ELIZABETH H. DOLE, SECRETARY OF TRANSPORTATION, ET AL., APPLICANTS
V. RAILWAY LABOR EXECUTIVES' ASSOCIATION, ET AL.

   No.

   In the Supreme Court of the United States

   October Term, 1985

   Application to Vacate Order Granting a Stay Pending Appeal to the
United States Court of Appeals for the Ninth Circuit.

   Application to Vacate Order Granting a Stay Pending Appeal to the
United States Court of Appeals for the Ninth Circuit.

   Pursuant to Rules 43 and 44 of the Rules of this Court and 28
U.S.C. 1651(a), the Solicitor General, on behalf of Elizabeth H. Dole,
Secretary of Transportation, and John H. Riley, Administrator, Federal
Railroad Administration, applies for an order vacating a stay entered
by the United States Court of Appeals for the Ninth Circuit pending
appeal to that court.  The court of appeals' order has enjoined the
implementation of a comprehensive nationwide regulatory program
designed to prevent railroad accidents and resulting injuries and
deaths that are caused by the impairment of railroad employees'
abilities due to alcohol and/or drug use.  The court's order
eliminates the program's deterrent to drug and alcohol use -- and
thereby endangers the safety of rail operations -- for at least the
next several months, despite the fact that the district court upheld
the regulations in all respects.

   The regulations (50 Fed. Reg. 31508, 31568-31579 (to be codified as
40 C.F.R. Part 219) (Attachment A)) prohibit using, possessing, or
being under the influence of alcohol or drugs while on the job, and
they require that the train crew be tested for the presence of those
substances as soon as possible after a serious accident.  The
regulations also authorize railroad supervisors to require a breath or
urine test of an employee when he is believed to have played a causal
role in certain less serious accidents, or has been directly involved
in major rule violations, or when there is reasonable cause to believe
that he is under the influence of alcohol or drugs.  The purpose of
the regulations is to detect alcohol and drug abuse among railroad
operating employees, to reveal the true extent of the problem, and,
most important, to save lives by deterring railroad employees from
operating trains while impaired by alcohol or drugs.

   After extensive rulemaking proceedings and full litigation in the
district court, the regulations were scheduled to go into effect on
January 6, 1986.  The district court granted the government's motion
for summary judgment on November 26, 1985.  On the afternoon of
January 3, 1986, the court of appeals, by a 2-1 vote, entered an order
staying the implementation of the regulations pending appeal.

                               STATEMENT

   1. The regulations at issue here are the product of an extensive
investigation and rulemaking proceeding conducted by the Administrator
of the Federal Railroad Administration, who has been delegated by the
Secretary of Transportation to implement the federal railroad safety
laws.  An Advance Notice of Proposed Rulemaking was issued on June 30,
1983 (48 Fed. Reg. 30723), and a Notice of Proposed Rulemaking was
issued on June 12, 1984.  Five days of public hearings were held
across the country on the proposed rule and extensive comments were
received and considered.  The final rule was promulgated on August 2,
1985, with the proviso that it would become effective on November 1,
1985.

   The rulemaking proceeding demonstrated that the use of alcohol and
other drugs by railroad operating personnel is a serious problem that
requires immediate attention.  The comments on the proposed
regulations indicated general agreement that "alcohol and drug use
does occur on the railroads with unacceptable frequency." 50 Fed. Reg.
31514.  A 1978 study found that 23% of railroad operating personnel
were "problem drinkers" and that 5% of workers got "very drunk" on
duty at least once during the study year.  Id. at 31515.  While the
rail industry has long had its own prohibition on use, possession, or
being under the influence of alcohol while on duty ("Rule G"), the FRA
found that enforcement of Rule G "has been hampered by inadequate
means of detection, limited incentives for self-referral, and the
reluctance of coworkers to identify the offender.  Accordingly, most
violations do not come to the attention of management and the intended
deterrent effect of the (Rule G) is compromised." Id. at 31527.

