                    UNITED STATES COURT OF APPEALS
                          Office of the Clerk
                 Byron White United States Courthouse
                           1823 Stout Street
                            Denver, CO 80257

Patrick Fisher                                  Elisabeth Shumaker
Clerk                                           Chief Deputy Clerk


                          February 28, 1996


     To: ALL RECIPIENTS OF THE CAPTIONED OPINION

     Re: 95-2003, Rutherford v. City of Albuquerque
         Filed February 23, 1996, by Judge Coffin


          Please be advised of the folowing correction to the
captioned decision:
          Page 1, within the paragraph for the counsel for the
defendants-appellees , the City of Albuquerque is incorrectly listed
as Aluquerque.

          Page 16, third paragraph, third line, the reference to
(10th Cir. Jan. xx, 1996) should read (10th Cir. Jan 17, 1996).

          Please make these corrections to your copy.




                                          Very truly yours,

                                          Patrick Fisher,
                                          Clerk


                                          By:
                                          Barbara Schermerhorn
                                          Deputy Clerk
                               PUBLISH

                    UNITED STATES COURT OF APPEALS
Filed 2/23/96
                             TENTH CIRCUIT
                         ____________________

JERRY RUTHERFORD,                       )
                                        )
          Plaintiff-Appellant,          )
                                        )
v.                                      )       No. 95-2003
                                        )
ALBUQUERQUE, CITY OF; LOUIS E.          )
SAAVEDRA, Mayor, ARTHUR BLUMENFELD,     )
Chief Administrative Officer; JACK      )
BURKHARD, JULIE GARCIA, MYRA            )
GUTIERREZ, MARYANNE OLLER, individually )
and in their official capacities;       )
ALBUQUERQUE PARKING/TRANSIT DEPARTMENT; )
CITY OF ALBUQUERQUE EMPLOYEE HEALTH     )
CENTER,                                 )
                                        )
          Defendants-Appellees.         )
                      ____________________
          Appeal from the United States District Court
                 for the District of New Mexico
                    (D.C. No. CIV-91-1235-JB)
                       ____________________
Paul Livingston, Albuquerque, New Mexico, for Plaintiff-Appellant.
Victor S. Lopez, Assistant City Attorney, Albuquerque, New Mexico
(Robert M. White, City Attorney, and Judy K. Kelley, Assistant City
Attorney, on the brief), for Defendants-Appellees.
                       ____________________

Before SEYMOUR, COFFIN, 1 and McKAY.
                      ____________________

     COFFIN, Senior Circuit Judge. Appellant Jerry Rutherford was

fired from his job with the City of Albuquerque because of a

positive drug test.    His challenge to the testing on due process

and Fourth Amendment grounds was rejected by the district court,


    1
     The Honorable Frank M. Coffin, United States Senior Circuit
Judge for the First Circuit, sitting by designation.
                                 -2-
which granted summary judgment for the City on both claims.             We

affirm the court's ruling on the due process claim, but conclude

that the circumstances surrounding Rutherford's testing constituted

an unreasonable search in violation of the Fourth Amendment.

                        I. Factual Background 2
     Rutherford began working for the City of Albuquerque as a bus

driver in April 1980.    In April 1990, as a result of back problems

that followed a work-related accident and a subsequent heart

attack, he was placed into physical layoff status. He remained out
of work until April 1991, when a doctor determined that he was fit

to resume employment.
     Rutherford was scheduled to return to work on Monday, April

15, as a truck driver in the Public Works Department.        He was sent

first to the Employee Health Center for a medical examination,

including a urinalysis to test for drugs.         The test revealed the

presence of marijuana metabolites, indicating recent exposure to
the drug. Rutherford admitted in his deposition that he had smoked

marijuana a week or two before the test.

     The drug test had been given to Rutherford pursuant to city

policy   adopted   earlier   in   1991.   The     policy,   set   out   in

Administrative Instruction Nos. 121 and 123, provided for drug

testing in several specific situations, including testing as a
prerequisite to obtaining a city operator's permit. Such a permit

is required for the truck driving position Rutherford was to fill.


    2
      Unless otherwise noted, the facts are not significantly in
dispute.
                                  -3-
The City also requires drug testing as a condition of beginning

employment.   In the district court and in its appellate brief, the

City maintained that Rutherford was tested because he needed an

operator's    permit;   at     oral    argument,   the   City's   counsel

acknowledged that Rutherford had such a permit and asserted that he

was tested as a "new hire" because of his new position. 3

     The substance abuse policy required termination              for any

employee in Rutherford's position who tested positive for drugs

and, following his positive result, Rutherford was fired.              He
received both a pre-termination hearing and a full evidentiary
hearing following his discharge on May 3.          The personnel hearing
officer upheld the firing, and the City Personnel Board unanimously

adopted the officer's recommendation.

