Opinion
File No. 5:00-CV-21.
March 30, 2001.
OPINION OF THE COURT ON DEFENDANTS' MOTION TO DISMISS
Plaintiffs International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America (UAW), and its Affiliated Local 6000 (collectively referred to as "UAW"), are labor organizations. In this action, they represent certain State of Michigan employees allegedly affected by random drug and alcohol testing requirements imposed by the Michigan Civil Service Commission in the 1999-2001 collective bargaining contract between the UAW and the Office of the State Employer. In their four-count first amended complaint, asserting civil rights claims under 42 U.S.C. § 1983, plaintiffs challenge the drug and alcohol testing requirements as violative of employees' Fourth Amendment privacy and Fourteenth Amendment due process rights. Named as defendants are the directors of departments of state government who have authority to implement the subject drug and alcohol testing policies: Janine Winters, Director of the State Employer; James Haveman, Director of the Michigan Department of Community Health; William Martin, Director of the Michigan Department of Corrections; Arthur Ellis, Superintendent of Public Instruction; Major General E. Gordon Stump, Director of the Michigan Department of Military and Veterans Affairs; and Douglas Howard, Director of the Family Independence Agency. Plaintiffs seek declaratory and injunctive relief, as well as attorney fees.
Now before the Court is defendants' motion to dismiss the complaint in its entirety. Defendants contend that plaintiffs lack standing, that there is no ripe case or controversy, that this Court should abstain, and that, in any event, plaintiffs have failed to state a claim upon which relief can be granted.
I. PLAINTIFFS' COMPLAINT
Article 52, in its present form, was included in the collective bargaining contract by the Michigan Civil Service Commission over the UAW's objection. Article 52 allows the employer to require "test-designated employees" to submit to random drug testing or alcohol testing. Among the seven categories of positions defined as "test-designated positions" are four categories of positions occupied by employees who are represented by plaintiffs:
(2) A position in which the incumbent possesses law enforcement powers or is required or permitted to carry a firearm while on duty.
(3) A position in which the incumbent, on a regular basis, provides direct health care services to persons in the care or custody of the state or one of its political subdivisions.
(4) A position in which the incumbent has regular unsupervised access to and direct contact with prisoners, probationers, or parolees.
(5) A position in which the incumbent has unsupervised access to controlled substances.
Collective Bargaining Contract, Art. 52, § 1(g). Since random testing was implemented on March 1, 2000, until August 22, 2000, when plaintiffs' first amended complaint was filed, plaintiffs allege 235 UAW-represented employees had been subjected to a random drug test or alcohol test. In count one of the complaint, plaintiffs allege the random, suspicionless drug and alcohol tests constitute unreasonable searches and seizures in violation of Fourth Amendment privacy rights.
Section 5 of Article 52 provides that a positive alcohol test indicating a breath alcohol concentration equal to or greater than 0.02 shall constitute just cause for the employer to discipline an employee. Although plaintiffs have not alleged that any represented employee has been subject to discipline under this provision, they allege in count two that the threat of discipline constitutes an unreasonable search and seizure and deprives represented employees of property without due process.
In count three, plaintiffs challenge the "reasonable suspicion testing" provision of Article 52, § 3. It requires employees "to submit to a drug test or an alcohol test if there is reasonable suspicion that the employee has violated this article." Plaintiffs contend "reasonable suspicion" is defined so, broadly or vaguely as to allow supervisor abuse and harassment of disfavored employees. Again, plaintiffs do not allege that any represented employee has been subject to unfair treatment, or any discipline at all, under the reasonable suspicion provision. Yet, they allege the threat of enforcement infringes their Fourth Amendment privacy rights.
"Reasonable suspicion" is defined in § 1(e) of Article 52 as follows:
Reasonable suspicion means a belief, drawn from specific objective facts and reasonable inferences drawn from those facts in light of experience, that an employee is using or may have used drugs or alcohol in violation of a departmental work rule or a civil service rule or regulation. By way of example only, reasonable suspicion may be based upon any of the following:
(1) Observable phenomena, such as direct observation of drug or alcohol use or the physical symptoms or manifestations of being impaired by, or under the influence of, a drug or alcohol.
(2) A report of on-duty or sufficiently recent off-duty drug or alcohol use provided by a credible source.
(3) Evidence that an individual has tampered with a drug test or alcohol test during employment with the State of Michigan.
(4) Evidence that an employee is involved in the use, possession, sale, solicitation, or transfer of drugs or alcohol while on duty, while on the employer's premises, or while operating the employer's vehicle, machinery, or equipment.