   The FRA found that this problem of drug and alcohol abuse has had
significant consequences with respect to safety in the railroad
industry.  Available data showed that between 1975-1984 there were 48
railroad accidents or incidents /1/ in which it was proven that
alcohol or drug use by an employee either played a causal role or
materially increased the severity;  these events resulted in 37
fatalities, 80 injuries, $20.4 million in railroad property damage,
and $13.8 million in environmental clean-up costs.  50 Fed. Reg.
31517.  The accidents in which alcohol or drug use was proven tended
to be the most severe;  for example, 15% of the fatalities occurring
from rail accidents during a recent 32-month period resulted from
accidents in which alcohol use was proven to be a cause.  Id. at
31525.  And one alcohol-related derailment in Livingston, Louisiana,
in 1982 resulted in a life-threatening release of hazardous materials
causing the evacuation of 2,700 people.  Id. at 31520, 31525.  The FRA
believes that these statistics concerning accidents proven to be
caused by alcohol and drug abuse greatly understate the problem.
These data were obtained primarily from reports required to be
submitted by the railroads;  in the absence of any contemporaneous
substance testing, an accident could be ascribed to alcohol or drug
abuse only if the symptoms of such abuse were obvious to the observer.
 /2/

   2. The regulatory program promulgated by the FRA addresses this
problem in several ways.  It generally prohibits covered employees
(defined in Section 219.5(d), (e)) from using, possessing, or being
under the influence of alcohol or drugs while on the job (Subpart B).
It establishes a procedure for employees with problems to receive
voluntary treatment and counseling without fear of dismissal (Subpart
E).  And it requires urine testing for drugs of all final applicants
for covered positions (Subpart F).

   The provisions called into question here by the plaintiffs concern
testing of employees.  Subpart C provides that the railroad must
attempt to test (through blood and urine samples) all covered
employees involved in serious accidents.  These are defined as:  (1) a
train accident that involves a fatality, a release of hazardous
materials that causes an injury or evacuation, or $500,000 in damage;
(2) a collision resulting in injury or $50,000 in damage;  or (3) a
train incident that fatally injures any on-duty railroad employee.
The testing is to be performed as soon as possible after the accident
at an independent medical facility.  An employee cannot be forced to
undergo these tests, but, if he refuses, the rule requires the
railroad to remove him from his operating job for a period of nine
months.  Subpart D authorizes -- but does not require -- the railroad
to subject an employee to a breath or urine test (but not a blood
test) in three circumstances (Section 219.301(b), (c):  (1) if a
supervisor (or, in the case of a urine test, two supervisors) has a
reasonable, articulable suspicion that the employee is under the
influence of alcohol or drugs;  (2) if the employee is involved in an
accident or incident that must be reported to the FRA and the
supervisor has reasonable suspicion that the employee's actions
contributed to the accident;  and (3) if the employee is directly
involved in a violation of one of a select few of the railroad's most
important operating rules, which are listed in the regulations
(Section 219.301(b)(3)).

   3. The final regulations were promulgated on August 2, 1985, and
scheduled to go into effect on November 1, 1985.  On October 28, 1985,
a request for reconsideration was denied in substantial part.  On
October 31, 1985, the plaintiffs, an association of national railway
unions and various local unions, brought suit in the United States
District Court for the Northern District of California to enjoin the
implementation of the regulations on statutory and constitutional
grounds.  /3/ The court entered a temporary restraining order the next
day.  Afer a hearing, the district court granted the government's
motion for summary judgment on November 26, 1985 (Tr. 59-67;
Attachment C).  On December 9, 1985, the court dissolved the temporary
restraining order and denied the plaintiffs' motion for an injunction
pending appeal.  Thereafter, the FRA announced a new effective date of
January 6, 1986, thereby giving the rail industry some time to prepare
anew for implementation and allowing for resolution of plaintiffs'
expected motion to enjoin the regulations.  50 Fed. Reg. 50888.  On
December 16, the plaintiffs applied to the Ninth Circuit for an
injunction, and the government filed its opposition on December 19.

   On January 3, 1986, the last business day before the regulations
were scheduled to go into effect, the court of appeals (per Nelson and
Reinhardt, JJ.), by a 2-1 vote, issued a one sentence order
(Attachment B) granting plaintiffs' "motion for a stay pending
appeal," citing to its decision in Lopez v. Heckler, 713 F.2d 1432,
1535, rev'd, 463 U.S. 1328 (Rehnquist, Circuit Justice).  /4/ Judge
Wiggins dissented.