     Rutherford thereafter brought this action, claiming that he

was denied procedural due process and that the mandatory drug test

violated his Fourth Amendment right to be free from unreasonable
searches and seizures.       Defendants moved for summary judgment on

both claims, and Rutherford also moved for summary judgment on the

Fourth Amendment claim.       In rejecting the due process claim, the

district court noted that Rutherford was given the opportunity to

challenge the validity of his drug test at all stages of the

administrative proceedings and therefore concluded that Rutherford

was provided "all the process he was due." On the Fourth Amendment



      3
         The policy also requires testing based upon reasonable
suspicion and following self-referral to the Employee Assistance
Program.
                                      -4-
claim, the court canvassed the precedent on the constitutionality

of mandatory drug testing of public employees and determined that

"the City's compelling interest in reducing the risk of drug-

related accidents among drivers of vehicles weighing over 26,000

pounds outweighs Plaintiff's privacy expectations."

       In     this   appeal,   Rutherford   challenges     each    of   those

determinations.

                            II. Fourth Amendment

       It is well established that a urinalysis required by a
government employer for the purpose of detecting illegal drug use

is a search protected by the Fourth Amendment.              See Skinner v.
Railway Labor Executives' Ass'n , 489 U.S. 602, 617-18 (1989);
National Treasury Employees Union v. Von Raab, 489 U.S. 656, 678-79

(1989); Saavedra v. City of Albuquerque, slip op. at              (10th Cir.

Jan.        1996).   The Fourth Amendment, however, does not proscribe

all searches; it bars only unreasonable ones.
       What is reasonable, of course, "depends on all of the
       circumstances surrounding the search or seizure and the
       nature of the search or seizure itself." . . . Thus,
       the permissibility of a particular practice "is judged by
       balancing its intrusion on the individual's Fourth
       Amendment interests against its promotion of legitimate
       governmental interests."

Skinner, 489 U.S. at 619 (citations omitted).

       In the two leading Supreme Court employee drug testing cases,

Skinner and Von Raab, the justices concluded that the testing at

issue was permissible without the usual protection of a warrant

based   on     probable   cause,   and   even   without   "any    measure   of

individualized suspicion," 489 U.S. at 668.          See also id. at 633.

                                     -5-
In Skinner, the Court ruled that railroad employees' privacy
expectations,      which    were      limited    because       of    the    industry's

pervasive       regulation,     were     outweighed       by    the    government's

compelling interest in ensuring the safe operation of the rails.

In Von Raab, the Court similarly found that the government's

interests in safety and the integrity of its borders outweighed the

individual      privacy    interests     of     customs    officials        who   carry

firearms or are involved in drug interdiction. 4

     The City argues that the balancing here leads to the same
result.     Because Rutherford's new job required him to drive a

26,000-pound truck, whose mishandling could cause serious and
substantial injury or other harm, his position is classified as
"safety sensitive" by the City and he is required to submit to drug

testing.    The City contends that the privacy interests of "safety

sensitive" employees such as Rutherford unquestionably must give

way to the City's need to assure their sobriety and, ultimately, to
ensure    the    safety    of   the    general    public       and    the    employees

themselves.      In agreeing with the City, the district court heavily

relied on a Ninth Circuit decision validating mandatory drug

testing of commercial truck drivers whose vehicles are comparable

in weight to Rutherford's.            See International Broth. of Teamsters
v. Department of Transp., 932 F.2d 1292, 1304 (9th Cir. 1991) ("A

26,000 pound truck . . . `becomes lethal when operated negligently


    4
      The Court withheld judgment, however, on the reasonableness
of testing employees solely because they handled classified
material, remanding for further development of the record on that
issue. 489 U.S. at 677-78.
                                         -6-
by persons who are under the influence of . . . drugs.'") (citation

omitted).

        Rutherford responds in two ways.            First, he argues that city

truck drivers such as himself are inappropriately classified as

"safety    sensitive";    hence,   the       City    may   not   subject   him   to

mandatory, suspicionless drug testing.                 He rejects the City's

comparison to the Ninth Circuit's Teamsters case, and asserts that

significant differences exist between the long-distance truckers at
                                                                                  5
issue     there   and    city   dump     truck       drivers like himself.
Rutherford's second response is narrower. Whatever the validity of

suspicionless drug testing for heavy truck drivers generally, he
claims that the City unfairly implemented its policy in the

particular circumstances of this case.                Because we find merit in
this latter complaint, we decline to reach the broader question.