Count four is addressed to "follow-up testing" requirements under § 3(a)(3) of Article 52:
Follow-up testing. An employee shall submit to an unscheduled follow-up drug test or alcohol test if, within the previous 24-month period, the employee voluntarily disclosed drug or alcohol problems, entered into or completed a rehabilitation program for drug or alcohol abuse, failed or refused a Preappointment drug test, or was disciplined for violating this rule.
Plaintiffs allege the threat of enforcement of such onerous followup testing violates represented employees' Fourth Amendment privacy rights and deprives them of property without due process.
II. REPRESENTATIONAL STANDING
In moving to dismiss the complaint, defendants first challenge the UAW's standing to enforce personal civil rights under 42 U.S.C. § 1983. This issue is controlled by Knox County Educ. Association v. Knox County Bd. of Educ., 158 F.3d 361, 379 n. 24 (6th Cir. 1998), where the Sixth Circuit observed that "a union does have representational standing to challenge the constitutionality of an alcohol and drug testing policy on behalf of its members." Accordingly, the Court rejects defendants' standing argument.
III. SUBJECT MATTER JURISDICTION
A. Ripeness
Even if plaintiffs might be deemed to generally have representational standing to invoke the Court's jurisdiction, defendants contend the Court lacks subject matter jurisdiction over the claims asserted in counts two, three and four because they are not "ripe." In counts two, three and four, plaintiffs complain of the "threat" posed by Article 52 discipline, reasonable suspicion, and follow-up testing provisions. Because plaintiffs have failed to name any represented employee who has actually been subject to discipline or testing under any of these provisions, defendants contend the UAW's claims are premature.
The UAW's representational standing "does not eliminate or attenuate the constitutional requirement of a case or controversy." Warth v. Seldin, 422 U.S. 490, 511 (1975). In order to satisfy the case or controversy requirement, the UAW "must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit." Id. at 511 (emphasis added). If a claim is not ripe for review, then there is no actual case or controversy and the Court lacks subject matter jurisdiction. Dixie Fuel Co. v. Comm'r of Social Security, 171 F.3d 1052, 1057 (6th Cir. 1999); Bigelow v. Michigan Dep't of Natural Resources, 970 F.2d 154, 157 (6th Cir. 1992). Ripeness requires that the injury in fact be "certainly impending." National Rifle Ass'n of America v. Magaw, 132 F.3d 272, 280 (6th Cir. 1997). "Ripeness separates those matters that are premature because the injury is speculative and may never occur from those that are appropriate for the court's review." Id.
The Supreme Court defined the purpose of the ripeness doctrine as follows:
[I]ts basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effect felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.Abbot Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967). See also Dixie Fuel, 171 F.3d at 1057 (stating that the ripeness determination requires consideration of fitness for judicial decision and hardship to the challenging party).
In response to defendants' ripeness challenge, plaintiffs have failed to demonstrate that the claims asserted in counts two and three are ripe. In connection with count two, plaintiffs have not alleged that any represented employee has been subject to discipline, unfair or otherwise, for having had a breath alcohol concentration equal to or grater than 0.02. Absent the imposition of some sort of discipline, plaintiffs are unable to allege an actual injury cognizable as a violation of privacy or due process rights. The mere possibility of discipline is insufficient to render the claim justiciable — especially where the nature of the discipline that might be imposed is left to the discretion of the employer. only when the nature of the infraction and the discipline are defined can the reasonableness of any resulting invasion of privacy or deprivation of property be evaluated. In other words, until discipline is imposed, there is no injury in fact that poses a claim fit for judicial decision. Neither can the mere threat, the hypothetical possibility, that unreasonable discipline might be imposed for a technical violation of the 0.02 standard be deemed to result in the sort of hardship to plaintiffs' members as might render the count two claim justiciable.
Plaintiffs, response to the ripeness challenge is limited to their count one claim, as they argue that random drug and alcohol testing has commenced and is presently infringing members' privacy rights. Defendants do not contest the ripeness of count one.
The same analysis applies with equal force to plaintiffs' count three claim challenging the "reasonable suspicion testing" authorized by Article 52. The mere possibility that a supervisor may abuse the discretion inherent in determining the reasonableness. of suspicion — despite the limitations imposed by the Article 52 definition of reasonable suspicion, and despite the additional requirements that reasonable suspicion testing be first documented and approved by the drug and alcohol testing coordinator (see Article 52, § 3(b)(4)) — is insufficient to confer ripeness.
Absent an alleged instance of enforcement and an actual injury (in the form of an allegedly unreasonable search), plaintiffs' count three claim fails to satisfy both the "fitness" and the "hardship" elements of ripeness.
Count four challenges the Article 52 follow-up testing provision. This provision requires any covered employee — not just those in test-designated positions — to submit to unscheduled drug or alcohol testing (not more than six times per year) for a period of two years after any of the following occurrences: (a) the employee's voluntary disclosure of drug or alcohol problems; (b) the employee's entry into or completion of a drug or alcohol abuse rehabilitation program; (c) the employee's failure or refusal to submit to a preappointment drug test (a prerequisite to appointment to a test-designated position); or (d) the employee's having been disciplined for violating any provision of Article 52.
