Case 6:11-cv-01473-MSS-DAB Document 1 Filed 09/06/11 Page 1 of 14 PageID 1

UNITED STATES DISfRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION
LUIS W. LEBRON, Individually and as Class Representative,
Plaintiff,
vs.
DAVID E. WILKINS, in his official capacity as Secretary of the Florida Department ofChildren & Families
Defendant. I

FILED
,JII SEP -6 PH I: 38

VERIFIED COMPLAINT: CLASS ACTION This is a class action for declaratory and injunctive relief, alleging that the Defendant has violated the Fourth Amendment to the U.S. Constitution by requiring Plaintiff and a class of similarly situated persons to provide a urine slUllple for suspicionless drug testing as a condition for the receipt of Tempornry Cash Assistance ("TCA'') benefits to which they would otherwise be entitled. Plaintiff, LUIS W. LEBRON, individually and on behalf of a class of persons similarly situated, seeks declaratory and injunctive relief.
Introduction Plaintiffis a Ihirty-five-year-old honorably discharged veteran of the United States Navy and a single falber; while pursuing a college education, he resides with and cares for his son and disabled mother. In this class action, Plaintiff challenges Florida House Bill 353, codified at Fla. Stat. §414.0652 ("HB 353,,), a law requiring applicants for welfare benefits under the Tempornry Assistance for Needy Families ("TANF") program to provide a urine sample to

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be screened for a variety of substances, and to pay for that screening.' The law was signed
by Florida Governor Rick Scott on May 31, 2011, and has been in effect since July I, 2011. To date, DCF has not finalized rules regarding the implementation and operation HB 353, but is operating under interim, non-final policies.
During a period of record unemployment, Florida has the dubious distinction of being the first state to institute across-the-board, suspicionless drug testing of all applicants for TCA. Despite applicants' dire financial straits, HB 353 also mandates that applicants pay for the testing. HB 353 strips Plaintiff and all TANF applicants of their Fourth Amendment right to fteedom from unreasonable searches by mandating urine testing without any individualized suspicion of drug use. TCA applicants are required to undergo testing not because they are
performing dangerous tasks that require sobriety, or because they are known. or even
suspected drug users or abusers. The State requirea invasive testing of bodily fluids merely because TCA applicants have fallen on hard times and need temporary help to tide them and their children over until they can once again be employed.
Plaintiff and other putative class members are suffering and will sutrer serious violations of their constitutional rights and civil liberties if Defendant continues to enforce
HB 353, as they are being denied and will continue to be denied the temporary cash
assistance they need for day-to-day subsistence, and to which they would be entitled by law but for their refusal to waive their Fourth Amendment rights and to submit to the uniquely intrusive treatment by DCF.

, The State win reimburse those applicants who test negative.

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JURISDICTION AND VENUE
I. Plaintiff's claims arise under the Constitution and laws of the United Slates.
This Court has jurisdiction over theses claims under 28 U.S.C. §§ 1331, 1343(aX3), and authority to grant declaratory and injunctive relief under 28 U.S.C. § 2201-2202 and Fed. R Civ. P. 57 and 65. The fedem! rights asserted by Plaintiff are enforceable under 42 U.S.C. §
1983.
2. Venue is proper in this Court under 28 U.s.C. § 1391(e). Plaintiff resides in
Orlando, within the Middle District of Florida and the Orlando Division where he applied
for, and was denied, assistance because of his refusal to surrender his Constitutional rights.
PARTIES 3. Plaintiff Lebron is a thirty-five year old citizen of the United Slates and resident of Orlando, Orange County, Florida, who has so resided at the times material hereto. Plaintiff is an applicant for TANF assistance, is otherwise eligible to receive temporary cash assistance, is subject to suspicionless drug testing as a result of lIB 353, and has refused to waive his Fourth Amendment rights by submitting to that testing. 4. Plaintiff is a veteran of the United States Anned Forces, having served in the United States Navy from 1999-2003, when he was honorably discharged. 5. A single unmarried father, Plaintiff is the sole custodian of his four-year old
child, who was born in Kissimmee, Osceola County, Florida, on July 9, 2007; the child has continuously resided with Plaintiffsince he was awanted custody in 2009.
6. Plaintiffand his child comprise the fiunily gmup eligible for TCA benefits but have been denied those benefits based on Plaintiff's refusal to waive his constitutional rights.
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7. Plaintiffalso resides with and cares for his disabled mother whose sole soun:<: of income is Social Security Disability benefits.
8. Plaintiff is a student cum:ntly enrolled at the University of Central Florida.
pUISuing a hachelor's degxee in accounting, expects to graduate in December, 2011, and plans to pun;ue advanced degrees in finance.
9. In addition to serving honorably in the United Slates Navy, Plaintiff was previously employed in the private sector as an accounts payable coordinator, an inventory accountant, a customer service associate, a sales cash processor, and a night auditor, and worked as an intern at the Social Security Administration.
10. In March 2011, before HB 353 was enacted, Plaintiff had applied for TeA and other benefits. That initial application was denied because his VA benefits disqualified him for financial reasons. In May 2011, also before HB 353 was enacted, Plaintiff applied for TeA benefits but again did not qualify because residual VA benefits remained, and he was not able to meet work registration requirements because of college attendance. Plaintiff filed a new application in July 2011, and cum:ntly meets all eligibility requirements other
than submitting to drug testing. Comp. Ex. A.' While DCF was initially under the
misimpression that Plaintiff failed to complete the necessary work requirements for TeA, the agency has subsequently confirmed that, except for the drug testing, Plaintiff meets all requirements for temporary cash assistance. Id.
II . Although Plaintiff signed a release by which he consented to the drug testing, to the extent that form could be construed as voluntary and not coerced consent, by this 'Names of the minor child and Plaintiff's mother, as well as Plaintiff's address, phone number and email address have been redacted
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complaint, Plaintiff hereby revokes that consent But for his refusal to waive his Fourth Amendment rights, Plaintiff and his dependent would be receiving, or would be about to receive. temporary cash assistance.
12. Defendant David E. Wilkins is sued in his official capacity as Secretary of DCF, which is an agency of the State of Florida created by statute for the principal purpose of providing social services to Florida "",ideots. DCF is the agency responsible for the eligibility determinations of TANF applicants and distribution of TANF benefits in Florida. As such. under the plain language of liB 353, Defendant Wilkins is responsible for overseeing and enforcing the drug-testing regime mandated by liB 353.
13. At all times material to this action, Defendant Wilkins was acting under color
of state law and his actions constitute state sction. This Complaint seeks prospective injunctive and other equitable and ancillary relief against Defendant Wilkins in his official capacity.
CLASS ACTION ALLEGATIONS 14. Plaintiff brings this action as 0 class sction, pursuant to Rules 23(0) and (bX2) of the Federa! Rules of Civil Procedure, for injunctive and declaratory relief on behalf of himself and 0 class of all persons similarly situated. 15. The Plaintiff Class consists of all individuals residing in Florida who are applying for, or will in the future apply for, Temporary Cash Assistance, Florida's program to distribute TANF benefits, and who will be subject to Defendant's suspicionless drug testing as a result ofliB 353.

