ELIZABETH H. DOLE, SECRETARY OF TRANSPORTATION, ET AL., APPLICANTS V. RAILWAY LABOR EXECUTIVES' ASSOCIATION, ET AL. No. In the Supreme Court of the United States October Term, 1985 Application to Vacate Order Granting a Stay Pending Appeal to the United States Court of Appeals for the Ninth Circuit. Application to Vacate Order Granting a Stay Pending Appeal to the United States Court of Appeals for the Ninth Circuit. Pursuant to Rules 43 and 44 of the Rules of this Court and 28 U.S.C. 1651(a), the Solicitor General, on behalf of Elizabeth H. Dole, Secretary of Transportation, and John H. Riley, Administrator, Federal Railroad Administration, applies for an order vacating a stay entered by the United States Court of Appeals for the Ninth Circuit pending appeal to that court. The court of appeals' order has enjoined the implementation of a comprehensive nationwide regulatory program designed to prevent railroad accidents and resulting injuries and deaths that are caused by the impairment of railroad employees' abilities due to alcohol and/or drug use. The court's order eliminates the program's deterrent to drug and alcohol use -- and thereby endangers the safety of rail operations -- for at least the next several months, despite the fact that the district court upheld the regulations in all respects. The regulations (50 Fed. Reg. 31508, 31568-31579 (to be codified as 40 C.F.R. Part 219) (Attachment A)) prohibit using, possessing, or being under the influence of alcohol or drugs while on the job, and they require that the train crew be tested for the presence of those substances as soon as possible after a serious accident. The regulations also authorize railroad supervisors to require a breath or urine test of an employee when he is believed to have played a causal role in certain less serious accidents, or has been directly involved in major rule violations, or when there is reasonable cause to believe that he is under the influence of alcohol or drugs. The purpose of the regulations is to detect alcohol and drug abuse among railroad operating employees, to reveal the true extent of the problem, and, most important, to save lives by deterring railroad employees from operating trains while impaired by alcohol or drugs. After extensive rulemaking proceedings and full litigation in the district court, the regulations were scheduled to go into effect on January 6, 1986. The district court granted the government's motion for summary judgment on November 26, 1985. On the afternoon of January 3, 1986, the court of appeals, by a 2-1 vote, entered an order staying the implementation of the regulations pending appeal. STATEMENT 1. The regulations at issue here are the product of an extensive investigation and rulemaking proceeding conducted by the Administrator of the Federal Railroad Administration, who has been delegated by the Secretary of Transportation to implement the federal railroad safety laws. An Advance Notice of Proposed Rulemaking was issued on June 30, 1983 (48 Fed. Reg. 30723), and a Notice of Proposed Rulemaking was issued on June 12, 1984. Five days of public hearings were held across the country on the proposed rule and extensive comments were received and considered. The final rule was promulgated on August 2, 1985, with the proviso that it would become effective on November 1, 1985. The rulemaking proceeding demonstrated that the use of alcohol and other drugs by railroad operating personnel is a serious problem that requires immediate attention. The comments on the proposed regulations indicated general agreement that "alcohol and drug use does occur on the railroads with unacceptable frequency." 50 Fed. Reg. 31514. A 1978 study found that 23% of railroad operating personnel were "problem drinkers" and that 5% of workers got "very drunk" on duty at least once during the study year. Id. at 31515. While the rail industry has long had its own prohibition on use, possession, or being under the influence of alcohol while on duty ("Rule G"), the FRA found that enforcement of Rule G "has been hampered by inadequate means of detection, limited incentives for self-referral, and the reluctance of coworkers to identify the offender. Accordingly, most violations do not come to the attention of management and the intended deterrent effect of the (Rule G) is compromised." Id. at 31527. The FRA found that this problem of drug and alcohol abuse has had significant consequences with respect to safety in the railroad industry. Available data showed that between 1975-1984 there were 48 railroad accidents or incidents /1/ in which it was proven that alcohol or drug use by an employee either played a causal role or materially increased the severity; these events resulted in 37 fatalities, 80 injuries, $20.4 million in railroad property damage, and $13.8 million in environmental clean-up costs. 