This provision is undisputedly in effect currently, although plaintiffs have failed to name any represented employee specifically impacted by it. It purports, on its face, to apply automatically on the occurrence of any one of the listed events.
That is, its requirement that the employee submit to unscheduled drug and alcohol testing is not triggered by or otherwise dependant on the exercise of the employer's discretion. Plaintiffs' count four claim, to the extent it rests on Fourth Amendment privacy interests, thus presents a "cleaner" legal question which appears not to require a fuller factual development than is now available to enable fair and effective judicial review. Moreover, inasmuch as the present threat of follow-up testing may work to deter represented employees from addressing their drug or alcohol problems in a rehabilitation program, it may pose hardship if judicial review is denied. For these reasons, the Court concludes that plaintiffs' count four claim for violation of Fourth Amendment privacy rights is ripe and does present an actual case or controversy.
The same cannot be said, however, of the count four due process claim. This claim has not been well defined. Plaintiffs appear to assert a protected property interest in continued employment. To the extent that discharge from employment represents a potential penalty for violation of the follow-up testing requirement, plaintiffs apparently allege that its enforcement threatens their members with loss of employment under circumstances that could constitute a denial of procedural and/or substantive due process. This mere possibility of discharge under improper circumstances, clearly, is not an actual injury, but a hypothetical one. No injury in fact is "certainly impending." It follows that plaintiffs' count four due process claim is not justiciable.
In sum, then, only the claims contained in counts one and four, asserting privacy interests, survive defendants' ripeness challenge. The claims contained in counts two, three and four, to the extent count four asserts a due process claim, will be dismissed for lack of a justiciable case or controversy.
B. Rooker-Feldman Doctrine
Defendants also contend the Court lacks jurisdiction over this matter under the Rooker-Feldman Doctrine. The Rooker-Feldman Doctrine is the product of two Supreme Court decisions, Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). These rulings combine principles of abstention and res judicata and stand for the proposition that the inferior federal courts lack jurisdiction to review a state court decision of an adjudicatory nature. United States v. Owens, 54 F.3d 271, 274 (6th Cir. 1995). A party raising a federal question already litigated in state court must appeal the state court decision through the state system and then directly to the United States Supreme Court. Id.
Here, defendants have not identified any prior state court decision or proceeding that is implicated by plaintiffs' claims. Defendants' creative efforts to cast the Civil Service Commission's adoption of Article 52 as a state court proceeding or as being adjudicatory in nature are unavailing. The Civil Service Commission's adoption and imposition of the Article 52 clearly represents the discharge of an administrative function. Therefore , Rooker-Feldman does not bar this Court's review of the instant claims.
IV. ABSTENTION
Defendants also ask the Court to abstain from exercising jurisdiction for prudential reasons. First, they contend the Court should abstain under Younger v. Harris, 401 U.S. 37 (1971), and its progeny. Pursuant to Younger, and succeeding cases, it is generally recognized that federal courts must, out of comity and federalism concerns, refrain from enjoining pending state criminal proceedings, as well as pending state civil or administrative proceedings in which important state interests are involved. Ohio Civil Rights Comm'n v. Dayton Christian Schools, 477 U.S. 619, 62628 (1986). Younger abstention has never been extended, however, to encompass state proceedings that are not "judicial in nature." New Orleans Public Service, Inc. v. Council of City of New Orleans, 491 U.S. 350, 369-70 (1989).
Younger abstention has no application in the present case, because again, defendants have not identified any pending state proceeding of a judicial nature. The mere fact that plaintiffs might have sought state judicial review of the Civil Service Commission's administrative action does not foreclose federal court review of plaintiffs' § 1983 claims. See Ohio Civil Rights Comm'n, 477 U.S. at 627 n. 2.
Defendants next contend the Court should abstain pursuant to Burford v. Sun Oil Co., 319 U.S. 315 (1943). The Supreme Court has defined the applicability of Burford abstention as follows:
Where timely and adequate state-court review is available, a federal court sitting in equity must decline to interfere with the proceedings or orders of state administrative agencies: (1) when there are "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar"; or (2) where the "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern."New Orleans Public Service, 491 U.S. at 361, quoting Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 814 (1976).