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16. According to the DCF website's "Standard Reports," in July 2011 there were 1,107 first-time applicants for TANFtrCA statewide.' All ofth... applicants will be subject to Defendant's suspicioniess drug testing as a result ofllB 353.
17. The requirements of Rule 23(a) and (b)(2) arc met in that the class is so numerous that joinder of all members is impracticable; there arc questions of law and fact common to the clas.; the claims of the representative parties arc typical of the claims of the class; the representative parties will fairly and adequately represent the interests of the class because they arc represented by counsel with extensive experience with class actions and lawsuits alleging constitutional violations, including claims under the Fourth Amendment; and the parties oppo.ing the class bave acted on grounds generally applicable to the class, thereby making appropriate final injunctive and corresponding declaratory relief with respect to the class as a whole.
18. Defendant's policy of requiring suspicioniess drug testing of all TANF applicants in violation of the Fourth Amendment to the U.S. Constitution presents common questions of law and fac~ which predominate over any questions affecting only individual members of the Plaintiff Class and a class action is superior to other available methods for the fair and efficient adjudication ofthe controversy.
19. The prosecution of separate actions by individual members of the Plaintiff Class would create a risk that inconsistent or varying adjudications with respect to individual members of the Plaintiff Class would establish incompatible standards of conduct for the parties opposing the Plaintiff Class.

, Figures for Auguat 2011 are not currently available. 6

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20. Plaintiff Lebron will fairly and adequately protect the interests ofthe membets
of the Plaintiff Class. Mr. Lebron's interests are consistent with and not antagonistic to the interests of the Plaintiff Class. Mr. Lebron bas a strong personal interest in the outcome of
this action and bas no conflicts with mombets of the PlaintiffClass.
21. Plaintiff Lebron and the Plaintiff Class have been damaged as a result of the
Defendant's wrongs alleged herein. 22. A class action is superior to all other available methods for the fair and
equitable adjudication of the controversy between the parties. Plaintiff Lebron is informed and believes, and thereupon alleges, that the interests of members of the Plaintiff Class in individually controlling the prosecution of a separate action is low in that most membets of the Plaintiff Class would be unable individually to prosecute any action at all. Plaintiff Lebron is informed and believes, and thereupon alleges, that most members of the Plaintiff Class wiU be unable to find counsel to represent them. Plaintiff Lebron is informed and
believes, and thereupon alleges, that it is desirable to concentrate aU litigation in one furum. It wiU promote jndicia! efficiency to resolve the common questions of law and fact in one
forum, rather than in multiple courts. TANF and Florida's Temporary Cash Aasistance Program
23. Temporary Assistance for Needy Families, created by the 1996 federal welfare reform law (personal Responsibility and Work Opportunity Reconciliation Act),
awards Florida and the other states with block grants to provide time-limited financial assistance, with work requirements for most recipients. The stated goals of TANF are to
provide assistance to needy families so that children may be csred for in their own homes, to
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promote work and marriage, to prevent out-<lf-wedlock pregnancies, and to encourage twoparent families. 42 U.S.C. § 6Ol.
24. Florida distributes its TANF funds through the Temporary Cash Assistance
Program administered by DCF. The stated goal of this program is to ensure that families are economically self-sufficient so as to require minimal governmental involvement. FIa. Stat. §
414.025. Florida', Program to Drug TestTANF Applicants
25. On May 31, 2011, Florida's legislature enacted HB 353, titled "Drug screening for applicants for Temporary Assistaoce for Needy FamiIi..... The law was signed by the Governor and became effective Iuly I, 201 1. It is currently in effect. Ch. 2011-81 , § 414.0652. A copy of the statute is attached as Ex. B.
26. To date, DCF bas not finalized rules regarding the implementation and operation HB 353, but is operating under interim, non-final policies.
27. The original bill filed on Ianwuy 24, 2011, limited mandatory testing to applicants " who (have] been convicted of a drug felony with the prior 3 years..... However, the bill was amended to extend the reach of the mandatory testing to all applicants regardless
ofknown or suspected drug abuse.'

• While the challenged statute now covers all applicants for TCA. regardless of known or
suspected drug abuse, DCF itselfbas debunked the myth that applicants for temporary public assistance have a high rate of illegal drug use or abuse; the agency recently reported that
since Iuly I, 2011, out of 1,000 TCA applicants, only 2% tested positive for illicit drugs. That percentage is significantly lower than the generally recognized percentage ofillicit drug users in the general population, namely 8.13 percent
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28. Pursuant to the statute, DCF "shall require a drug test . . . to screen each individual who applies for Temponuy Assistance for Needy Families." HB 353 § I. This includes all parents or adult caretakers in the group thst applies for TANF benefits.
29. Under the statute, TANF applicants themselves must pay the cost of the drug testing. Id If the test results are negative, the individual shall be reimbursed in the form of increased TANF benefits. Id § 2(a).
30. The statute requires DCF to give notice to spplicants that drug testing is a
condition of receiving TANF benefits, which they can avoid only if they elect not to spply for benefits. DCF must also advise individuals before they arc tested that they may disclose
any medications that they are taking. Id § 2(a-b).
31. As to the nature of the drug testing, the statute specifies thst it be "consistent
with" § 112.0455, the Drug-Free Workplace Act, HB 353 § I, thst applicants be "assurc[d) a reasonable degree of dignity ... consistent with the state's need to ensure reliability of the sample," Id § 1(2)(f), and that retesting may occur after the initial screening test, Id §
1(2)(g).
32. DCF bas since estsblished thst there may be up to three levels of drug testing:
(I) an initial drug screen, (2) a confirmstory test identifying the drugs prescnt if the initial
screen is positive, and (3) review by a medical review officer if the confirmatory test is positive, in order to verilY whether the drugs arc legitimately used as prescription or over the counter drugs. See DCF Memo re: Implementation of Drug Testing for Temponuy Cash Assistance Applicants and Response to Test R=lIts (6124/11), Ex. C, \-2. DCF offers

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"bundled" screenings for all three levels of testing at DCF-approved locations throughout Florida, for a nmge of prices.
33. HB 353 includes no provisions res1ricting the use of the test results to TANF eligibility or protecting their confidentiality from third parties. In the face of the legislature's silenee on what may be done with the test results, DCF requires that applicants acknowledge
thst any positive drug test results collected for TANF eligibility will be reported to the Florida Abuse Hotline, "for review to initiate an assessment or an offer of services." Ex. D.
34. Pursuant to the statute, DCF must bar individuals who bave tested positive for a controlled substanee from receiving TANF benetits for one year. For those who bave tested positive a second time, DCF must bar them from TANF eligibility for three additional years. Individuals who bave tested positive but bave completed a treatment program may reapply, on a one-time-only basis, for TANF beoetits in six months. HB 353 § 1(2)(h-j).
CLAIMS FOR RELIEF
FOURTH AMENDMENT VIOLATION; 42 U.s.C. § 1983h.w
35. Plointiffincorpomtes by reference all of the foregoing allegotions. 36. The Fourth Amendment provides that "[t]he right of the people to he secure in their persons . .. against unreasonable searches and seizwes, shall not be violated, and no Warnmts shall issue, but upon probable cause ...." Tbe Fourth Amendment's guanmtees are applied to stales through the Fourteenth Amendment 37. The drug-testing regime mandated by HB 353 is a governmental search implicating the Fourth Amendment Tbe Supreme Court of the United States bas held that suspicionless drug testing by the government is an unreasonable search thst violates the
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Fourth Amendmen~ except for a closely guarded category of cases limited to two situations. The first are those implicating substantial public safety concerns. The second are those cases affecting certain students in the public school system. Neither exception to the rule against suspicionless drug screening applies here.
38. HB 353 violates the Fourth Amendment rights of Plaintiff and the Plaintiff Class because it commands Defendant to conduct unreasonable and suspicionless searches of them, and all applicants for TANF benefits, without articulating any governmental interest that would constitute a special need. As such, the law is facially unconstitutional. 42 U.S.C. § 1983 provides Plaintiff and the Plaintiff Class with the vehicle to enfurce their rights under the Fourth and Fourteenth Amendments.
NOTICE OF COMPLIANCE WITH FED. R. CIY. P. 5.I(a} 39. Undersigned counsel for the Plaintiff hereby gives notice of compliance with Fed. R. Civ. P. 5.I(a} and §86.091, Florida Statutes (20lO). The undersigned complied by serving the Attorney General of Florida with a copy of this Complaint by certified mail on September 6, 20 II.