        We therefore accept for the moment the City's assertion that

Rutherford's job properly was designated as safety sensitive, and
that he may be subject to mandatory drug testing even in the

absence of reasonable suspicion.              The question that remains is

whether the specific procedures used here and the intrusion on

privacy they caused were reasonable.                See Taylor v. O'Grady, 888



    5
      Although not based on record evidence, he asserts that over-
the-road truckers often work many miles from their home office and
supervisors, while city employees report each day to the same
location and seldom are far from their supervisors, rendering day-
to-day scrutiny more feasible. In addition, he notes that city
drivers frequently interact with their crews and colleagues, and
direct observation of them is therefore possible. In addition, he
points out that the trucking industry is closely regulated, and the
drivers' privacy expectations consequently are more limited.
                                       -7-
F.2d 1189, 1195 (7th Cir. 1989) ("[W]hile urinalysis may be within

the government's prerogative in a given circumstance, the manner in

which the program is carried out may be so unnecessarily intrusive

as to render it constitutionally intolerable.")

         Rutherford points to several aspects of his testing that

distance it from cases, such as          Skinner and Von Raab, in which
courts have upheld drug tests. First, he notes that neither of the

provisions of the substance abuse policy invoked by the City

expressly applied to him at the time he returned to work.         Because
he already had a city operator's license, the provision requiring

a   test    as   a   prerequisite   to    such   licensing   facially   was
inapplicable.        The policy states that a city employee who has a

license will be tested at the time of license renewal, which, in

Rutherford's case, had not yet arrived.          In addition, because he

was not an applicant seeking employment with the City for the first

time, but instead was a city employee returning to work after a
medical absence, he asserts that the provision for pre-employment

testing also was inapplicable. 6     Cf. Laverpool, et al. v. New York

City Transit Auth., 835 F. Supp. 1440, 1456 (E.D.N.Y. 1993), aff'd,

41 F.3d 1501 (2d Cir. 1994) (policy provided for drug testing of
safety sensitive employees when "they return to work after an

extended absence of suspension").         He emphasizes, as well, that he



     6
      At argument, the City contended that it was routine practice
to test employees who were transferred to new positions.       The
Administrative Instructions do not, by their terms, contemplate
such testing, and we found no support in the record for the
statement that it nevertheless was commonplace.
                                    -8-
was not told that he would be tested until he came to work on April

15.7

       Rutherford maintains, and we agree, that the circumstances

surrounding    his   urinalysis   resulted   in   a   substantially   more

intrusive search than those upheld by the Supreme Court in Skinner
and Von Raab. In both of those cases, the Court observed that "the

circumstances justifying toxicological testing and the permissible

limits of such intrusions are defined narrowly and specifically in

the regulations that authorize them," Skinner, 489 U.S. at 622; Von
Raab, id. at 667.     Thus, because "minimal discretion [was] vested

in those charged with administering the program," a search warrant
authorized by a neutral magistrate was less crucial than in other

Fourth Amendment contexts. Skinner, 489 U.S. at 622. See also Von
Raab, 489 U.S. at 667; International Broth. of Teamsters, 932 F.2d

at 1299-1300.

       Here, however, the officials who decided Rutherford should be
tested did exercise significant discretion -- indeed, departing

from the literal language of the substance abuse policy.         It also
is of importance that Rutherford was given no advance warning of

the testing.    Not only did the substance abuse policy on its face

fail to alert him, but the city officials who called him in to work




       7
       The parties disagree about whether Rutherford knew that a
substance abuse policy had been put into effect in early 1991,
while he was on leave. Even if he had some general awareness,
however, it appears undisputed that he had no occasion while out of
work to receive an explanation of its applicability.
                                   -9-
also did not tell him that the test would be administered the day

he returned. 8

     This sort of unwarned testing is, we think, the most intrusive

possible, contravening all of one's reasonable expectations of

privacy.     In Skinner, testing was triggered by accidents, other

safety-related incidents, and rule violations.       In   Von Raab,
testing was required only for employees who sought transfer or

promotion to certain positions, and the employees were notified in

advance of the scheduled sample collection.    489 U.S. at 672 n.2.
In both cases, the employees knew when testing would, or could,

occur.     Even when drug screening is not linked to any event, and
truly is random, employees typically know that they are subject to

unannounced testing: "Drivers will be aware of the existence of a

random drug-testing scheme, so while the precise time of the test

will be unknown, the fact that they are subject to this search



     8
      In Findings of Fact and Conclusions following Rutherford's
post-termination grievance hearing, the City Personnel Hearing
Officer reported the testimony of a Personnel Testing Analyst that
she had asked Rutherford whether he wanted to take the drug test
the same morning as his physical or wait until later.
     Martinez [the analyst] said that Rutherford replied,
     "Might as well get it out of the way". Rutherford stated
     that he remembered speaking with Martinez . . . , but she
     only told him where to sign the appropriate forms.

