BNSF Railway Co. v. United States Department of Transportation

Majority - Circuit Judge TATEL

Yes, the Department of Transportation's final rule mandating direct observation drug tests and a partial disrobing requirement for returning transportation employees does not violate the Administrative Procedure Act and complies with the Fourth Amendment. The court found the Department's justification for the rule to be neither arbitrary nor capricious under the Administrative Procedure Act, as the DOT marshaled substantial evidence of the increasing availability of sophisticated cheating products and reasonably inferred their use, especially given the difficulty of obtaining direct empirical data on successful cheating. The Department also reasonably concluded that employees returning to safety-sensitive duties after a prior drug violation or refusal have a heightened incentive to cheat due to severe sanctions for repeat offenses and higher rates of drug test violations among this group, a conclusion supported by expert opinions from substance abuse professionals. The DOT adequately considered less intrusive alternatives but found them insufficient or not permitted by statute. Turning to the Fourth Amendment, the court applied the 'special needs' exception to the warrant requirement, balancing the government's compelling interest in transportation safety against the individual's privacy interest. The court affirmed that direct observation significantly furthers the government's interest in effective drug testing given the proliferation of cheating devices. While acknowledging the highly intrusive nature of direct observation and partial disrobing, the court concluded that the privacy interests of these specific employees are significantly diminished because they perform safety-sensitive duties in a pervasively regulated industry and, crucially, because they have intentionally violated valid drug regulations in the recent past. This prior misconduct, coupled with the ability to avoid the search by complying with regulations, mitigated the intrusion. The court distinguished previous precedent, NTEU v. Yeutter, based on the current record demonstrating the inadequacy of standard monitoring against modern cheating devices. The partial disrobing requirement was deemed a reasonable and necessary procedure to detect prosthetic devices, being only incrementally more intrusive than the direct observation itself. The court emphasized its holding was limited to a facial challenge.