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RELIEF REQUESTED Wherefore, Plaintiffs request the following relief:
a. A declllI1llion that lIB 353 violates the Fourth Amendment of the U.S. Constitution,
as it requires, without any reasonable suspicion of WlIawful drug use, drug screening ofPlaintiffand all applicants for temporary cash assistance; b. A preliminary' and pennanent injlDlction ."yoining Defendant from enforcing lIB 353 and ordering Defendant to process all TANFffCA applications, including Plaintiff's, without regard to the existing requirement that applicants submit to drug testing and provide proofofa negative result; c. An award to Plaintiffof attoroeys' fees and costs pwsuanI to 42 U.S.C. § 1988; and d. Such other and further relief as this Court deems appropriate.

• Plaintiff, on behalf of himself and a class of pemoDS similarly situated, has contemporaneously filed a Motion for Prelimioary Injunction.
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PLAINTIFF.S VERIFI CATION OF FACT UA L ALLEGATIONS
I DECLARE UN DER PENALTY OF PERJURY THAT THE FOREGO ING IS T RUE AND CORRECT.
EXECUTED IN ORLANDO, FLOR IDA 1'1'IIS 2"" DA Y OF SEPTEMBER, 20 11.
~~ LU IS W. LEBRON Dated: September 02. . 20 I I ittcd,
r , mk uvanan@ ac lufl.ore.
Randall C. Marsha ll (Fla. Bar No. 18 1765) Tri al Counsel rma rshall@ac lufl.orc ACLU Foundation of Florida, Inc . 4500 Biscayne Blvd.. Suite 340 Miami.FL 33 137 Tel: (786) 363·2700 Fax: (786) 363-3108 Joh n Dingfe lder (Fla. Bar No. 829129) Tria l Counsel idi ngfcldcr@aclun.org ACLU Foundation of FIOI'idu , Inc. P.O. Box 25477 Tampa. FL 33622 Tel: (8 13) 287- 1698 Fax : (813 ) 289-5694
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Randall C. Berg, Jr. (Fla. Bar No. 318371) RBerg@FloridaJusticelnsti!U1e,org Joshua A. Glickman (Fla. Bar No. 43994) JGlic!anan@FloridaJusticeInstitute,org Shawn A. Heller (Fla. Bar No. 46346) Sheller@FloridaJusticelnstilute.or. Florida Juatio. Institute, Ino, 100 SE Second St, Sle. 3750 Miami, FL 33131·2115 Tel: (305) 358·2081 Fax: (305)358.()910
AIIDmeysfDT P/abr/(ffs
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 Case 6:11-cv-01473-MSS-DAB Document 33 Filed 10/24/11 Page 1 of 37 PageID 572

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

LUIS W. LEBRON, individually and as class representative,
Plaintiff,
v.
DAVID E. WILKINS, in his official capacity as Secretary of the Florida Department of Children & Families,
Defendant. ___________________________________

Case No.: 6:11-cv-01473-Orl-35DAB

ORDER THIS CAUSE comes before the Court upon Plaintiff’s Motion for Preliminary Injunction (Dkt. 2), Motion for Class Certification (Dkt. 16) and Reply to D efendant’s opposition to preliminary injunctive relief (Dkt. 22), along with the State’s responses (Dkt. 19; Dkt. 16) in opposition to Plaintiff’s motions. I. INTRODUCTION The question presented is whether Section 414.0652, Florida Statutes, which requires all applicants for a class of federal welfare benefits to submit to suspicionless drug testing, is constitutional under the Fourth and Fourteenth Amendments. Based on the evidence submitted by the parties on their written submissions and at a hearing on Plaintiff’s Motion for Preliminary Injunction, the C ourt GRANTS Plaintiff’s Motion for Preliminary Injunction against the e nforcement of Section 414.0652 against him until