                               ARGUMENT

   The court of appeals' extraordinary action of enjoining the
implementation of an important, carefully crafted, nationwide
regulatory program without giving any basis for such action warrants
immediate intervention by this Court.  While the Court does not
lightly grant relief when a matter is pending before a court of
appeals (see Atiyeh v. Capps, 449 U.S. 1312, 1313 (1981) (Rehnquist,
Circuit Justice)), it has not hesitated to act when a court of appeals
has disturbed the status quo by erroneously enjoining the enforcement
of valid regulations.  See, e.g., Office of Personnel Management v.
AFGE, No. A-5 (July 5, 1985) (Burger, Circuit Justice);  Coleman v.
PACCAR, Inc., 424 U.S. 1301 (1976) (Rehnquist, Circuit Justice);
Morton v. Quaker Action Group, 402 U.S. 926 (1971).  The standard for
the issuance of such relief was summarized in PACCAR, 424 U.S. at
1304:

      (A) Circuit Justice has jurisdiction to vacate a stay where it
      appears that the rights of the parties to a case pending in the
      court of appeals, which case could and very likely would be
      reviewed here upon final disposition in the court of appeals,
      may be seriously and irreparably injured by the stay, and the
      Circuit Justice is of the opinion that the court of appeals is
      demonstrably wrong in its application of accepted standards in
      deciding to issue the stay.

   This standard is plainly satisfied here.

   The regulations, which come to the court with a presumption of
validity, have already been upheld by the district court, and the
court of appeals has given no hint as to where the district court
erred.  The court of appeals' injunctive action is egregiously
erroneous;  the balance of harms tips sharply in favor of the
immediate implementation of the regulations, and there is little
prospect that plaintiffs will prevail on the merits.  Moreover,
because of the importance of the issue and the fact that a reversal by
the court of appeals would place it in direct conflict with the
Seventh Circuit's decision in Division 241 Amalgamated Transit Union
v. Suscy, 538 F.2d 1264, cert. denied, 429 U.S. 1029 (1976), it is
likely that this Court would grant certiorari in the event the
plaintiffs prevail on their appeal.  While the plaintiffs' appeal is
pending, the court of appeals' unjustified order exposes the public to
a significant additional risk of death and injury from rail accidents
caused by employees under the influence of alcohol or drugs.  In these
circumstances, the Court should vacate that order, which will remain
in force for at least several months unless this Court acts.  /5/

   1. It is manifest that the balance of harms weighs strongly in
favor of immediate implementation of the regulations and that for that
reason alone the court of appeals erred in enjoining them.  The most
severe injury that could conceivably occur to plaintiffs if the
regulations are permitted to go into effect is that some employees
could be induced to submit to a blood test that they would have been
entitled to avoid if it is ultimately held that the regulations
violate the Fourth Amendment.  While we do not dispute that the
drawing of blood may reasonably be viewed as a mildly unpleasant
experience that a person would prefer to avoid, this Court has
recognized that "(s)uch tests are a commonplace in these days of
periodic physical examinations * * * and that for most people the
procedure involves virtually no risk, trauma, or pain." Schmerber v.
California, 384 U.S. 757, 771 (1966).  In short, the possibility of
having to undergo an unnecessary blood test is a thin thread on which
to hand a decision enjoining implementation of an important,
nationwide safety regulatory program.  Moreover, the number of
employees subject to this testing would be relatively few because only
employees involved in the serious accidents identified in Subpart C
(estimated at 150-200 per year (50 Fed. Reg. 32543)) would be
affected.  And even these employees would not be forced to undergo the
tests, although they would be subject to disciplinary action if they
refused.

   The "authorized testing" of Subpart D would result in even less
injury.  The breath and urine tests authorized under that Subpart are
not invasive at all and cannot be characterized as anything more than
the most minimal of intrusions.  And, again, the only employees tested
would be those whose job performance -- judging from their direct
involvement in the incidents specified in the regulation -- has given
rise to questions about their fitness or those reasonably suspected of
being under the influence of alcohol or drugs.

   On the other hand, the important government and public interest in
allowing the regulations to go into effect immediately is compelling.
An extensive administrative investigation has revealed that numerous
rail accidents and fatalities have been caused by alcohol or drug use
by operating personnel.  Implementation of the regulations will help
identify employees who might contribute to such accidents in the
future and, more generally, create a strong deterrent to the use of
alcohol or drugs on the job that will significantly enhance railroad
safety without subjecting anyone to tests.  In a very real sense, the
order entered by the court of appeals may yield death and destruction
in the railroad industry that could be avoided if the order is
vacated.

   The court of appeals gave no clue as to how it balanced the
hardships here.  We submit, however, that there is no rational
justification for treating the possibility of a blood or urine test --
performed under strict safeguards and only in certain specified
situations -- as outweighing the possibility of death or injury due to
the malfeasance of a railroad employee working while under the
influence of alcohol or drugs.