50 Fed. Reg. 31517. The accidents in which alcohol or drug use was proven tended to be the most severe; for example, 15% of the fatalities occurring from rail accidents during a recent 32-month period resulted from accidents in which alcohol use was proven to be a cause. Id. at 31525. And one alcohol-related derailment in Livingston, Louisiana, in 1982 resulted in a life-threatening release of hazardous materials causing the evacuation of 2,700 people. Id. at 31520, 31525. The FRA believes that these statistics concerning accidents proven to be caused by alcohol and drug abuse greatly understate the problem. These data were obtained primarily from reports required to be submitted by the railroads; in the absence of any contemporaneous substance testing, an accident could be ascribed to alcohol or drug abuse only if the symptoms of such abuse were obvious to the observer. /2/ 2. The regulatory program promulgated by the FRA addresses this problem in several ways. It generally prohibits covered employees (defined in Section 219.5(d), (e)) from using, possessing, or being under the influence of alcohol or drugs while on the job (Subpart B). It establishes a procedure for employees with problems to receive voluntary treatment and counseling without fear of dismissal (Subpart E). And it requires urine testing for drugs of all final applicants for covered positions (Subpart F). The provisions called into question here by the plaintiffs concern testing of employees. Subpart C provides that the railroad must attempt to test (through blood and urine samples) all covered employees involved in serious accidents. These are defined as: (1) a train accident that involves a fatality, a release of hazardous materials that causes an injury or evacuation, or $500,000 in damage; (2) a collision resulting in injury or $50,000 in damage; or (3) a train incident that fatally injures any on-duty railroad employee. The testing is to be performed as soon as possible after the accident at an independent medical facility. An employee cannot be forced to undergo these tests, but, if he refuses, the rule requires the railroad to remove him from his operating job for a period of nine months. Subpart D authorizes -- but does not require -- the railroad to subject an employee to a breath or urine test (but not a blood test) in three circumstances (Section 219.301(b), (c): (1) if a supervisor (or, in the case of a urine test, two supervisors) has a reasonable, articulable suspicion that the employee is under the influence of alcohol or drugs; (2) if the employee is involved in an accident or incident that must be reported to the FRA and the supervisor has reasonable suspicion that the employee's actions contributed to the accident; and (3) if the employee is directly involved in a violation of one of a select few of the railroad's most important operating rules, which are listed in the regulations (Section 219.301(b)(3)). 3. The final regulations were promulgated on August 2, 1985, and scheduled to go into effect on November 1, 1985. On October 28, 1985, a request for reconsideration was denied in substantial part. On October 31, 1985, the plaintiffs, an association of national railway unions and various local unions, brought suit in the United States District Court for the Northern District of California to enjoin the implementation of the regulations on statutory and constitutional grounds. /3/ The court entered a temporary restraining order the next day. Afer a hearing, the district court granted the government's motion for summary judgment on November 26, 1985 (Tr. 59-67; Attachment C). On December 9, 1985, the court dissolved the temporary restraining order and denied the plaintiffs' motion for an injunction pending appeal. Thereafter, the FRA announced a new effective date of January 6, 1986, thereby giving the rail industry some time to prepare anew for implementation and allowing for resolution of plaintiffs' expected motion to enjoin the regulations. 50 Fed. Reg. 50888. On December 16, the plaintiffs applied to the Ninth Circuit for an injunction, and the government filed its opposition on December 19. On January 3, 1986, the last business day before the regulations were scheduled to go into effect, the court of appeals (per Nelson and Reinhardt, JJ.), by a 2-1 vote, issued a one sentence order (Attachment B) granting plaintiffs' "motion for a stay pending appeal," citing to its decision in Lopez v. Heckler, 713 F.2d 1432, 1535, rev'd, 463 U.S. 1328 (Rehnquist, Circuit Justice). /4/ Judge Wiggins dissented. ARGUMENT The court of appeals' extraordinary action of enjoining the implementation of an important, carefully crafted, nationwide regulatory program without giving any basis for such action warrants immediate intervention by this Court. While the Court does not lightly grant relief when a matter is pending before a court of appeals (see Atiyeh v. Capps, 449 U.S. 1312, 1313 (1981) (Rehnquist, Circuit Justice)), it has not hesitated to act when a court of appeals has