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this matter is fully adjudicated by the Court. On stipulation of the State that it will not seek to enforce the statute against others similarly situated to Plaintiff until the matter is fully resolved, the C ourt DENIES the Plaintiff’s Motion for Class Certification (Dkt. 16) without prejudice.
II. BACKGROUND Plaintiff in this case, Luis Lebron, applied to the Florida Department of Children and Families (“DCF”) for be nefits under the federal Temporary Assistance for Needy Families (“TANF”) program in July 2011 to support himself and his minor child. Lebron Aff. ¶¶ 5, 14 (Dkt. 2-1 at 1, 2.) Plaintiff has sole custody of his four-year old son and is an undergraduate student at the University of Central Florida with prior military service. Lebron Aff. ¶ 5 (Dkt. 2-1 at 1.) Thoug h Plaintiff attests that he has never used illegal drugs, Section 414.0652 requires him to submit to drug testing as a condition of eligibility for TANF benefits. Lebron Aff. ¶ 19 (Dkt. 2-1 at 3.) Plaintiff refuses to take a drug test because he believes that requiring him to pay for and submit to such a test is unreasonable when there is no reason to believe that he uses drugs. Lebron Aff. ¶ 19 (Dkt. 2-1 at 3.) DCF has stipulated that, as of the date of the initiation of this action, Plaintiff is eligible for TANF benefits, aside from his failure to provide proof that he has tested negative for controlled substances. Ber ner Aff. ¶ 10 (Dkt. 19-1 at 5; Dkt. 19 at 5.) Pl aintiff contends that Section 414.0652 violates his Fourth Amendment right to be free from unreasonable searches, and he seeks a preliminary injunction on behalf of himself and a cl ass of persons similarly situated to enjoin the State from enforcing this statute as a condition for receipt of TANF benefits.
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The TANF block grant program was created by Congress on August 22, 1996, as part of the Personal Responsibility and Work Opportunity Act, 42 U.S.C. §§ 601 et seq. The Act w as intended to prov ide states with resources and flexibility to operate programs designed meet the following goals:
(1) provide assistance to needy families so that children may be cared for in their own homes or in the homes of relatives;
(2) end the dependence of needy parents on government benefits by promoting job preparation, work, and marriage;
(3) prevent and reduce the incidence of out-of-wedlock pregnancies and establish annual numerical goals for preventing and r educing the incidence of these pregnancies; and
(4) encourage the formation and maintenance of two-parent families. 42 U.S.C. § 601(a).
To become eligible to receive TANF funds, a state mus t submit a pl an that outlines how it intends to admi nister its program and se t eligibility requirements for families that apply for assistance. 42 U.S.C. § 602(a). States may generally use federal funds “in any manner that is reasonably calculated to accomplish” the purposes of TANF. 42 U.S.C. § 604(a)(1). As a complement to this provision, 21 U.S.C. § 862b provides: “Notwithstanding any other provision of law, States shall not be prohibited by the Federal Government from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.” 21 U.S.C. § 86 2b. Thus, Congress authorizes states t o test welfare recipients for controlled substances and to sanction those who test positive, but it does
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not provide guidance on the manner in which states are permitted to do so consistent with constitutional mandates.
Florida began disbursing TANF funds in 1996 pursuant to Chapter 414, Florida Statutes. See FLA. STAT. § 414.015 et seq. (1996). After holding hearings on welfare reform, the Florida Legislature enacted legislation in 1998 that required DCF1 to develop and implement a “Demonstration Project” to study and evaluate the “impact of the drugscreening and drug-testing program on employability, job placement, job retention, and salary levels of program participants” and to make “recommendations, based in part on a cost benefit analysis, as to the feasibility of expanding the program,” including specific recommendations for implementing such an expansion. FLA. STAT. § 414.7 0(1)-(5) (1998) (repealed 2004).
In order to car ry out t his mandate, DCF designed the D emonstration Project to test empirically (1) whether “individuals who apply for temporary cash assi stance or services under the state’s welfare program are likely to abuse drugs,” and (2) whether “such abuse affects employment and earnings and use o f social service benefits.” Robert E. Crew, Jr. and Belinda Creel Davis, Assessing the Effects of Substance Abuse Among Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 41 (2003) (Dkt. 22-2 at 2). The Legislature instructed DCF to drug test onl y those individuals whom the department had “reasonable cause to believe” engaged in illegal use of controlled substances. FLA. STAT. § 414.70(1) (1998) (repealed 2004). Thus, to
1 At that time, this agency was known as the Florida Department of Children and Family Services. See FLA. STAT. § 414.70(5)(2) (1998) (repealed 2004).
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gather data on t he likelihood of TANF applicants to use drugs, DCF, working in conjunction with private contractors, screened over eight thousand applicants for welfare benefits between 1999 and 2001 using a written test designed to differentiate between substance abusers and non abusers, regardless of denial or deliberate deception on the part of the test subject. Robert E. Crew, Jr. and Belinda Creel Davis, Assessing the Effects of Substance Abuse Among Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 41- 42, 44 ( 2003) (Dkt. 22-2 at 2- 3, 5). Of those individuals who were screened, 6,462 continued to receive TANF benefits during the relevant timeframe and were determined to be proper subjects of the study. Id. at 44. Based on the results of the screening, 1,447 of the 6,462 TANF applicants were flagged as potential substance abusers and were required to undergo urinalysis. Id. at 45. Onl y 335 o f those individuals subjected to dr ug testing—5.1% of the total population who were screened—tested positive. Id. at 45.
The results of the Demonstration Project confounded the expectations of the researchers, who observed that “evidence of drug abuse in Florida is substantially lower than the percentages reported in other research on this topic.” Id. In fact, the percentage of positive drug tests was so low in comparison to previous studies that the researchers opined that the results “raise some questions about the procedures employed by the State to identify drug use among welfare recipients.” Id. 46. To explain the surprisingly low rate of drug use, the researchers speculated that, as news of the drug testing spread, applicants for TANF benefits took the “opportunity to ‘clean’ their urine” by abstaining from illegal substances for a p eriod prior to applicatio n. Id.
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Notwithstanding the concerns surrounding the methods employed, the concrete scientific evidence gathered clearly undermined the underlying assumption regarding the prevalence of substance abuse among TANF applicants: drug use among the tested TANF population was found to be si gnificantly lower than dr ug use a mong welfare recipients in other national studies. See id. at 45-46. The results also showed significantly lower rates of drug use among this population than the rate of drug use among the population of Florida at large, which was recently estimated at 8.13 percent. (Dkt. 2 at 16 n.4.)
With respect to the second area of inquiry, whether drug abuse affects employment and earnings and use of social service benefits, the researchers found that (1) there is very little difference between the employment rates and earning capacities of Food S tamps, cash assistance, and Medicaid recipients who screened positive for substance abuse and those who did not; and (2) there is also very little difference on these same variables between those who tested positive on a urinalysis and those who did not. Robert E. C rew, Jr. and Bel inda Creel Davis, Assessing the E ffects of Substance Abuse Among Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 47-48 (2003) (Dkt. 22-2 at 8- 9). That is to say, those w elfare recipients who screened and tested positive for the use of illicit su bstances were found to be just as likely to work and just as likely to use social service benefits as those who screened and tested negative.
Overall, the r esearchers concluded that the findings of the pr oject raised two implications for social welfare policy:
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First, [the f indings] emphasize the di fficulty of determining the e xtent of drug use among welfare beneficiaries. Any test utilized for this purpose is likely to provide, at best, an estimate of these numbers. Such estimates are suitable only for planning purposes and not for sanctioning.
