                                                                  F I L E D
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                                       PUBLISH
                                                                  SEP 22 1998
                    UNITED STATES COURT OF APPEALS
                                                                PATRICK FISHER
                                                                      Clerk
                                  TENTH CIRCUIT



19 SOLID WASTE DEPARTMENT
MECHANICS, SAM AGUILAR, RUDY
ARCHULETA, JR., EDWARD BACA,
PAUL BARBOA, M.E. BARRERAS,
GARY L. CHAVEZ, JOHNNY
CHAVEZ, ANTHONY DEMELLO,
MICHAEL GUTIERREZ, JIMMY
HERRERA, BILL LIPITZ, JOHN
LUJAN, FRANK ORTEGA, AARON
ROMERO, DONALD SCOTT, FRANK
SERNA, ARTURO TORRES, JR.,
JAMES VIGIL, and RORY WESSEL,

             Plaintiffs - Appellees,
                                                  No. 96-2177
      v.

CITY OF ALBUQUERQUE; LOUIS E.
SAAVEDRA, Mayor, individually and in
his official capacity; ARTHUR
BLUMENFELD, Ph.D., Chief
Administrative Officer, individually and
in his official capacity; LAWRENCE
RAEL, Assistant Chief Administrative
Officer, individually and in his official
capacity; DAVID CAMPBELL, City
Attorney and Chairman of the Substance
Abuse Task Force, individually and in his
official capacity,

             Defendants - Appellants.
            APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW MEXICO
                        (D. Ct. No. CIV-93-1385-JP)



Charles W. Kolberg, Assistant City Attorney, City of Albuquerque, Albuquerque, New
Mexico, appearing for Defendants-Appellants.

Paul S. Livingston, Albuquerque, New Mexico, appearing for Plaintiffs-Appellees.



Before TACHA, BRORBY, and BRISCOE, Circuit Judges.



TACHA, Circuit Judge.



       Plaintiffs are nineteen Solid Waste Department mechanics who originally filed suit

in 1993 to challenge the constitutionality of the drug- and alcohol-testing policy of the

City of Albuquerque as it was applied to them. The mechanics challenged the policy on

several grounds. Germane to this appeal is the mechanics’ assertion that the policy

violated their right to be free from unreasonable searches as guaranteed by the Fourth

Amendment.

                                       BACKGROUND

       The mechanics’ primary job responsibility is the repair of the City’s fleet of large

diesel trash trucks. Their work includes repairs to the brakes, steering, front end,

hydraulics, and electrical systems of the trucks. They perform their work in an industrial

                                             -2-
repair shop where large machines and replacement parts are mechanically lifted for

repairs. They work under general supervision, and usually their work is not inspected by

others before a repaired truck is returned to service. The mechanics are not authorized to

drive City vehicles on the streets or highways.

       The drug-testing policy under consideration here was initially set forth in 1991.

The policy required employees with jobs requiring a commercial driver’s license (CDL)

to submit to and pass a substance abuse test before they could obtain or renew a CDL. In

1992, the City placed Mechanics III, a classification that includes the Solid Waste

Department mechanics, on a list of job categories for which a CDL (and therefore a

substance abuse test) was required. The policy also stated that no employee could operate

or drive City vehicles or equipment that require a CDL without a current City

vehicle/equipment operator’s permit. Obtaining a permit, like a CDL, required that the

applicant undergo a substance abuse test.

       Both the plaintiffs and defendants moved for summary judgment on Fourth

Amendment grounds. The district court entered judgment for the plaintiffs and struck

down the City policy, concluding “that while the city has valid public interests in

establishing a drug enforcement program, those interests do not outweigh the interference

with individual liberty that results from requiring this particular class of employees—non-

driving, solid waste mechanics—to undergo warrantless drug tests.” 19 Solid Waste

Dep’t Mechanics v. City of Albuquerque, CIV No. 93-1385, slip op. at 11 (D.N.M. Oct.


                                            -3-
11, 1994). In reaching this conclusion, the court examined in some detail the City’s

assertion that it instituted the drug testing policy because of concerns for workplace and

public safety and employee health. The district court evaluated the City’s proffered safety

and health reasons and determined that they were not “compelling” enough under

Supreme Court precedent to justify warrantless and suspicionless drug tests.

Following the district court’s decision, the City repealed the drug-testing policy.