   2. In our view, the tremendous imbalance between the serious
irreparable harm done to the public interest in rail safety by the
court of appeals' order on the one hand and the extremely limited
effect on the plaintiffs of allowing the regulations to go into effect
on the other is alone sufficient to warrant vacating the court's
order.  In addition, however, the court's order cannot be supported by
reference to the other relevant factor for issuing a stay or an
injunction.  There is little likelihood that the plaintiffs will
prevail on the merits of their appeal.

   A testing program essentially indistinguishable from this one was
upheld by the Seventh Circuit in Division 241 Amalgamated Transit
Union v. Suscy, supra.  There, the Chicago Transit Authority had
instituted a program under which bus and train operators were required
to submit to blood and urine tests when they were involved in a
serious accident or when two supervisors suspected them of being under
the influence of liquor or drugs.  The court of appeals found that
this program was "reasonable" within the meaning of the Fourth
Amendment because the affected public interest in the safety of mass
transit outweighed any infringement on individual interests occasioned
by the testing.  538 F.2d at 1267.  This conclusion is clearly
correct.

   The touchstone of the Fourth Amendment is "reasonableness." Whether
a particular search or seizure is reasonable is assessed by
"balanc(ing) the nature and quality of the intrusion on the
individual's Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion." United
States v. Place, 462 U.S. 696, 703 (1983).  Here, the intrusion on the
individual's interests is minimal;  the most severe intrusion possible
is a "safe, painless, and commonplace" (South Dakota v. Neville, 459
U.S. 553, 562 (1983)) blood test, and even that may occur only when
the employee has been involved in a serious accident involving loss of
life or major property damage.  On the other hand, the intrusion is
justified by a paramount government and public interest in rail
safety.  The regulations are narrowly drawn to deal effectively with a
recognized safety problem that has been proven to have led to 37
fatalities in recent years and is suspected of causing more.  It is
surely reasonable for employees who work in an industry as imbued with
public safety concerns as the rail industry to be expected to submit
to a blood test when they have been involved in a serious accident.

   In their papers in the court of appeals the plaintiffs sought to
avoid the manifest reasonableness of the regulations by arguing that,
under the Fourth Amendment, testing for alcohol and drugs is
inherently unreasonable in the absence of probable cause and a
warrant.  It is true, of course, that certain types of searches
normally require probable cause to suspect criminal activity and a
warrant, notably the traditional search for evidence of a crime where
a suspect is singled out for investigation.  We do not dispute that
traditional probable cause is required when a blood test is taken in
this individualized criminal investigation context.  See Schmerber v.
California, supra.  But it is equally true that the warrant and
probable cause requirements do not apply to every intrusion that is
covered by the Fourth Amendment.  This point was cogently explained by
this Court in Delaware v. Prouse, 440 U.S. 648, 653-655 (1979)
(footnotes omitted):

      The essential purpose of the proscriptions in the Fourth
      Amendment is to impose a standard of "reasonableness" upon the
      exercise of discretion by government officials, including law
      enforcement agents, in order "'to safeguard the privacy and
      security of individuals against arbitrary invasions. . . .'"
      Marshall v. Barlow's, Inc., 436 U.S. 307, 312 (1978), quoting
      Camara v. Municipal Court, 387 U.S. 523, 528 (1967).  Thus, the
      permissibility of a particular law enforcement practice is
      judged by balancing its intrusion on the individual's Fourth
      Amendment interests against its promotion of legitimate
      government interests.  Implemented in this manner, the
      reasonableness standard usually requires, at a minimum, that the
      facts upon which an intrusion is based be capable of measurement
      against "an objective standard," whether this be probable cause
      or a less stringent test.  In those situations in which the
      balance of interests precludes insistence upon "some quantum of
      individualized suspicion," other safeguards are generally relied
      upon to assure that the individual's reasonable expectation of
      privacy is not "subject to the discretion of the official in the
      field," * * *.

   It is clearly inappropriate to require individualized probable
cause and a warrant to conduct the testing involved here, and the
regulations contain more than adequate safeguards to assure that
employees' privacy is protected "against arbitrary invasions" and that
employees are not subject to testing "at the unbridled discretion of *
* * (the responsible) officials." Delaware v. Prouse, 440 U.S. at 654,
661.