Secondly, the findings suggest that stat es may not n eed to test for drug use among welfare beneficiaries. Evidence from the Florida demonstration project showed very little difference between drug users and non-users on a variety of dimensions. Users were employed at about the same rate as were non-users, earned approximately the same amount of money as those who were drug free and did not require substantially different levels of governmental assistance. If there are no behavioral differences between drug users and non- users and i f drug users do no t require the ex penditure of additional public funds, then policymakers are free to c oncentrate on other elements of welfare policy and to avoid divisive, philosophy-laden debates.
Id. at 52 (emphasis added).
The preliminary results of the Demonstration Project were reported to the
Legislature in an Evaluation Report that recommended that the project not be expanded
because of the high costs of drug testing “compared with the b enefits derived” and
because of the “minimal differences in employment and earnings between those who
showed evidence of current substance abuse and those who did not.” ROBERT E. CREW,
EVALUATION REPORT,2 at ii-iii (Dkt. 3 2-1 at 2-3). The Legislature apparently did not
undertake further testing or expanded testing, and the Demonstration Project expired on
June 30, 2001, pursuant to a st atutory sunset pr ovision. See FLA. STAT. § 41 4.70(1)
(1998) (repealed 2004).
2 There are two reports on the r ecord that set forth the r esults of the Dem onstration Project: the Evaluation Report (Dkt. 32-1), which was prepared by Robert E. Crew, Jr. for presentation to t he legislature pursuant to Section 414.70, and the subsequent published version of the eva luation report, Robert E. Crew, Jr. and Belinda Creel Davis, Assessing the Effects of Substance Abuse Among Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 (2003) (Dkt. 22-2). Plaintiff filed both studies without objection by the State.
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In 2011, the Florida Legislature resurrected the conc ept of drug testing TANF applicants. No new studies were conducted, and no new data specific to the Florida welfare population was offered. Inste ad, legislative staff officials turned again to th e Demonstration Project, evaluated its data and considered other issued implicated by the proposed suspicionless drug testing program. See FINAL B. ANALYSIS, FLA. H. B. 353 (2011) (Dkt. 22-4); PROFESSIONAL STAFF OF THE BUDGET COMMITTEE, FLA. S. B. ANALYSIS AND FISCAL IMPACT STATEMENT, S. B. 556 (2011) (Dkt. 22-5). Staff analyses provided to the Florida House of Representatives and the Fl orida Senate considered the legal ramifications of drug testing, citing a number of cases raised by the parties in the filings before this Court. The House analysis cited the line of United States Supreme Court cases dealing with suspicionless drug testing of individuals and noted that the issue had been successfully challenged as unconstitutional in Michigan in the precise context of welfare recipients. FINAL B. ANALYSIS, FLA. H. B. 353 (2011) (Dkt. 22-4 at 4-5.) The staff analysis provided to the Florida Senate inexplicably cited Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction). PROFESSIONAL STAFF OF THE BUDGET COMMITTEE, FLA. S. B. ANALYSIS AND FISCAL IMPACT STATEMENT, S. B. 556 (2011) (Dkt. 22-5 at 6). On the record presented to this Court, it appears that the analysis failed to advise the Senate that the Sixth Circuit Court of Appeals vacated that decision and subsequently affirmed the district court decision by a vote of an evenly divided en banc court, thereby reinstating the district court’s preliminary injunction enjoining the M ichigan statute on c onstitutional grounds.
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See Marchwinski v. Howard, 319 F.3d 258 (6th Cir. 2003), and Marchwinski v. Howard, 60 F. App'x 601 (6th Cir. 2003).
The staff analyses did both summarize the Demonstration Project’s findings and conclusions, however. PROFESSIONAL STAFF OF THE BUDGET COMMITTEE, FLA. S. B. ANALYSIS AND FISCAL IMPACT STATEMENT, S. B. 556 (2011) (Dkt. 22-5 at 3 , 7); FINAL B. ANALYSIS, H. B. 353 (2011) (Dkt. 22-4 at 3.) The legislative staff specifically advised the legislature that the researcher charged with evaluating the project “did not recommend continuation or statewide expansion” of the Demonstration Project, noting: “Overall research and findings concluded that there is very little difference in employment and earnings between those who test positive versus those who test negative. Researchers concluded that the cost of the pilot project was not warranted.” PROFESSIONAL STAFF OF THE BUDGET COMMITTEE, FLA. S. B. ANALYSIS AND FISCAL IMPACT STATEMENT, S. B. 556 (2011) (Dkt. 22-5 at 3); FINAL B. ANALYSIS, H. B. 353 (2011) (Dkt. 22-4 at 3.) Despite the failure of the Demonstration Project to uncover evidence of rampant drug abuse among TANF applicants; despite the conclusion of researchers that drug use did not adversely impact any of the goals of the TANF program, including employability, earning capacity or independence from social assistance; despite the fact that the study revealed no financial efficacy; despite the legal ramifications; and, despite the express recommendation that the project not be continued or expanded, Florida enacted Section 414.0652 on May 31, 2011.
Section 414.0652 requires each individual who applies for TANF funding to take a drug test. FLA. STAT. § 414.0652(1). The applicant must initially bear the expense of
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the drug testing, which costs between $24 and $45. FLA. STAT. § 414.0652(1); Duchene Aff. ¶ 4 (Dkt. 19-2 at 2.) Drug testing is not conducted at the office of an individual’s physician but instead must take place at an “approved laboratory” authorized by DCF to administer drug testing. Berner Aff. ¶ 6 (Dkt. 19-1 at 3.) If the applicant tests negative, TANF funds will be used to reimburse the applicant for the cost of the drug test. F LA. STAT. § 414.0652(2)(a). A medical review officer reviews all test results and evaluates positive tests, as v arious prescription medications being taken a t the di rection of a physician can trigger a positive result. Duchene Aff. ¶ 6 (Dkt. 19-2 at 2.) To avoid being denied benefits due to legitimate prescription drug use, applicants must inform the agent administering the drug test that they are taking prescription or over-the-counter medications and must legitimize their use. Although this requirement is presented as optional, if the applicant does not so disclose, the applicant may be denied benefits due to a positive screening. See FLA. STAT. § 414.0652(2)(d)-(j). Ultimately, a medical review officer verifies the validity of any prescriptions provided by the applicant and may override positive results if appropriate. Duchene Aff. ¶ 6 (Dkt. 19-2 at 2-3.) All test results are provided to DCF. Duchene Aff. ¶ 6 (Dkt. 19-2 at 3.)
Any applicants who test positive for controlled substances and have no medically approved excuse for the positive result are immediately sanctioned; they are rendered ineligible to receive TANF benefits for one year. FLA. STAT. § 414.0652(1)(b). However, an ap plicant may reapply after 6 months and may receive benefits if the individual successfully completes a substance abuse treatment program and passes a drug test, the costs of which are to be borne by the applicant. FLA. STAT. §
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414.0652(2)(j). If an adult tests positive for illicit drug use, children in the family may still receive benefits if another approved adult, referred to as a “protective payee,” provides a negative drug test for controlled substances. FLA. STAT. § 414.0652(3)(b)-(c).
DCF shares all positive drug tests f or controlled substances with the Fl orida Abuse Hotline. Berner Aff. ¶ 9 ( Dkt. 19-1 at 4.) After receiving a positive drug test, a hotline counselor enters a Par ent Needs Assistance referral into a chi ld welfare database known as the Florida Safe Families Network. Berner Aff. ¶ 9 (Dkt. 19-1 at 4.) A referral is then prepared so that the adult who tested positive may receive a l ist of substance abuse treatment programs and so that “other appropriate response to the referral in the particular county of residence of the applicant” may be taken. Berner Aff. ¶ 9 ( Dkt. 19-1 at 4.) The statute governing the Fl orida Abuse Hotline authorizes the disclosure of records from the abuse hotline to “[c]riminal justice agencies of appropriate jurisdiction,” as well as “[t]he state attorney of the judicial cir cuit in w hich the child resides or in which the alleged abuse or neglect occurred.” FLA. STAT. § 39.202(2)(b)(c). Law enforcement officials may access the Florida Safe Families Network and make such use of the data as they see fit. Preliminary Injunction Hearing at 10:58 A.M. (Drew Parker, attorney for DCF); see also FLA. STAT. § 39.202(2)(b)-(c). However, the Parent Needs Assistance referral does not tr igger formal reports of child abuse or neglect, which are governed under Chapter 39, Florida Statutes.
Section 414.0652 became effective July 1, 2011, and drug testing began in earnest during the month of July. FINAL B. ANALYSIS, H. B. 353 (2011) (Dkt. 22-4 at 1); Berner Aff. ¶ 6 (Dkt. 19-1 at 3.) The preliminary results from the drug testing conducted
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pursuant to Section 414.065 reveal even lower drug use among TANF applicants than