Subsequently, the district court awarded $2,700 in damages to the mechanics. The City

now appeals that damage award by attacking the correctness of the district court’s

decision on the merits. The City argues the district court erred in granting the plaintiffs’

motion for summary judgment by misapplying the balancing test that governs the

constitutionality of urinalysis drug tests under the Fourth Amendment. The City asserts

that a proper application of that balancing test should have led the district court to grant

the City’s motion for summary judgment. We affirm the decision of the district court.

                                        DISCUSSION

       We first address the mechanics’ assertion that the case should be dismissed as

moot. After the district court granted summary judgment to the mechanics, the City

revoked the drug-testing policy at issue. The district court, however, awarded the

mechanics $2,700 in damages, and, at the time of oral argument, the plaintiffs also had a

motion for attorney’s fees pending in the district court. In order for the City to contest its

liability for the damage award or for any attorney’s fees, it must challenge the merits of


                                             -4-
the underlying decision. Thus, the City’s liability for damages and attorney’s fees as a

result of the judgment against it “saves this cause from the bar of mootness.” Memphis

Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8 (1978).

       We review a district court’s grant or denial of summary judgment de novo. See

Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir. 1995). Summary judgment is

appropriate if the record shows that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law. See id.; Fed. R. Civ. P.

56(c). The moving party is entitled to summary judgment “[w]here the record taken as a

whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,587 (1986). When applying this

standard, we examine the record and reasonable inferences drawn therefrom in the light

most favorable to the non-moving party. See Kaul v. Stephan, 83 F.3d 1208, 1212 (10th

Cir. 1996).

       When a government employer requires its employees to submit to a urinalysis test

for the purpose of detecting illegal drug use, the test is a search subject to the Fourth

Amendment and must be reasonable. See Benavidez v. City of Albuquerque, 101 F.3d

620, 623-24 (10th Cir. 1996). Ordinarily, a search must be based on individualized

suspicion of wrongdoing to be considered reasonable. See id. at 624. In some cases,

however, where governmental concerns other than crime detection are at issue, the

Supreme Court has allowed the government to require drug-testing even in the absence of


                                              -5-
individualized suspicion. Three Supreme Court cases are illustrative. In Skinner v.

Railway Labor Executives’ Assoc., 489 U.S. 602 (1989), the Court upheld the

constitutionality of federal regulations that require railroads to test employees involved in

train accidents for drug use and allow railroads to test employees who violate certain

safety rules. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989),

decided the same day as Skinner, upheld the testing of Customs Service employees

applying for positions involving interdiction of illegal drugs or requiring them to carry

firearms. In Vernonia School District 47J v. Acton, 515 U.S. 646 (1995), the Court

upheld the suspicionless urine testing of junior and senior high school student-athletes.

       In each of the above Supreme Court cases, in evaluating the constitutionality of the

respective testing programs, the Court balanced the intrusion on individuals’ privacy

interests against the promotion of legitimate governmental interests. See, e.g., Vernonia

Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995). Under that balancing equation, on

one side, the Court examines the nature of the privacy interest upon which the search at

issue intrudes and the character of the intrusion that is complained of. See Acton, 515

U.S. at 654, 658. On the other side of the balancing, the Court “consider[s] the nature

and immediacy of the governmental concern at issue . . . and the efficacy of [the

challenged test] for meeting it.” Id. at 660.

       In Chandler v. Miller, 117 S. Ct. 1295 (1997), the Supreme Court’s most recent

drug-testing case, the Court added a step to the analysis it had followed in Skinner, Von


                                                -6-
Raab, and Acton. See Todd v. Rush County Schools, 139 F.3d 571, 572 (7th Cir. 1998)

(Ripple, J., dissenting from denial of rehearing en banc). Prior to conducting the

balancing, in surveying the public interests at issue, the Court said that we must

specifically inquire into whether the drug-testing program at issue is warranted by a

“special need.” See Chandler, 117 S. Ct. at 1303. Only if we can say that the

government has made that special need showing do we then inquire into the relative

strengths of the competing private and public interests to settle whether the testing

requirement is reasonable under the Fourth Amendment. If the government has not made

its special need showing, then the inquiry is complete, and the testing program must be

struck down as unconstitutional. Thus, the first, and ultimately decisive, question for this

appeal is whether the City of Albuquerque’s drug testing program is warranted by a

special need.