   The post-accident testing mandated by the regulations (Subpart C)
is not a search for evidence based on an individualized suspicion.
Rather, it is part of a regulatory program designed to promote safety
in the railroad industry, which is heavily regulated in the public
interest.  Such an administrative search, while subject to the Fourth
Amendment, is not governed by the traditional probable cause standard
applicable to the singling out of individuals for a search for
evidence;  rather, it is governed by the "administrative probable
cause" standard described in Marshall v. Barlow's, supra, and Camara
v, Municipal Court, supra.  /6/ If the government interest involved
reasonably justifies the degree of intrusion (as discussed above),
then such an administrative search is permissible "on a showing that
'reasonable legislative or administrative standards for conducting an
. . . inspection are satisfied with respect to a particular
(establishment).'" Barlow's, 436 U.S. at 320 (quoting Camara, 387 U.S.
at 538).  Here, the regulations specify in detail the circumstances
under which the tests must be conducted -- a defined class of serious
accidents -- and it cannot seriously be suggested that these
circumstances are not reasonable ones in which to require testing.
Clearly, the tests satisfy the standards for administrative searches.
/7/

   There is absolutely no merit to plaintiffs' suggestion that the
testing contemplated by the regulations requires a warrant.  Even if
probable cause in the criminal law sense were required, it is clear
that, because the evidence of alcohol or drugs in the blood quickly
dissipates, exigent circumstances exist in this context that make
obtaining a warrant not feasible.  See Schmerber v. California, 384
U.S. at 770-771.  In any event, there is no need here for a magistrate
to assess whether a particular test is part of a "neutral * * *
administrative plan" of inspection (Barlow's, 436 U.S. at 321);  the
criteria for identifying the class of employees to be tested are
published in the regulations and they are indisputably neutral.  See
generally United States v. Martinez-Fuerte, 428 U.S. 543, 564-566
(1976).

   Moreover, no employee is forced to submit to testing, although
employees are subject to disciplinary action for refusing to do so.
And, of course, employees are exposed to the possibility of testing
only if they work in the railroad industry.  When an employee chooses
to work in a job that so greatly implicates the public safety, it is
not unreasonable for him to accept, as a condition of that employment,
the possibility that he will be required to submit to a blood test in
the event he is involved in a serious accident.  /8/ The regulations
(Section 219.11) explicitly put an employee on notice that his
remaining in such employment is an implied consent to that limited
intrusion.  Requiring such a consent is a valid regulatory requirement
analogous to requiring a motorist to consent to a blood test in
appropriate cases as a condition of operating his motor vehicle (see,
e.g., South Dakota v. Neville, 459 U.S. at 559;  Mackey v. Montrym,
443 U.S. 1, 3-4 (1979)) or requiring an airlines passenger to submit
to a search as a condition of boarding a plane (United States v.
Davis, 482 F.2d 893, 912-913 (9th Cir. 1973)).  See also Wyman v.
James, 400 U.S. 309 (1971) (receipt of welfare benefits may be
conditioned on consent to home visit).

   The Fourth Amendment challenge to the "authorized testing"
provisions contained in Subpart D is even weaker than the challenge to
the mandatory testing.  /9/ The intrusion involved in these tests
(urine and breath) is truly minimal.  No test can be required at all
absent specific observations or performance failures that rationally
raise questions about the sobriety of the employee or the safety of
his performance.  See Section 219.301.  This scheme clearly satisfies
Fourth Amendment standards.  The validity of the testing based on
performance failures identified in the regulations, viz., a major rule
violation or the employee's contributing role in an accident, follows
a fortiori from the validity of the more severe intrusion of a blood
test upon the occurrence of a specified event (see pages 11-14,
supra).  The other type of authorized testing, viz., that based on a
reasonable suspicion that an employee is presently under the influence
of drugs or alcohol, is also reasonable under the Fourth Amendment
because of its negligible intrusiveness;  breath or urine tests are
equivalent to the sorts of intrusions that this Court has recognized
can reasonably by required on the basis of articulable suspicion that
falls short of probable cause.  See, e.g., New Jersey, v. T.L.O., No.
83-712 (Jan. 15, 1985), slip op. 14;  Terry v. Ohio, 392 U.S. 1
(1968).  /10/

   In sum, the regulatory program involved here is a measured response
to an important safety problem that plainly satisfies the
reasonableness test of the Fourth Amendment.  The court of appeals
manifestly erred in enjoining it.