demonstrated by the results of the Demonstration Project. Evidence adduced on this record suggests that preliminary tests sh ow that only about 2 percent3 of TANF
applicants tested positive in the first month of drug testing. (Dkt. 19 at 8; Dkt. 2 at 16.)
The State argues that all denials of benefits to TANF applicants who refuse to
take the drug test after being determined otherwise eligible should be considered “drug related denials.”4 Yet, it is difficult to draw any conclusions concerning the extent of
drug use or the deterrent effect of the statute from this fact because declining to take
the drug test can be attributed to a number of factors in addition to drug use, including
an inability to pay for the testing, a lack of laboratories near the residence of an
applicant, inability to secure transportation to a laboratory or, as in the case at bar, a
refusal to accede to what an a pplicant considers to be an unreasonable condition for
receiving benefits. No evidence on the distribution of these other factors among those
who have declined to be tested has been adduced. Whatever the reason for the failure
or refusal to test, the empirical data to date has only demonstrated that 2 percent to 5.1
3 The State s uggested initially at the H earing that th ere might be a dis crepancy in this low number but later stated on t he record that “we know that about two percent are testing positive.” In an y case, the State has not s ought to introduce evidence of a high er percentage of actual positive drug tests among TANF applicants based on the in itial results of the dr ug testing. The pamphlet the State introduces on this point states that only 9 people of the 574 d enials through the end of July actually tested positive for drug use. Tarren Bragdon, The Impact of Florida’s New Drug Test Requirement for Welfare Cash Assistance, FOUNDATION FOR GOVERNMENT ACCOUNTABILITY, September 2011 at 4 (Dkt. 19-8 at 2.) Although this would equate to approximately 2 percent of those who were denied, it is far less than 2 percent of the overall total number tested. For purposes of its analysis, the Court considers the overall 2 percent positive test results figure cited by the parties. Perhaps the parties can more fully address these numbers as the case progresses. 4 The State uses a 9.8 percent number to quantify drug related denials based a refusal to take a test, but this number appears to conflate the 7.6 percent of those who are denied based on because they have not submitted any test results and the 2 percent of those who have tested positive.
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percent of Florida’s TANF applicants are drug users. Conversely, the data suggests that 94.9 to 98 percent are not drug users. Yet, all must submit to suspicionless drug testing or forego receipt of TANF benefits.
I. DISCUSSION Plaintiff argues that requiring all applicants for TANF benefits to submit to a suspicionless drug test violates the Fourth Amendment’s prohibition against unreasonable searches and th at preliminary injunctive relief is required to av oid the irreparable harm that will befall him and others similarly situated without the issuance of an injunction. (Dkt. 2 at 1.) The State offers four rejoinders: (1) the Section 414.0652 requirement for acquiescence to a drug test is not a se arch within the meaning of the Fourth Amendment; (2) Section 414.0652 is justified by the “special needs” of the State to conduct drug testing within the ambit of its administration of TANF funds; (3) Plaintiff will suffer no i rreparable harm in the absence of an i njunction because he i s free to refuse the drug test; and (4) the public interest lies in ensuring that p ublic funds are expended for their intended purposes and not in ways that w ill endanger the p ublic. (Dkt. 19 at 9-27.) A district court may grant a pr eliminary injunction only upon the movant's showing that (1) it has a substantial likelihood of success on the merits, (2) the movant will suffer irreparable injury unless the injunction is issued, (3) the threatened injury to the movant outweighs the possi ble injury that the i njunction may cause the opposing party, and (4) if issued, the injunction would not disserve the public interest. Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1326 (11th Cir. 2001); Scott v. Roberts, 612
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F.3d 1279, 1290 (11th Cir. 2010). The Court will address each of these considerations in turn.
a. Likelihood of Success on the Merits The Court finds that Plaintiff has demonstrated that, on the current record, there is a substantial likelihood that his challenge to the constitutionality of Section 414.0652 under the Fourth Amendment will succeed.
1. Urinalysis Testing for the Presence of Drugs Constitutes a Search under the Fourth Amendment
It is well established that a drug test is considered a search under the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 617 (1989); Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989); Chandler v. Miller, 520 U.S. 305, 313 (1997); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822 (2002). In Skinner, the seminal case on thi s issue, the Supreme Court held that the “collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable”5 and that “these intrusions must be deemed searches under
5 Against this controlling authority, the Court declines the State ’s invitation (Dkt. 24) to review current private organizations’ practices or public opinion polls to c onclude that there no l onger exists a reasonable expectation of privacy against state intrusion via urinalysis drug testing. Private employers are not constrained by the limits of the Fourth and Fourteenth Amendment in this regard.
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the Fourth Amendment.” Skinner, 489 U.S. at 617; Vernonia, 515 U.S. at 658 (“collecting the samples for urinalysis intrudes upon ‘ an excretory function traditionally shielded by great privacy’”) (quoting Skinner, 489 U .S. at 62 6); Nat'l Treasury Employees Union v. Von Raab, 816 F.2d 170, 175 (5th Cir. 1987) aff’d in part, vacated in part and remanded, 489 U.S. 656 (1989) (“There are few activities in our society more personal or private than the passing of urine. Most people describe it by euphemisms if they talk about it at all. It i s a function traditionally performed without public observation; indeed, its performance in public is generally prohibited by law as well as soci al custom.”) (quoted in Skinner, 489 U.S. at 617); see also Schmerber v. California, 384 U.S. 757, 768 (1966) (“compelled intrusion into the body for blood to be analyzed for alcohol” is a search under the Fourth Amendment).
Notwithstanding the overwhelming body of case law to the contr ary, the State contends that the drug testing of welfare recipients is not a s earch. (Dkt. 19 at 9.) According to th e State, the drug test i s not forced or compelled, and, i f there is no consent to the t esting, there is no drug test and, t hus, no search. (Dkt. 19 at 11.) For support, the State relies upon Wyman v. James, 400 U.S. 309 (1971). In Wyman, the Supreme Court concluded that requiring a welfare recipient to consent to a home visit in order to b e deemed eligible for welfare benefits did not constitute a sear ch. In s o holding, the Court observed that the home visit “in itself is not forced or compelled. . . . If consent to the visitation is withheld, no visitation takes place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search.” Wyman, 400 U.S. at 317-18. Defendant contends that the principles
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announced in Wyman control the outcome of this case and co mpel the conclusion that Section 414.0652 does not implicate a search. (Dkt. 19 at 11.)
The Court finds this argument unpersuasive. T he principal and dispositive difference between this case and Wyman is the nature of the intrusion demanded. In Wyman, the Court characterized the home visit to be primarily “rehabilitative” in nature and cautioned against placing too much emphasis on its investigatory character. Wyman, 400 U.S. at 317. The Court reasoned that the caseworker was “not a sleuth but rather . . . a friend to one in need,” and, although the caseworker might have observed matters in the home that revealed fraud or issues requiring further review, the parameters of the visit did not permit snooping or intrusion beyond sitting in the living room having a conversation. Id. at 321, 323. It also recognized that the home visit had become “an established routine in States besides New York” and that th e home visit formed the “ ‘heart of the welfare administration.’” Wyman, 400 U.S. at 32 0 (quoting Note, Rehabilitation, Investigation and the Welfare Home Visit, 79 YALE L.J. 746, 748 (1970)). The Supreme Court has never extended the holding of Wyman outside the context of the home visit in the manner urged by the State.6
The post-Wyman cases dealing with suspicionless drug testing further confirm that the urinalysis at issue here is a search and negate the State’s contrary contention. The Supreme Court has “routinely treated urine screens taken by state ag ents as searches within the meaning of the Fourth Amendment,” Ferguson v. City of Charleston,