We found no further reference to this factual dispute in the record
and,   consequently,   consider   it   of  limited   significance.
Presumably, if Rutherford were given the option of waiting a
meaningful period of time after his return to work, the City would
have so informed us -- in light of Rutherford's repeated assertion
that he was subjected to a surprise test, without any advance
warning. An option to delay the test a short time would not lead
us to a different result.
                                 -10-
procedure will not be a surprise."              International   Broth.    of

Teamsters, 932 F.2d at 1303.9      This knowledge, the Ninth Circuit

observed,   means   that   "the   amount   of    anxiety   should   not   be

substantial," id.     The privacy intrusion consequently is less

severe. The Supreme Court acknowledged the importance of notice in

the Fourth Amendment calculus in Von Raab, where it identified
advance notice as a factor that minimized the testing program's

intrusion on privacy.      See 489 U.S. at 672 n.2.

     Nor were other factors present to diminish Rutherford's
expectation of privacy.      Unlike the workers in         Skinner or the

jockeys and other horse race participants in Dimeo v. Griffin, 943
F.2d 679, 681 (7th Cir. 1991) (en banc), he does not serve "in an

industry that is regulated pervasively to ensure safety," Railway
Labor, 489 U.S. at 627.10    His job does not implicate the national

concerns underlying the Supreme Court's conclusion in Von Raab,

where the Court noted that Customs employees who carry firearms or
enforce drug laws -- "[u]nlike most private citizens or government




     9
       The plan at issue in American Federation of Gov't Emp. v.
Cavazos, 721 F. Supp. 1361 (D.D.C. 1989), aff'd in part, vacated
and remanded in part, AFGE v. Sanders, 926 F.2d 1215 (D.C. Cir.
1991), for example, provided that, in addition to the general 60-
day notice of its implementation, each employee subject to random
testing be given individual notice stating that his or her position
was selected as sensitive, or "testing designated," and that the
employee could be tested 30 days after the date of the notice.
     10
        In addition to safety concerns, the regulation of horse
racing stems from its status as a "magnet for gambling" and its
"shadowed[] reputation, growing out of a long history of fixing,
cheating, doping of horses, illegal gambling, and other corrupt
practices." 943 F.2d at 681.
                                  -11-
employees in general," id. at 672 -- "reasonably should expect
effective inquiry into their fitness and probity." 11

     The City's interest in ensuring safety, meanwhile, appears to

have been at a fairly low ebb with respect to Rutherford's test.

First, he was not a new employee whose work habits were unknown.

The City had had substantial experience -- a decade -- with

Rutherford, and presumably detected no signs of drug or alcohol

abuse during that period. 12    See Willner v. Thornburgh, 928 F.2d

1185, 1193 (D.C. Cir. 1991)13    Second, he was not moving to a more
safety-sensitive position; his previous job as a bus driver was at



          11
         The Court observed that "[t]he Customs Service is our
Nation's first line of defense against one of the greatest problems
affecting the health and welfare of our population," referring to
"`the veritable national crisis in law enforcement caused by
smuggling of illicit narcotics.'"      489 U.S. at 668 (citation
omitted).
     12
       We do not mean to suggest that a drug testing program may
not be applied to employees with substantial tenure. We note this
factor here only because the City seeks to justify testing
Rutherford as a "new" hire.
   13
      Willner involved the suspicionless testing of applicants for
Justice Department attorney positions. The court observed that
"[t]he government's interest in detecting drug use is substantial
at the pre-employment stage because . . . the applicant is an
outsider." It also noted:

     The fact remains that the applicant is a person the
     government, as prospective employer, has had no
     opportunity to observe in the setting of the workplace.
     . . . In regard to incumbents . . . , direct observation
     together with the reasonable suspicion test may uncover
     those employees who ought to be tested. That obviously
     is not true for applicants and is another factor to be
     weighed in favor of finding it "impractical" for the
     Justice Department to obtain warrants or information
     leading it to suspect drug use before requiring
     candidates for employment to be tested.
                                 -12-
least as safety-sensitive as the new job to which he was assigned.

There was no change in his status, therefore, requiring more

caution with him than with other employees who were subject to

testing only upon expiration of their commercial driver's licenses.

