Case: Petition for certiorari

Date: Jan. 13, 2014

Case type: Fourth Amendment

Court: U.S. Supreme Court

Author of opinion below: Judge Stanley Marcus

Lawyers for petitioner: William S. Consovoy, Thomas R. McCarthy and Brett A. Shumate, Wiley Rein and George Mason University School of Law Supreme Court Clinic, Washington

Lawyers for respondent: Shalini Goel Agarwal, Miami, and Steven R. Shapiro, New York, American Civil Liberties Union

Panel: Marcus and Judges Susan H. Black and Eugene E. Siler Jr., sitting by designation

Originating court: U.S. Court of Appeals for the Eleventh Circuit

With less than a decade of experience under her belt, ACLU staff attorney Shalini Agarwal has a shot at appearing before the U.S. Supreme Court. She said the prospect provokes "equal parts dread and excitement."

But she doesn't want to go there. She likes the opinion out of the U.S. Court of Appeals for the Eleventh Circuit that she'll have to defend if the high court grants certiorari.

"The Eleventh Circuit got it exactly right," said Agarwal, who is based in the ACLU's Miami office. The court effectively suspended mandatory, suspicionless drug-testing of Florida state employees until a lower court determines which workers must be tested and who can decline under the Fourth Amendment.

Gov. Rick Scott, arguing the scourge of drug addiction gives the state the unfettered right to demand random testing of all state employees, has filed a petition seeking the justices' review of the Eleventh Circuit's May 29, 2013, decision.

"Illegal drug use in the workplace increases financial costs, creates safety hazards and impairs productivity," lawyers for Scott wrote in the cert petition.

Much more is involved than guaranteeing state agencies have drug-free workplaces.

The Eleventh Circuit deemed Florida's drug-testing scheme broader than any sanctioned by appellate courts. If Scott prevails in the high court, other states would follow the leader.

"That would be a sea change," Agarwal said.

Significant Stakes

Also, if the Supreme Court approves the governor's sweeping form of worker testing, he's expected to make another run at welfare recipients. The Eleventh Circuit rejected testing as a condition of getting public assistance three months before deciding this case.

At every turn, the ACLU has taken an active role in opposition.

"Our position is that the poor have the same Fourth Amendment rights that everyone else does, a zone of privacy and not a presumption of some kind of criminality, and so you shouldn't treat those individuals differently just because they're poor," Agarwal said. "We find it offensive that there's this targeting of the poor."

Two months after taking office in 2011, Scott issued Executive Order 11-58 saying all state agencies under his direction would "provide for pre-employment drug testing for all prospective new hires and for random drug testing of all employees within each agency."

Random testing already had a limited track record in three agencies—corrections, transportation and juvenile justice. The highest positive results, 2.5 percent, came from the Department of Corrections.

Scott's order appeared to cover 85,000 people, or 77 percent of the state's workforce. Urinalysis was the chosen method.

Before the order was implemented, the union representing most state employees filed suit in the Southern District of Florida seeking an injunction to prevent the testing. Court papers cited the Fourth Amendment prohibition of unreasonable searches and seizures.

The complaint challenged the testing of workers who are not suspected of drug abuse, as well as workers who hold jobs that do not raise safety concerns. For example, operators of heavy machinery would have a harder time making an argument against testing, and the union didn't even try in its motion for summary judgment.

To support its own push for summary judgment, the state posited alternative grounds: Individuals consent to the test, making it constitutional. Or the state's special need for a safe, productive and efficient workplace justifies suspicionless drug testing and renders it constitutional.

Creating Categories

U.S. District Judge Ursula Ungaro in Miami granted the union's summary judgment motion.

She said the public interests the state cited were "notably broad and general compared to the interests that the Supreme Court … held to justify suspicionless drug testing."

After weighing those public concerns against the employees' privacy rights, she ruled in favor of the employees, finding the governor's order unconstitutional.

On appeal, the Eleventh Circuit panel vacated Ungaro's ruling, indicating she had used too big a broom, and remanded the case so she could find a smaller one.

"The state has fallen far short of justifying the breathtaking scope of the executive order," Judge Stanley Marcus wrote for the panel. "On the other hand, the union has presented a serious and substantial claim that large swaths of the EO's applications are unconstitutional. But we cannot affirm a judgment and injunction that forbid both constitutional and unconstitutional conduct."

The ongoing work of separating employees into safety-sensitive and nonsensitive job categories has fallen to the union.

"It's an enormous task," said Agarwal, who has spent 100 hours on the project, with no end in sight—but a mid-February deadline. The overall number of covered employees has been whittled down to 34,000, and "we're trying to see if there are any employees we can agree on."

The Eleventh Circuit said the burden of discovery falls to the state, but the state maintains all workers should be tested, effectively shifting the burden to the union.

According to Agarwal, the governor should have completed all the pruning and categorizing before issuing his order. "We're frustrated about how this process is going."

Agarwal would not speculate on the existence of any hidden agenda on Scott's part, but others have.

Scott is a co-founder of Solantic LLC, a chain of 32 urgent care centers that offer drug testing. Just before he took office in January 2011, the governor moved his $62 million in shares to a revocable trust, making his wife the controlling shareholder of the privately held corporation.

Scott's actions may be questionable ethically, but they are legal in Florida.

In a 2011 interview with the Palm Beach Post, Scott spokesman Brian Hughes called any perception of a conflict of interest "baseless and incorrect."