6 See, Sanchez v. County of San Diego, 464 F.3d 916, 922, n. 8 ( 9th Cir. 2006), cert. denied, 552 U.S. 1038 (2007) (applying Wyman in a home visit context with slightly more intrusive aspects but noting that Wyman’s holding that home visits are not searches had been “called into question by the Supreme Court's subsequent Fourth Amendment jurisprudence”).
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532 U.S. 67, 77 n.9, regardless of whether the p erson subjected to th e test has the opportunity to r efuse it. See Chandler, 520 U.S. at 313 (drug testing of prospective political candidates considered to be a search); Vernonia, 515 U.S. 646 (policy requiring high school students to si gn a form consenting to testing in order to play sports considered a sear ch); Earls, 536 U .S. 822 (policy requiring middle school and high school students to consent to dr ug testing as a condi tion for participation in extracurricular activities held a search); Von Raab, 489 U.S. at 665 (drug testing as a condition for employment in certain U.S. Customs Service positions held to be a search).
In short, this case does not concern home visits; it concerns the collection of an individual’s urine, an act that necessarily entails intrusion into a highly personal and private bodily function, and the subsequent urinalysis, which can reveal a host of private medical facts about that individual. Skinner, 489 U.S. at 617. The intrusion here also extends well beyond the i nitial passing of urine. Posi tive drug tests ar e not kept confidential in the same manner as medical records; they are shared with third-parties, including DCF, medical reviewers and counselors for the Florida Abuse Hotline. More troubling, positive test results are memorialized, perhaps indefinitely, in a database that the State admits can be accessed by law enforcement. This potential interception of positive drug tests by law enforcement implicates a “far more substantial” invasion of privacy than in ordinary civil drug testing cases. See Ferguson, 532 U.S. at 78. In light of the inherently investigative character of the drug test and binding legal authority, the
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Court rejects the argument that a drug test taken pursuant to Section 414.0652 is not a search within the meaning of the Fourth Amendment.
2. Plaintiff’s Initial Consent, Now Revoked, Does not Bar His Claim The State is correct that a search conducted with consent does not give rise to a constitutional violation. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). It is uncontested that Plaintiff electronically signed a “Drug Testing Information and Consent Form,” which is clear evidence of his consent to be drug tested. However, completion of that form was required in order for DCF to process Plaintiff’s application. Berner Aff. ¶ 7 ( Dkt. 19-1 at 3.) Without DCF’s initial approval of his application, Plaintiff’s claim would have likely been barred by the ripeness doctrine, which serves to protect federal courts from “engaging in speculation or wasting their resources through the review of potential or abstract disputes." Digital Props., Inc. v. City of Plantation, 121 F.3d 586, 590 (11th Cir. 1997) (First Amendment claim not sufficiently mature for judicial review). Plaintiff has since unequivocally revoked his consent to be searched by refusing to take the drug test and by filing this action . Lebron Aff. ¶ 21 (Dkt. 2-1 at 3.) Under these facts, the Court finds that Plaintiff’s initial consent does not b ar the invocation of his rights under the Four th Amendment to be free from suspicionless drug testing under Section 414.0652. Even if Plaintiff’s consent were not revoked, the State’s exaction of consent to an otherwise unconstitutional search in exchange for TANF benefits would violate the doctrine of unconstitutional conditions. Se e Perry v. Sindermann, 408 U .S. 593, 597
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(1972) (collecting cases and o bserving that “even though a per son has no ‘ right’ to a valuable governmental benefit,” the government may not “deny a benefit to a person on a basis that i nfringes his constitutionally protected interests”); see also Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (“The doctrine of unconstitutional conditions prohibits terminating benefits, although not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe.”) (quotations omitted); United States v. Scott, 450 F.3d 863, 866 (9th Cir. 2006) (waiver of Fourth Amendment rights is limited by unconstitutional conditions doctrine).
3. The State has not Demonstrated Any “Special Need” for Drug Testing All TANF Applicants
Because Florida’s drug testing program authorizes suspicionless searches, Florida must establish that the interests it advances to demand such searches without probable cause or reasonable suspicion meet the “Special Needs” exception to the Fourth Amendment. The Fourth Amendment, as applicable to t he states through the Fourteenth Amendment, does not prohibit all searches; only unreasonable searches are unconstitutional. Skinner, 489 U.S. at 619. “To be reasonable under the Four th Amendment, a search ordinarily must b e based on i ndividualized suspicion of wrongdoing.” Chandler, 520 U.S. at 313.
One exception to this rule arises when the government can demonstrate “exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” New
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Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring); see also Skinner, 489 U.S. at 619. As the Supreme Court has noted, “Our precedents establish that the proffered special need for drug testing must be subst antial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” Chandler, 520 U.S. at 3 18. When special needs are alleged in justification of a Fourth Amendment intrusion, “courts must undertake a c ontext-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Id. at 314.
The special needs exception arises out o f circumstances in the administrative context in which the practice of obtaining a warrant would simply not be feasible. In Skinner, for instance, the Federal Railroad Administration found that alcohol and drug abuse by railroad employees posed a serious threat to safety, and i n response it promulgated regulations that r equired employees involved in train accidents to tak e blood and urine tests. Skinner, 489 U.S. at 606. The Supreme Court recognized that the delay required to procure a w arrant could result in the destruction of valuable evidence of drug and alcohol use, and t hat adherence to normal probable cause a nd warrant requirements would frustrate the compelling government interest in ra ilway safety. Id. at 623. Thus, the administrative necessity of investigating the cause of an accident justified resort to the special needs doctrine. Id. at 623.
Similarly, in the co ntext of public schools, the Supreme Court has determined that "strict adherence to the requirement that searches be based upon probable cause" would “unduly interfere with the mai ntenance of swift and informal disciplinary
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procedures” and would detract from "the substantial need of teachers and administrators for freedom to maintain order in the schools." Vernonia, 515 U.S. at 653 (quoting New Jersey v. T.L.O., 469 U.S. 325, 340 (1985)). In contrast, the Tenth Circuit has found that the special needs doctrine could not justify an intrusive, nonconsensual physical examination of preschoolers because parental notice and consent to the searches were not impracticable. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1215 (10th Cir. 2003).
The viability of alleged special needs also depends upon the substantiality of the governmental interest asserted. Chandler, 520 U.S. at 318. In drug testing cases, an interest will be considered substantial if the government shows that the drug testing is warranted by “surpassing safety interests.” Skinner, 489 U.S. at 634 . Li kewise, suspicionless drug testing has been deemed justified where the individuals who are to be tested are employed in a particularly sensitive capacity implicating peculiar affairs or missions of the government, such as law enforcement agents involved in drug interdiction. See, e.g., Von Raab, 489 U.S. at 669. Fi nally, the Supreme Court has approved of suspicionless drug testing in public schools because of “the need to prevent and deter the substantial harm of childhood drug use,” Earls, 536 U.S. at 835, and because the schools have taken on a “custodial and tutelary responsibility for children” in the special confines of the school setting. Vernonia, 515 U.S. at 656.
But the special needs exception is reserved for “exceptional circumstances,” T.L.O., 469 U.S. at 351, and not every alleged governmental interest will fit within the “closely guarded category of constitutionally permissible suspicionless searches.”