       We turn to the details of Chandler to understand what the government’s special

need showing requires. Chandler involved a Georgia requirement that candidates vying

for designated state offices certify that they have taken a drug test and that the test result

was negative. See id. at 1298. Each candidate was required to present the certificate

within 30 days before qualifying for nomination or election. In arguing that the statute

was constitutional, the State asserted that the certification requirement was justified

“because the use of illegal drugs draws into question an official’s judgment and integrity;

jeopardizes the discharge of public functions, including antidrug law enforcement efforts;


                                              -7-
and undermines public confidence and trust in elected officials.” Id. The Supreme Court

rejected the State’s arguments, stating that “[n]othing in the record hints that the hazards

respondents broadly describe are real and not simply hypothetical for Georgia’s polity.”

Id. at 1303. The Court concluded that the State had not shown that the certification

requirement was warranted by a special need. See id.

       In reaching this conclusion, the Court identified how the government may

demonstrate a special need for a suspicionless drug testing scheme. See id. 1301-04.

Based on a detailed review of its decisions in Skinner, Von Raab, and Acton, the

Chandler Court identified two general characteristics that we must now examine in the

first instance, before any balancing occurs. First, the Court examined whether the

proffered governmental concerns were “real” by asking whether the testing program was

adopted in response to a documented drug abuse problem or whether drug abuse among

the target group would pose a serious danger to the public. See id. at 1303. In Skinner,

the record showed a “documented link between drug- and alcohol-impaired employees

and the incidence of train accidents.” Id. at 1301 (citing Skinner, 489 U.S. at 607-08). In

Acton, there was evidence of an epidemic of drug use among students and related

disciplinary problems in the schools. See Acton, 515 U.S. at 648-49, 662-63. In Von

Raab, where the testing regime was upheld despite the absence of a demonstrated drug

problem, the Court noted that the case must be read in the unique context of federal

workers whose primary task is drug interdiction. See Von Raab, 489 U.S. at 660. In


                                             -8-
harmonizing these cases, the Chandler Court said that “[a] demonstrated problem of drug

abuse, while not in all cases necessary to the validity of a testing regime, would shore up

an assertion of special need for a suspicionless general search program. Proof of

unlawful drug use may help to clarify—and to substantiate—the precise hazards posed by

such use.” Chandler, 117 S. Ct. at 1303.

       Second, the Court examined whether the testing scheme met the related goals of

detection and deterrence. See id. at 1304. The Court found it significant that Georgia’s

drug testing scheme was neither well-designed to detect drug use among political

candidates, nor was it “a credible means to deter illicit drug” use among the target group.

Id. The test date was known by the candidates well in advance, and thus, “users of illegal

drugs, save for those prohibitively addicted, could abstain for a pretest period sufficient to

avoid detection.” Id. In contrast, the testing regimes upheld in Skinner, Von Raab, and

Acton were quite effective at discovering drug users and deterring drug use. See id. at

1303. For instance, in Skinner, testing of railroad employees occurred immediately after

certain triggering events, such as railroad accidents, “the timing of which no employee

[could] predict with certainty.” See Skinner, 489 U.S. at 630. The Court determined that

the unpredictability of timing for the tests would “significantly increase the deterrent

effect.” Id. Similarly, in Von Raab, testing of customs officials occurred upon transfer or

promotion, the timing of which could also not be precisely foreseen. See Chandler, 117

S. Ct. at 1304 n.4 (citing Von Raab, 489 U.S. at 660). In Acton, the drug testing focused


                                             -9-
on student-athletes, who were considered role models by the other students. In this way,

the school’s drug problem was “effectively addressed by making sure that athletes do not

use drugs.” Acton, 515 U.S. at 663.

       In light of the Supreme Court’s analysis in Chandler, the special need showing is

best viewed as a preliminary examination of the government interests at stake. While the

testing program’s ultimate validity depends on a comparison of the government interests

and privacy interests, the government must also be able to show, as a threshold matter,

that its case for suspicionless testing is legitimate. Thus, even if the privacy interest is

virtually non-existent, the special need requirement prevents suspicionless searches where

the government has failed to show either that it has a real interest in testing or that its test

will further its proffered interest. See id. at 1303 (“[T]he testing method the Georgia

statute describes is relatively noninvasive; therefore, if the “special need” showing had

been made, the State could not be faulted for excessive intrusion.”). If we are able to

conclude that the government’s proffered concerns are “real,” see Chandler, 117 S. Ct. at

1303, and that the challenged test is an effective means of addressing those concerns, the

special need showing has been made. Nevertheless, we must still conduct the balancing

test by weighing the government’s interest in conducting suspicionless testing against the

privacy interests at stake, which we evaluate by inquiring into the invasiveness of the

privacy intrusion and the nature of the individual’s privacy expectation. See Acton, 515

U.S. at 654, 658.


