or that the policy is
facially unconstitutional. We have held that there is no basis
in this case for concluding that the City’s policy is facially
invalid, so the declaratory judgment goes too far to the extent
that it is susceptible to this interpretation. Therefore, we
vacate the judgment, and remand so that the district court may
enter a new judgment declaring only that Woodburn’s policy
is unconstitutional as applied to Lanier.

AFFIRMED IN PART; REVERSED, VACATED AND
REMANDED IN PART.