disturbed the status quo by erroneously enjoining the enforcement of valid regulations. See, e.g., Office of Personnel Management v. AFGE, No. A-5 (July 5, 1985) (Burger, Circuit Justice); Coleman v. PACCAR, Inc., 424 U.S. 1301 (1976) (Rehnquist, Circuit Justice); Morton v. Quaker Action Group, 402 U.S. 926 (1971). The standard for the issuance of such relief was summarized in PACCAR, 424 U.S. at 1304: (A) Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding to issue the stay. This standard is plainly satisfied here. The regulations, which come to the court with a presumption of validity, have already been upheld by the district court, and the court of appeals has given no hint as to where the district court erred. The court of appeals' injunctive action is egregiously erroneous; the balance of harms tips sharply in favor of the immediate implementation of the regulations, and there is little prospect that plaintiffs will prevail on the merits. Moreover, because of the importance of the issue and the fact that a reversal by the court of appeals would place it in direct conflict with the Seventh Circuit's decision in Division 241 Amalgamated Transit Union v. Suscy, 538 F.2d 1264, cert. denied, 429 U.S. 1029 (1976), it is likely that this Court would grant certiorari in the event the plaintiffs prevail on their appeal. While the plaintiffs' appeal is pending, the court of appeals' unjustified order exposes the public to a significant additional risk of death and injury from rail accidents caused by employees under the influence of alcohol or drugs. In these circumstances, the Court should vacate that order, which will remain in force for at least several months unless this Court acts. /5/ 1. It is manifest that the balance of harms weighs strongly in favor of immediate implementation of the regulations and that for that reason alone the court of appeals erred in enjoining them. The most severe injury that could conceivably occur to plaintiffs if the regulations are permitted to go into effect is that some employees could be induced to submit to a blood test that they would have been entitled to avoid if it is ultimately held that the regulations violate the Fourth Amendment. While we do not dispute that the drawing of blood may reasonably be viewed as a mildly unpleasant experience that a person would prefer to avoid, this Court has recognized that "(s)uch tests are a commonplace in these days of periodic physical examinations * * * and that for most people the procedure involves virtually no risk, trauma, or pain." Schmerber v. California, 384 U.S. 757, 771 (1966). In short, the possibility of having to undergo an unnecessary blood test is a thin thread on which to hand a decision enjoining implementation of an important, nationwide safety regulatory program. Moreover, the number of employees subject to this testing would be relatively few because only employees involved in the serious accidents identified in Subpart C (estimated at 150-200 per year (50 Fed. Reg. 32543)) would be affected. And even these employees would not be forced to undergo the tests, although they would be subject to disciplinary action if they refused. The "authorized testing" of Subpart D would result in even less injury. The breath and urine tests authorized under that Subpart are not invasive at all and cannot be characterized as anything more than the most minimal of intrusions. And, again, the only employees tested would be those whose job performance -- judging from their direct involvement in the incidents specified in the regulation -- has given rise to questions about their fitness or those reasonably suspected of being under the influence of alcohol or drugs. On the other hand, the important government and public interest in allowing the regulations to go into effect immediately is compelling. An extensive administrative investigation has revealed that numerous rail accidents and fatalities have been caused by alcohol or drug use by operating personnel. Implementation of the regulations will help identify employees who might contribute to such accidents in the future and, more generally, create a strong deterrent to the use of alcohol or drugs on the job that will significantly enhance railroad safety without subjecting anyone to tests. In a very real sense, the order entered by the court of appeals may yield death and destruction in the railroad industry that could be avoided if the order is vacated. The court of appeals gave no clue as to how it balanced the hardships here. We submit, however, that there is no rational justification for treating the possibility of a blood or urine test -- performed under strict safeguards and only in certain specified situations -- as outweighing the possibility of death or injury due to the malfeasance of a railroad employee working while under the influence of alcohol or drugs. 