                                              -10-
       Applying these considerations to the policy before us, we find that the City has

failed to show a special need for its drug testing policy. We note that the City’s proffered

rationale for adopting its drug-testing program was a concern for workplace and public

safety and employee health, and we do not discount this rationale. Indeed, these concerns

seem very real to us, unlike the concerns proffered in Chandler, despite the absence of a

documented drug problem among the mechanics or any evidence that drug use by the

mechanics has resulted in accidents involving the City’s trash trucks. The mechanics

clearly perform a job in which safety is an important concern. Cf. Skinner, 489 U.S. at

620 (upholding drug-testing scheme that tested, among others, “those engaged in

maintenance and repair of signal systems”); National Federation of Federal Employees v.

Cheney, 884 F.2d 603 (D.C. Cir. 1989) (classifying aviation mechanics as holding safety

sensitive positions and upholding testing scheme as to them). They work in an industrial

repair shop where large machines and parts are mechanically lifted for repairs, and the

trucks that they repair are released back onto city streets. The City has a significant

interest in ensuring that its employees do not operate heavy machinery in a dangerous

manner, endangering others in the shop, or conduct repairs improperly, imperiling

individuals on the public streets.

       Nevertheless, the City is unable to satisfy the second part of the special need

showing. The manner in which the City’s drug-testing policy is executed indicates that it

lacks a real capacity to address drug use in the workplace. First of all, the drug tests


                                             -11-
occur in predictable intervals--when a mechanic obtains or renews a CDL. Thus, a

mechanic should know well in advance when he will have to produce a specimen, and can

easily evade detection merely by detoxifying his system prior to the tests. Additionally,

the tests are very limited in frequency. Renewal of a CDL occurs only once every four

years. Although frequent testing is not necessarily required to establish the efficacy of a

drug testing program, the City has failed to show that its infrequent testing would

effectively detect and deter drug use. Therefore, this program is not at all well-designed

to detect drug use among its employees and lacks any deterrent effect. Cf. Chandler, 117

S. Ct. at 1304 (noting that 30 days advance notice of test date made it easy for any drug-

using candidates to avoid detection). Indeed, even though the mechanics’ repair work is

not inspected before the trucks are returned to service, the general day-to-day scrutiny that

they experience in the workplace serves more of a deterrent effect than this testing

scheme. Compare Chandler, 117 S. Ct. at 1304 (noting that political candidates “are

subject to relentless scrutiny” that would make it difficult for a candidate to hide a drug

abuse problem) with Von Raab, 489 S. Ct. at 674 (explaining that detecting drug

impairment on the part of employees such as Customs agents is particularly difficult

because they do not operate under “the kind of day-to-day scrutiny that is the norm in

more traditional office environments”).

       In the end, we must evaluate whether the safety and health concerns cited by the

City would genuinely be advanced by the testing program. While we recognize that the


                                            -12-
City has important safety and health concerns in testing its mechanics for drug use, given

that the scheme that the City devised would not effectively detect or deter drug use, we

must conclude that the City has failed to show a special need for suspicionless drug

testing. Because we find that the program is not based on a special governmental need,

we do not need proceed to balance the parties’ respective interests. The judgment is

therefore AFFIRMED.




                                           -13-
No. 96-2177, Solid Waste Mechanics v. City of Albuquerque

BRISCOE, Circuit Judge, concurring:

       I concur in the majority’s affirmance of the district court’s judgment in favor of

plaintiffs. I write separately because I do not believe the City has demonstrated a real and

immediate interest in conducting suspicionless drug testing of mechanics in its Solid

Waste Department.

       To pass constitutional muster, the City’s “proffered special need for drug testing

must be substantial -- important enough to override the individual’s acknowledged

privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal

requirement of individualized suspicion.” Chandler v. Miller, 117 S. Ct. 1295, 1303

(1997). In deciding whether the City has met this difficult standard, the initial focus is on

“the nature and immediacy of the governmental concern at issue.” Vernonia School

District 47J v. Acton, 515 U.S. 646, 660 (1995).

       Here, there is little evidence of what actually motivated the City to subject

mechanics in the Solid Waste Department to suspicionless drug testing. For the most

part, we have only the City’s arguments as presented to the district court and to this court.

At best, there is a general policy statement in the City’s Administrative Instruction No.

