13-3647-cv
Allen v. Schiff

                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


               At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of October, two thousand fourteen.

PRESENT:            PIERRE N. LEVAL,
                    DENNY CHIN,
                    SUSAN L. CARNEY,
                                Circuit Judges.

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LILLIAN ALLEN,
                                        Plaintiff-Appellant,

v.
                                                                                   13-3647-cv

MICHAEL SCHIFF, INDIVIDUALLY AND IN
HIS OFFICIAL CAPACITY AS SULLIVAN
COUNTY SHERIFF, SULLIVAN COUNTY, A
MUNICIPAL ENTITY,
                     Defendants-Appellees.

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FOR PLAINTIFF-APPELLANT:
COLLEEN M. MEENAN, Meenan &
Associates, LLC, New York, New York.

FOR DEFENDANTS-APPELLEES:
CHERYL A. McCAUSLAND, Office of the
County Attorney County of Sullivan,
Monticello, New York.



Appeal from the United States District Court for the Southern District of New York

(Briccetti, J.).

                   UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

                   Plaintiff-appellant Lillian Allen appeals from the district court's judgment

entered August 29, 2013, in favor of defendants-appellees the County of Sullivan and its

Sheriff, Michael Schiff. By memorandum decision entered December 7, 2012, the

district court granted defendants' summary judgment motion in part, dismissing certain

claims but permitting Allen to proceed with, inter alia, her Fourth Amendment claim.

Thereafter, Allen moved for reconsideration, arguing that the district court should have

granted summary judgment in her favor on the Fourth Amendment claim. By

memorandum decision entered January 15, 2013, the district court denied Allen's

motion for reconsideration. Finally, the district court conducted a bench trial with

respect to Allen's remaining claim under the Fourth Amendment, and it rendered




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findings of fact and conclusions of law from the bench on August 29, 2013, holding the

defendants not liable.

              On appeal, Allen argues that the district court erred as a matter of law in

failing to find that her employer's drug testing procedure violated the Fourth

Amendment. Specifically, she contends that the district court erred in holding that, for

purposes of the Fourth Amendment, she had a "substantially diminished" expectation

of privacy, the intrusiveness of the search was "mitigated," and the government had a

compelling interest sufficient to justify the observed drug test to which she was

subjected. App. 11, 23-25. We assume the parties' familiarity with the facts, procedural

history, and issues on appeal, which we reference only as necessary to explain our

decision.

              Allen was a corrections officer employed by the County at the Sullivan

County Jail. She was responsible for interdicting contraband, including illegal drugs,

and at times she was required to carry a firearm. On June 26, 2007, the County

administered a random urine drug test, and she tested positive. She subsequently

admitted to smoking marijuana the day before the drug test and on other occasions.

With the assistance of her union, Allen grieved the matter. After grievance

proceedings, an arbitration, and state court litigation, the County terminated her

employment.




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              With respect to the reasonableness of the drug test conducted on June 26,

2007, the district court concluded, in its findings of fact and conclusions of law, that: (1)

Allen had a "substantially diminished expectation of privacy" because of her

responsibilities as a corrections officer and because she was on notice, pursuant to the

terms of the applicable collective bargaining agreement, that she was subject to random

drug tests; (2) the drug test "was intrusive but not inappropriately so"; and (3) the

County "had a compelling interest in effecting the search as it was carried out in this

case." App. 184-86, 188.

              When "special needs" other than crime detection or ordinary evidence-

gathering are alleged in justification of a Fourth Amendment intrusion, courts assess the

constitutionality of the challenged conduct by weighing the government conduct in

light of the special need and against the privacy interest advanced. Cassidy v. Chertoff,

471 F.3d 67, 75 (2d Cir. 2006); see also Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53

(1995). The analysis requires an examination of three factors: "(1) the nature of the

privacy interest involved; (2) the character and degree of the governmental intrusion;

and (3) the nature and immediacy of the government's needs, and the efficacy of its

policy in addressing those needs." Cassidy, 471 F.3d at 75. We review a district court's

factual findings for clear error "but we review de novo a district court's application of the

facts to draw conclusions of law." United States v. Aumais, 656 F.3d 147, 154 (2d Cir.

2011) (internal quotation marks omitted).


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              Allen's privacy interests were indeed "substantially diminished" because

she was tasked with interdicting drugs and carrying firearms and was on notice that she

could be tested at any time. See, e.g., Vernonia, 515 U.S. at 657 (finding that student-

athletes who were provided with communal locker rooms and voluntarily participated

in school sports had a diminished expectation of privacy); Nat'l Treasury Emps. Union v.

Von Raab, 489 U.S. 656, 672 (1989) (holding that U.S. Customs Service agents required to

interdict drugs and carry firearms had a diminished expectation of privacy). The test

collector, in obtaining Allen's urine sample, "took substantial measures to minimize the

intrusion of privacy" by conducting the test at a secluded location, closing all adjacent

doors, blocking the windows, leaving the bathroom door open only 6-12 inches,

standing outside the bathroom stall, and focusing her attention on Allen's hand and cup

to avoid viewing her genitalia. Finally, the government had a compelling interest "in

insuring that correction officers charged with interdicting drugs and carrying firearms

were not using drugs," and in insuring the drug test's accuracy by observing the test

collection. Sp. App. 190-91. In balancing the "plaintiff's substantially reduced

expectation of privacy, the test's mitigated intrusion upon plaintiff's expectation of

privacy, and the government's compelling interest in conducting the test and insuring

[its] integrity," the district court properly found that the special needs of employing

drug-free correctional officers was reasonable under the Fourth Amendment. Sp. App.

190-91.


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              Finally, Allen contends we should overturn the post-trial judgment in the

defendants' favor on the ground that the district court ought to have entered summary

judgment in her favor because it was "undisputed" on the summary judgment record

that the test collector had "direct observation" of her when she gave the urine sample.

Absent extraordinary circumstances, which are not present here, a court of appeals will

not revisit the propriety of a denial of summary judgment after a full trial on the merits.

Pahuta v. Massey-Ferguson, Inc., 170 F.3d 125, 130 (2d Cir. 1999). "Once trial began, the

summary judgment motion [ ] effectively became moot." Id. (internal quotation marks

omitted). Because the evidence at trial sustained the trial court's findings, we will not

revisit the question whether the trial court ought to have found otherwise at the

summary judgment stage.

              We have considered Allen's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine O'Hagan Wolfe, Clerk




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