2. In our view, the tremendous imbalance between the serious irreparable harm done to the public interest in rail safety by the court of appeals' order on the one hand and the extremely limited effect on the plaintiffs of allowing the regulations to go into effect on the other is alone sufficient to warrant vacating the court's order. In addition, however, the court's order cannot be supported by reference to the other relevant factor for issuing a stay or an injunction. There is little likelihood that the plaintiffs will prevail on the merits of their appeal. A testing program essentially indistinguishable from this one was upheld by the Seventh Circuit in Division 241 Amalgamated Transit Union v. Suscy, supra. There, the Chicago Transit Authority had instituted a program under which bus and train operators were required to submit to blood and urine tests when they were involved in a serious accident or when two supervisors suspected them of being under the influence of liquor or drugs. The court of appeals found that this program was "reasonable" within the meaning of the Fourth Amendment because the affected public interest in the safety of mass transit outweighed any infringement on individual interests occasioned by the testing. 538 F.2d at 1267. This conclusion is clearly correct. The touchstone of the Fourth Amendment is "reasonableness." Whether a particular search or seizure is reasonable is assessed by "balanc(ing) the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." United States v. Place, 462 U.S. 696, 703 (1983). Here, the intrusion on the individual's interests is minimal; the most severe intrusion possible is a "safe, painless, and commonplace" (South Dakota v. Neville, 459 U.S. 553, 562 (1983)) blood test, and even that may occur only when the employee has been involved in a serious accident involving loss of life or major property damage. On the other hand, the intrusion is justified by a paramount government and public interest in rail safety. The regulations are narrowly drawn to deal effectively with a recognized safety problem that has been proven to have led to 37 fatalities in recent years and is suspected of causing more. It is surely reasonable for employees who work in an industry as imbued with public safety concerns as the rail industry to be expected to submit to a blood test when they have been involved in a serious accident. In their papers in the court of appeals the plaintiffs sought to avoid the manifest reasonableness of the regulations by arguing that, under the Fourth Amendment, testing for alcohol and drugs is inherently unreasonable in the absence of probable cause and a warrant. It is true, of course, that certain types of searches normally require probable cause to suspect criminal activity and a warrant, notably the traditional search for evidence of a crime where a suspect is singled out for investigation. We do not dispute that traditional probable cause is required when a blood test is taken in this individualized criminal investigation context. See Schmerber v. California, supra. But it is equally true that the warrant and probable cause requirements do not apply to every intrusion that is covered by the Fourth Amendment. This point was cogently explained by this Court in Delaware v. Prouse, 440 U.S. 648, 653-655 (1979) (footnotes omitted): The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of "reasonableness" upon the exercise of discretion by government officials, including law enforcement agents, in order "'to safeguard the privacy and security of individuals against arbitrary invasions. . . .'" Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978), quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967). Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against "an objective standard," whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon "some quantum of individualized suspicion," other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not "subject to the discretion of the official in the field," * * *. It is clearly inappropriate to require individualized probable cause and a warrant to conduct the testing involved here, and the regulations contain more than adequate safeguards to assure that employees' privacy is protected "against arbitrary invasions" and that employees are not subject to testing "at the unbridled discretion of * * * (the responsible) officials." Delaware v. Prouse, 440 U.S. at 654, 661. The post-accident testing mandated by the regulations (Subpart C) is not a search for evidence based on an individualized suspicion. Rather, it is part of a regulatory program designed to promote safety in the railroad industry, which is heavily regulated in the public interest. Such an administrative search, while subject to the Fourth Amendment, is not governed by the traditional probable cause standard applicable to the singling out of individuals for a search for evidence; rather, it is governed by the "administrative probable cause" standard