Here, it appears that plaintiffs could have sought state court review of the Civil Service Commission's action. However, no questions of state law are implicated by plaintiffs' § 1983 claims. Neither does the Civil Service Commission's regulation of the conditions of state employment pose the sort of complex regulatory scheme governing distinctively local concerns that would warrant abstention. "While Burford abstention is concerned with protecting complex state administrative processes from undue federal interference, it does not require abstention whenever there exists such a process, or even in all cases where there is a `potential for conflict.' with state regulatory law or policy." New Orleans Public Service, 491 U.S. at 362. Clearly, the constitutionality of the Article 52 drug and alcohol testing provisions can be assessed without unduly disrupting state efforts to establish a coherent policy. Abstention is not required "merely because resolution of a federal question may result in the overturning of a state policy." Id. at 363, quoting Zablocki v. Redhail, 434 U.S. 374, 380 n. 5 (1978).
Accordingly, defendants' request that the Court abstain from exercising jurisdiction is denied.
V. VALIDITY OF CLAIMS
Defendants contend plaintiffs' complaint fails to state a claim upon which relief can be granted and should be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Defendants' motion under Rule 12(b)(6) tests the legal sufficiency of the complaint. The Court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the plaintiffs. Forest v. United States Postal Service, 97 F.3d 137, 139 (6th Cir. 1996). The Court is not, however, required to accept summary allegations or unwarranted legal conclusions. Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999). Dismissal is appropriate only if it appears beyond doubt that plaintiffs can prove no set of facts consistent with their allegations that would entitle them to relief. Id.
The parties acknowledge that the viability of plaintiffs' Fourth Amendment claims is determined with reference to the Supreme Court's ruling in Chandler v. Miller, 520 U.S. 305 (1997). In Chandler, the court recognized that drug and alcohol testing of employees "intrudes upon expectations of privacy that society has long recognized as reasonable." Id. at 313, quoting Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 617 (1989). Government-ordered intrusions of this type are "searches" under the Fourth Amendment and must therefore be "reasonable" to satisfy constitutional muster. Chandler, 520 U.S. at 313. Ordinarily, such searches must be based on individualized suspicion of wrongdoing to be reasonable. Id. However, particularized exceptions have been recognized based on "special needs, beyond the normal need of law enforcement." Id., quoting Skinner, 489 U.S. at 619. Defendants contend the drug and alcohol testing required under Article 52 is justified by such "special needs." Defendants argue that suspicionless random testing is authorized on a carefully tailored basis only for test-designated positions, the duties of which pose significant health and safety concerns (i.e., employees who are required or permitted to carry a firearm; employees who provide direct health care to persons in the care or custody of the state; employees who have regular unsupervised contact with prisoners, probationers or parolees; and employees who have unsupervised access to controlled substances); and for employees with a documented history of drug or alcohol problems or drug or alcohol testing problems.
Defendants' proffered "special needs" may ultimately be deemed to justify the testing authorized by Article 52, but they do not warrant dismissal of plaintiffs' surviving claims at this stage. As the Supreme Court has recently made clear, it is not for the Court to "simply accept the state's invocation of a `special need.'" Ferguson v. City of Charleston, ___U.S.,___ 2001 WL 273220 *6 (U.S., March 21, 2001). Rather, the Court must undertake a "close review" of the scheme at issue and "all available evidence," id. at *6-7, to determine whether the proffered special need is "substantial — important enough to override the individual's acknowledged privacy interest." Chandler, 520 U.S. at 318. The Court "must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." Id. at 314. See also Knox County Education Ass'n v. Knox County Bd. of Educ., 158 F.3d 361, 373 (6th Cir. 1998).
In deciding defendants' Rule 12(b)(6) motion, the Court assesses the facial sufficiency of the complaint and views the allegations in the light most favorable to the plaintiffs. Evaluating plaintiffs' allegations under the standards established in Chandler, the Court can hardly hold that plaintiffs can prove no set of facts consistent with their allegations that would entitle them to relief. Defendants' Rule 12 (b)(6) motion is simply not the appropriate vehicle for evaluating the constitutionality of Article 52 as a matter of law. The Court can undertake the required context-specific inquiry, closely examining the competing private and public interests involved, only after the record has been developed. Then, defendants' motion can be renewed as one for summary judgment under Fed.R.Civ.P.56.
Accordingly, defendants' motion to dismiss plaintiffs' remaining Fourth Amendment claims for failure to state a valid claim will be denied. An order consistent with this opinion shall issue forthwith.
ORDER OF PARTIAL DISMISSAL
In accordance with the Court's written opinion of even date,
IT IS HEREBY ORDERED that defendants' motion to dismiss is GRANTED in part and DENIED in part; and
IT IS FURTHER ORDERED that the claims asserted in counts two and three of plaintiffs' first amended complaint, as well as the claim for deprivation of property without due process asserted in count four, are DISMISSED for lack of justiciability; and
IT IS FURTHER ORDERED that defendants' motion to dismiss is, with respect to the Fourth Amendment claims asserted in counts one and four, DENIED.