123 that the City has an “interest in maintaining safe, healthful and efficient working

conditions for its employees,” and that “[b]eing under the influence of alcohol, or the

presence of certain drugs in the body system, may pose serious safety and health risks not

only to the user but to all those in contact with the user.” However, this rationale could
arguably be applied to any and all City employees and, in my opinion, it does not rise to

the level of a real and immediate interest that could justify suspicionless drug testing.

       Notably absent is any evidence suggesting a past history of drug use among

mechanics in the Solid Waste Department (or, for that matter, among any City

employees), or even any fear or suspicion of such drug use. Although such evidence may

not always be necessary, the Supreme Court has emphasized that such evidence will

“shore up an assertion of special need” by helping to “clarify” and “substantiate . . . the

precise hazards posed by such use.” Chandler, 117 S. Ct. at 1303. Indeed, two of three

cases where the Supreme Court has approved suspicionless drug testing involved

evidence of actual drug abuse problems among the target populations. See Skinner v.

Railway Labor Executives’ Assoc., 489 U.S. 602, 607 (1989) (governmental concern in

preventing railway accidents was motivated by findings of drug use by railroad employees

nationwide, as well as by evidence that drug and alcohol use had been probable cause or

contributing factor in prior accidents); Vernonia, 515 U.S. at 662-63 (challenged drug

testing program was implemented because large segment of high school student body,

particularly student-athletes, were in “a state of rebellion . . . fueled by alcohol and drug

abuse as well as by [their] misperceptions about the drug culture”); see also Chandler, 117

S. Ct. at 1303 (rejecting random drug test that was not motivated by any evidence of a

“concrete danger” or a history of drug abuse by persons subject to test).




                                              -2-
       Nor has the City adequately demonstrated plaintiffs’ job responsibilities are such

that suspicionless drug testing is justified in the absence of a demonstrated problem of

drug use. In Von Raab, the Supreme Court approved suspicionless drug testing of certain

Customs Service employees even though there was no concrete evidence of a problem of

drug use among such employees. However, as the Court subsequently emphasized in

Chandler, “Von Raab must be read in its unique context.” 117 S. Ct. at 1304.

Specifically, the Customs Service employees at issue in Von Raab were either “directly

involved [in] drug interdiction or otherwise required . . . to carry a firearm,” were

routinely exposed to organized crime and illegal contraband, and had been frequent

targets of bribery by drug smugglers. Id. Based upon these job tasks and associated risks,

the Supreme Court concluded “the Government ha[d] a compelling interest in ensuring

that front-line interdiction personnel [we]re physically fit, and ha[d] unimpeachable

integrity and judgment.” Von Raab, 489 U.S. at 670. Similarly, the Court concluded

there was a governmental interest in “prevent[ing] the promotion of drug users to

positions that require[d] the incumbent to carry a firearm, even if the incumbent wa[s] not

engaged directly in the interdiction of drugs.” Id.

       Here, there is a troubling lack of evidence concerning what tasks are actually

performed by plaintiffs.1 Even overlooking this problem, I am not convinced the tasks

       1
          The City’s motion for summary judgment contained a limited number of statements
regarding plaintiffs’ job responsibilities. Although the City cited to deposition testimony to
support those statements, none of the cited testimony was attached to the City’s motion or
otherwise included in the record on appeal. Further, there was no indication the cited testimony

                                               -3-
performed and the risks faced by plaintiffs are sufficiently comparable to the employees

in Von Raab to allow us to conclude the City has a special interest that justifies departure

from the Fourth Amendment’s usual requirement of reasonable individualized suspicion.

Thus, I agree with the district court’s conclusion on this point: “On the record before me,

I cannot conclude that solid waste mechanics have a significant impact upon the safety of

the public, that they expose other employees to hazardous conditions or that their specific

job requirements require responsibility for the safety of others.” Memorandum Opinion

and Order at 9.

       Finally, it should be noted that the record on appeal contains evidence (i.e., an

affidavit from Assistant City Attorney Peggy Hardwick) suggesting plaintiffs were

subjected to drug testing solely because of the City’s alleged interest in maintaining

consistent policies with respect to all mechanics employed by the City and not because of

any safety or health concerns peculiar to plaintiffs’ positions. As the district court

concluded after reviewing this evidence, “[i]t appears that the primary reason the [C]ity . .

. included” plaintiffs in its random drug testing policy was “the [C]ity’s administrative

convenience.” Id. at 10.

       For these reasons, the only conclusion that can be reached is that the City’s alleged

interests in random testing are, like the government concerns alleged in Chandler,

“hypothetical” rather than “real.” 117 S. Ct. at 1303.



was submitted to the district court.

                                             -4-