                              CONCLUSION

   The "stay" issued by the court of appeals should be vacated.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   JANUARY 1986

   /1/ For FRA reporting purposes, a train "accident" is an event
involving on-track equipment that results in railroad property damage
in excess of a periodically updated monetary threshold (currently
$4,900).  A train "incident" is an event involving the movement of
on-track equipment that results in death, a reportable injury, or a
reportable illness, but in which railroad property damage does not
exceed the reporting threshold for train accidents.  See 49 C.F.R.
225.  We will use the term "accident" generally to refer to both types
of events.

   /2/ The Southern Pacific Railroad began its own program of drug and
alcohol testing and has reported that accidents and injuries
attributable to human error dropped by 70% in the year that the
testing was begun.  The FRA did not rely on these figures because it
had not yet had the opportunity to examine the specific procedures
followed by the railroad or the manner in which the data were
analyzed.  50 Fed. Reg. 31514.

   /3/ The plaintiffs' primary claim was that the regulations violate
the Fourth Amendment.  They also claimed a due process violation and
that the regulations violate various statutes.  These latter claims
were summarily dismissed by the district court as without "much merit"
(Tr. 61) and were not addressed by plaintiffs in their papers in the
court of appeals.

   /4/ The court misused the term "stay" in its order.  Because the
district court had ruled in favor of the government there was no order
for the court to stay;  what it did in effect was to enter an
injunction against the implementation of the regulations, which is in
fact the relief that the plaintiffs sought.  Had the district court
entered such an order it would have been required to issue detailed
findings under Fed. R. Civ. P. 65.  The court of appeals, however,
gave no clue as to the basis for its ruling.  It also appears that the
court of appeals has enjoined every part of the new regulatory program
from going into effect even though the plaintiffs' Fourth Amendment
objection goes to the validity only of Subparts C and D.

   /5/ The court of appeals' order states that the appeal is to be
"expedited," but it then provides for the ordinary briefing schedule
contained in Fed. R. App. P. 31(a).  Thus, it will be three months
before the case can even be set for oral argument.  And it may be many
months more until the court of appeals renders its decision.

   /6/ Even in the criminal law context, when an individual is not
singled out for suspicion but instead is searched or seized as part of
a group, the absence of individual stigma suggests that there is less
reason to require the strict criminal probable cause standard.  See
Delaware v. Prouse, 440 U.S. at 663 & n.26;  United States v.
Martinez-Fuerte, 428 U.S. 543, 559 (1976).

   /7/ The plaintiffs argued below that the administrative search
rationale could not apply here because there is no explicit
congressional authorization and because it does not apply to searches
of persons.  There is no support for these supposed limitations on
administrative searches;  indeed, each is inconsistent with
established Ninth Circuit precedent.  See Balelo v. Baldrige, 724 F.2d
753, 764-765, cert. denied, No. 83-1734 (June 18, 1984) (en banc)
(upholding regulation requiring porpoise fishermen to allow government
observers on boat);  United States v. Davis, 482 F.2d 893, 910-913
(1973) (pre-boarding search of airline passengers).

   /8/ Since 1927, the Federal Aviation Administration has required
pilots and other flight crew members to undergo periodic physical
examinations, which may include blood tests.  See 14 C.F.R. Parts 61,
63, and 67.  The Federal Highway Administration also requires physical
examinations for drivers employed by motor carriers.  49 C.F.R. Part
391.  There is no significant difference for Fourth Amendment purposes
between regularly scheduled fitness examinations and examinations
triggered by neutral criteria relating to the occurrence of specific
events that reasonably call into question the fitness of involved
employees.

   /9/ The contention that the Fourth Amendment applies at all to the
authorized testing turns on the district court's finding that this
testing is "state action" because it is specifically authorized by the
regulations.  This conclusion is questionable.  The rulemaking
proceeding explains that the authorized testing provision was included
because of concern that the Railway Labor Act would be read to prevent
the railroads from imposing such testing unilaterally.  See 50 C.F.R.
31528, 31546, 31552.  The testing nonetheless is not required by the
government, and the employer is free to use or not to use Subpart D
authority.  The government has merely opened the door to allow such
testing.  If the employer does choose to test an individual employee
under the authority conferred by this section, the test occurs only by
private choice and is not governmental action covered by the Fourth
Amendment.  See, e.g., Blum v. Yaretsky, 457 U.S. 991 (1982);  Flagg
Bros. v. Brooks, 436 U.S. 149, 164-166 (1978).

   /10/ The reasonableness of the regulations in this regard is
exemplified by the additional safeguard that urine tests cannot be
required on the basis of reasonable suspicion unless two supervisors
concur that the employee appears to be under the influence of alcohol
or drugs.  See Section 219.301(c)(2).