described in Marshall v. Barlow's, supra, and Camara v, Municipal Court, supra. /6/ If the government interest involved reasonably justifies the degree of intrusion (as discussed above), then such an administrative search is permissible "on a showing that 'reasonable legislative or administrative standards for conducting an . . . inspection are satisfied with respect to a particular (establishment).'" Barlow's, 436 U.S. at 320 (quoting Camara, 387 U.S. at 538). Here, the regulations specify in detail the circumstances under which the tests must be conducted -- a defined class of serious accidents -- and it cannot seriously be suggested that these circumstances are not reasonable ones in which to require testing. Clearly, the tests satisfy the standards for administrative searches. /7/ There is absolutely no merit to plaintiffs' suggestion that the testing contemplated by the regulations requires a warrant. Even if probable cause in the criminal law sense were required, it is clear that, because the evidence of alcohol or drugs in the blood quickly dissipates, exigent circumstances exist in this context that make obtaining a warrant not feasible. See Schmerber v. California, 384 U.S. at 770-771. In any event, there is no need here for a magistrate to assess whether a particular test is part of a "neutral * * * administrative plan" of inspection (Barlow's, 436 U.S. at 321); the criteria for identifying the class of employees to be tested are published in the regulations and they are indisputably neutral. See generally United States v. Martinez-Fuerte, 428 U.S. 543, 564-566 (1976). Moreover, no employee is forced to submit to testing, although employees are subject to disciplinary action for refusing to do so. And, of course, employees are exposed to the possibility of testing only if they work in the railroad industry. When an employee chooses to work in a job that so greatly implicates the public safety, it is not unreasonable for him to accept, as a condition of that employment, the possibility that he will be required to submit to a blood test in the event he is involved in a serious accident. /8/ The regulations (Section 219.11) explicitly put an employee on notice that his remaining in such employment is an implied consent to that limited intrusion. Requiring such a consent is a valid regulatory requirement analogous to requiring a motorist to consent to a blood test in appropriate cases as a condition of operating his motor vehicle (see, e.g., South Dakota v. Neville, 459 U.S. at 559; Mackey v. Montrym, 443 U.S. 1, 3-4 (1979)) or requiring an airlines passenger to submit to a search as a condition of boarding a plane (United States v. Davis, 482 F.2d 893, 912-913 (9th Cir. 1973)). See also Wyman v. James, 400 U.S. 309 (1971) (receipt of welfare benefits may be conditioned on consent to home visit). The Fourth Amendment challenge to the "authorized testing" provisions contained in Subpart D is even weaker than the challenge to the mandatory testing. /9/ The intrusion involved in these tests (urine and breath) is truly minimal. No test can be required at all absent specific observations or performance failures that rationally raise questions about the sobriety of the employee or the safety of his performance. See Section 219.301. This scheme clearly satisfies Fourth Amendment standards. The validity of the testing based on performance failures identified in the regulations, viz., a major rule violation or the employee's contributing role in an accident, follows a fortiori from the validity of the more severe intrusion of a blood test upon the occurrence of a specified event (see pages 11-14, supra). The other type of authorized testing, viz., that based on a reasonable suspicion that an employee is presently under the influence of drugs or alcohol, is also reasonable under the Fourth Amendment because of its negligible intrusiveness; breath or urine tests are equivalent to the sorts of intrusions that this Court has recognized can reasonably by required on the basis of articulable suspicion that falls short of probable cause. See, e.g., New Jersey, v. T.L.O., No. 83-712 (Jan. 15, 1985), slip op. 14; Terry v. Ohio, 392 U.S. 1 (1968). /10/ In sum, the regulatory program involved here is a measured response to an important safety problem that plainly satisfies the reasonableness test of the Fourth Amendment. The court of appeals manifestly erred in enjoining it. CONCLUSION The "stay" issued by the court of appeals should be vacated. Respectfully submitted. CHARLES FRIED Solicitor General JANUARY 1986 /1/ For FRA reporting purposes, a train "accident" is an event involving on-track equipment that results in railroad property damage in excess of a periodically updated monetary threshold (currently $4,900). A train "incident" is an event involving the movement of on-track equipment that results in death, a reportable injury, or a reportable illness, but in which railroad property damage does not exceed the reporting threshold for train accidents. See 49 C.F.R. 225. We will use the term "accident" generally to refer to both types of events. /2/ The Southern Pacific Railroad began its own program of drug and alcohol testing and has reported that accidents and injuries attributable to human error dropped by 70% in the year that the testing was begun. The FRA did not rely on these figures because it had not yet had the opportunity to examine the specific procedures followed by the railroad or the manner in which the data were analyzed. 