Third, the absence of notice to Rutherford that he would be tested

on the day he returned to work deprived the City of any deterrence

justification for administering the test to him.

     Finally, because he had not been at work in more than a year,

even a positive test result could have revealed nothing about his
work behavior unless it showed that he presently was under the

influence of drugs.   Although we do not minimize the importance of
detecting impaired employees, the fact that such tests may show

only that the employee was exposed to drugs weeks earlier means

that Rutherford's testing would be a uniquely unreliable gauge of

his on-the-job conduct. 14   While past drug exposure by regular

employees could reflect use while they were at work, such an
inference is not possible for an employee who has been on an

extended medical leave until the day of the test. 15
     In sum, even conceding that the City has an important safety

interest in ensuring that its heavy truck drivers are free from



         14
          It is uncontroverted that the test administered to
Rutherford was incapable of determining the timing, amount, or
manner of the marijuana exposure.
    15
       The City admitted in its answer to the complaint and in its
Responses and Objections to Plaintiff's Requests for Admissions
that "the drug test given to Jerry Rutherford on April 15, 1991,
could not possibly have demonstrated drug use or impairment at work
or in the workplace."
                                -13-
drugs, that interest in this case is considerably diluted by the
factors we have just discussed.          We conclude that, when balanced

against the unusually intrusive nature of the testing as described

above and the fact that a positive test leads inexorably to

termination, this diluted interest must give way to Rutherford's
expectation of privacy.           Cf. Willner, 928 F.2d at 1188 ("The

protections of the Fourth Amendment are graduated in proportation

to   the        privacy   interests   affected.      Decreasing   levels    of
                                                                       16
intrusiveness require decreasing levels of justification").
     Accordingly, we hold that the City's testing of Rutherford

constituted an unreasonable search in violation of the Fourth
Amendment.

                               III. Due Process 17


       16
         We note that the relative weights of the interests in
Skinner and Von Raab do not constitute a standard that must be met
in every case.    The Court noted recently that, although the
government interest in both of those cases was characterized as
"compelling,"
     [i]t is a mistake . . . to think that the phrase
     "compelling state interest," in the Fourth Amendment
     context, describes a fixed, minimum quantum of
     governmental concern, so that one can dispose of a case
     by answering in isolation the question: Is there a
     compelling state interest here?      Rather, the phrase
     describes an interest which appears important enough to
     justify the particular search at hand, in light of other
     factors which show the search to be relatively intrusive
     upon a genuine expectation of privacy.
Vernonia Sch. Dist. 47J v. Acton, 115 S. Ct. 2386, 2394-95 (1995)
(emphasis in original).
           17
          Our disposition of the Fourth Amendment issue gives
Rutherford a basis for reinstatement and damages. We nevertheless
think it appropriate to address why his due process claim does not
fair as well.
                                       -14-
     Rutherford argues that the City denied him procedural due

process in terminating him based on the positive drug test.             He

claims that he was not given a meaningful opportunity to challenge

the City's decision to discharge him "[b]ecause there was nothing

[he] could do or say that would mitigate or alter the City's use of

the positive drug test to terminate his employment . . . ."             He

also contends that the City unfairly put the burden of proof on him

to show the absence of just cause, arguing that the City instead

should have been required to prove beyond a reasonable doubt or
with clear and convincing evidence that there was just cause for

the firing.
     We    recently   have   rejected    essentially   the   same   claims

involving the same policy, see Saavedra v. City of Albuquerque, No.
94-2220 (10th Cir. Jan. 17, 1996), and we see no reason to reach a

different conclusion here.      Rutherford's primary objection is to

the City's equating a positive drug test with just cause for
discharge.    As the Supreme Court has noted, however, there can be

no doubt "that drug abuse is one of the most serious problems

confronting our society today," Von Raab, 489 U.S. at 674.          In the

face of that reality, the City's decision to treat a positive drug
test as "just cause" for immediate discharge of employees deemed

safety sensitive, though harsh, is not irrational and cannot be

held offensive to the Constitution. 18


      18
         We note the Supreme Court's observation that "a prior
hearing facilitates the consideration of whether a permissible
course of action is also an appropriate one," Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 543 n.8 (1985). Although it was
                                  -15-
     For the foregoing reasons, the judgment of the district court

is affirmed in part and reversed in part, and the case is remanded

for further proceedings consistent with this opinion.    Costs to

appellant.




to no avail, Rutherford did have the opportunity in his pre- and
post-termination hearings to urge departure from the City's "zero
tolerance" drug policy.
                               -16-