50 Fed. Reg. 31514. /3/ The plaintiffs' primary claim was that the regulations violate the Fourth Amendment. They also claimed a due process violation and that the regulations violate various statutes. These latter claims were summarily dismissed by the district court as without "much merit" (Tr. 61) and were not addressed by plaintiffs in their papers in the court of appeals. /4/ The court misused the term "stay" in its order. Because the district court had ruled in favor of the government there was no order for the court to stay; what it did in effect was to enter an injunction against the implementation of the regulations, which is in fact the relief that the plaintiffs sought. Had the district court entered such an order it would have been required to issue detailed findings under Fed. R. Civ. P. 65. The court of appeals, however, gave no clue as to the basis for its ruling. It also appears that the court of appeals has enjoined every part of the new regulatory program from going into effect even though the plaintiffs' Fourth Amendment objection goes to the validity only of Subparts C and D. /5/ The court of appeals' order states that the appeal is to be "expedited," but it then provides for the ordinary briefing schedule contained in Fed. R. App. P. 31(a). Thus, it will be three months before the case can even be set for oral argument. And it may be many months more until the court of appeals renders its decision. /6/ Even in the criminal law context, when an individual is not singled out for suspicion but instead is searched or seized as part of a group, the absence of individual stigma suggests that there is less reason to require the strict criminal probable cause standard. See Delaware v. Prouse, 440 U.S. at 663 & n.26; United States v. Martinez-Fuerte, 428 U.S. 543, 559 (1976). /7/ The plaintiffs argued below that the administrative search rationale could not apply here because there is no explicit congressional authorization and because it does not apply to searches of persons. There is no support for these supposed limitations on administrative searches; indeed, each is inconsistent with established Ninth Circuit precedent. See Balelo v. Baldrige, 724 F.2d 753, 764-765, cert. denied, No. 83-1734 (June 18, 1984) (en banc) (upholding regulation requiring porpoise fishermen to allow government observers on boat); United States v. Davis, 482 F.2d 893, 910-913 (1973) (pre-boarding search of airline passengers). /8/ Since 1927, the Federal Aviation Administration has required pilots and other flight crew members to undergo periodic physical examinations, which may include blood tests. See 14 C.F.R. Parts 61, 63, and 67. The Federal Highway Administration also requires physical examinations for drivers employed by motor carriers. 49 C.F.R. Part 391. There is no significant difference for Fourth Amendment purposes between regularly scheduled fitness examinations and examinations triggered by neutral criteria relating to the occurrence of specific events that reasonably call into question the fitness of involved employees. /9/ The contention that the Fourth Amendment applies at all to the authorized testing turns on the district court's finding that this testing is "state action" because it is specifically authorized by the regulations. This conclusion is questionable. The rulemaking proceeding explains that the authorized testing provision was included because of concern that the Railway Labor Act would be read to prevent the railroads from imposing such testing unilaterally. See 50 C.F.R. 31528, 31546, 31552. The testing nonetheless is not required by the government, and the employer is free to use or not to use Subpart D authority. The government has merely opened the door to allow such testing. If the employer does choose to test an individual employee under the authority conferred by this section, the test occurs only by private choice and is not governmental action covered by the Fourth Amendment. See, e.g., Blum v. Yaretsky, 457 U.S. 991 (1982); Flagg Bros. v. Brooks, 436 U.S. 149, 164-166 (1978). /10/ The reasonableness of the regulations in this regard is exemplified by the additional safeguard that urine tests cannot be required on the basis of reasonable suspicion unless two supervisors concur that the employee appears to be under the influence of alcohol or drugs. See Section 219.301(c)(2).