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Chandler, 520 U.S. at 309. In C handler, the Su preme Court considered the constitutionality of a statute that required candidates for certain elected offices to submit to drug testing as a condition of qualification for candidacy. Id. at 309. The Stat e of Georgia cited as a special need the “incompatibility of unlawful drug use with holding high state office” and argued that the “use of illegal drugs draws into q uestion an official’s judgment and integrity; jeopardizes the discharge of public functions; . . . and undermines public confidence and trust in elected officials.” Id . at 318. The State of Georgia also argued that t he statute “serves to deter unlawful drug users from becoming candidates and thus stops them from attaining high state office.” Id.
Rejecting this rationale, the Supreme Court found that Georgia failed to demonstrate a sufficiently substantial special need. The Court noted that Georgia conceded that the statute was “not enacted in response to any fear or suspicion of drug use by state o fficials” and that the cited reasons did not present “any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.” Id. at 319. The Court also opined that the drug testing regime was “not well designed” to identify drug users because all of those drug users “save for those prohibitively addicted, could abstain for a pretest period sufficient to avoid detection.” Id. at 320-21. In the absence of any showing that th e statute responded to anything more than a “symbolic” need, the C ourt held that the need asserted did not justify the suspicionless drug testing. Id. at 309, 322.
Applying this analysis to th e facts of this case and considering the evidence adduced to date, the Court finds the State has not demonstrated a substantial special
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need to justify the w holesale, suspicionless drug testing of all applicants for TANF benefits. The State maintains that the following interests qualify as special needs: (1) ensuring that TANF funds are used for their dedicated purpose, and not diverted to drug use; (2) protecting children by “ensuring that its funds are not used to visit an ‘evil’ upon the children’s homes and families;” (3) ensuring that funds are not used in a m anner that detracts from the goal of getting beneficiaries back to employment; (4) ensuring that the government does not fund the “public health risk” posed by the cr ime associated with the “drug epidemic.” (Dkt. 19 at 18-22.)
These goals are undeniably laudable objectives. However, these stated goals can be found nowhere in the legislation, and with good reason: the State’s commissioned study undercuts each of these rationales as a l ikely feature of the proposed legislation. As noted, researchers found a l ower rate of drug usage among TANF applicants than among current estimates of the population of Florida as a whole. This would suggest that TANF funds are no more likely to be di verted to drug use or used in a manner that would expose children to drugs or fund the “drug epidemic” than funds provided to any other recipient of government benefits. The researchers also found no evidence that TANF recipients who screened and tested positive for the use of illicit substances were any less likely to find work than those who screened and tested negative. The Florida Legislature, in fact, enacted the Sec tion 414.0652 over the express recommendation of its own researchers not to expand the Demonstration Project statewide because it was not shown to meet these goals.
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In this litigation, the State provides scant evidence that rampant drug abuse exists among this class of individuals. It relies on three studies in support of its position. The first is a policy brief prepared by the National Poverty Center, which the State cites for its data estimating that twenty one percent of welfare recipients self-reported using drugs in the pr evious year, mostly marijuana. Jay akody et al ., Substance Abuse and Welfare Reform, NATIONAL POVERTY CENTER POLICY BRIEF # 2 (National Poverty Center) April 2004 at 2-3; (Dkt. 19-5 at 2). The Court finds this study lacks any probative value on the issue presented. The State concedes that the study relies on d ata from 1994 and 1995; the study is not specific to Florida; and the study is not of the same population being considered here, but a much larger recipient, demographic and geographic population than the TANF recipients being tested here. Moreover, the study posits that, although illicit drug use is m ore prevalent among women receiving welfare benefits, “only a smal l minority of recipients (about 4 percent) satisfied the diagnostic screening for illicit drug dependence (i.e. drug use im pacted their f unctioning in significant ways.” Id. at 2.
Even less probative of the State’s position is the second cited study, which relies upon data dating back nearly 20 years to 1992 and concludes that “contrary to common characterizations” only “small percentages”—3.8 percent to 9.8 percent—of national recipients of AFDC, WIC and food stamps use drugs. Bridget F. Grant and Deborah A. Dawson, Alcohol and Drug Use, Abuse, and Dependency among Welfare Recipients, 86 AM. J. PUB. HEALTH 1450, 1453 (1996) (Dkt. 19-6 at 3). This study also considers evidence of a broader population than TANF applicants.
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Similarly, the thi rd study offered by the St ate, which uses d ata from Women’s Employment Surveys taken between 1997 and 1999 and a 1997 National Household Survey of Drug Abuse, estimates drug dependency among respondents to be between 3.2 and 4.4 percent. Harold Pollack et al., Drug Testing Welfare Recipients – False Positives, False Negatives, Unanticipated Opportunities (2001) (Dkt. 19-7 at 5, 11.) The only more significant numbers are based on self-reports of TANF recipients of any drug use within the previous year. Id. at 6. Again, this study considers data that is outdated and is not specific to Florida TANF beneficiaries. Its aut hors also conclude that psychiatric disorders are a more prevalent problem than drug dependence and suggest that drug testing should be “focused only on r ecipients who experience tangible drugrelated economic barriers or threats to family functioning.” Id. at 11, 13. These studies do not support the conclusion that drug abuse is a “concrete danger” among the class of citizens the State seeks to drug test. See Chandler, 520 U.S. at 319. Moreover, there is no ev idence that any of these studies were considered by the legislature when it promulgated the statute.
Perhaps more damaging than its failure to provide evidence in support of its alleged special needs is the St ate’s failure to ad dress the only competent evidence before the Court on this issue: (1) the results from the Demonstration Project commissioned by the Florida Legislature to study the scope of the perceived problem of drug abuse a mong Florida’s TANF applicants and the concomitant benefits of drug testing; and, (2) the preliminary results from the dr ug testing conducted thus far pursuant to Secti on 414.0652. This evidence suggests that TANF applicants can be
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expected to test positive between 2 and 5.1 percent of the time. This percentage range falls well below current estimates of the rate of drug use among the general population of Florida. More importantly, the researchers have concluded that the benefits ostensibly to be served by this legislation will not be reaped—and no evidence has been offered yet to discredit those findings.
Faced with this evidence, the State argues that i t can, nevertheless, establish special needs without a s howing of a n overwhelming drug problem in the tested population. (Dkt. 19 at 22 n.15 .) In this regard, the State invokes the concern for the wellbeing of children that served as a special need in Earls and the concerns for public safety and crime risks that jus tified the special needs in Von Raab. (Dkt. 19 at 19-20, 21.) It is true that the Supreme Court did not require overwhelming evidence of a drug problem among the specific populations to be tested in those cases. See Von Raab, 489 U.S. at 673-75; Earls, 536 U.S. at 835. However, the Chandler Court made clear that the Von Raab decision is “[h]ardly a decision opening broad vistas for suspicionless searches;” instead, it is a decision that “must be read in its unique context.” Chandler, 520 U.S. at 321. The Chandler Court explained that the preventative drug testing in Von Raab was warranted because the customs employees who served as the “first line of defense” against the smuggling of illicit narcotics were “routinely exposed to the vast network of organized crime that is inextricably tied to illegal drug use.” See id. at 316, 321 (quotation to Von Raab omitted).
Unlike Von Raab, where the S upreme Court excused the abs ence of evidence because smuggling posed a threat to national border security, there is no “ veritable
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crisis” demonstrated on this record that demands preventative measures. See Von Raab, 489 U.S. at 668. Though the State speaks in generalities about the “public health risk, as well as the crime risk, associated with drugs” being “beyond dispute,” it provides no concrete evidence that those risks are any more present in TANF applicants than in the greater population. (Dkt. 19 at 21.) Rather, the evidence suggests that those risks are less prevalent among TANF applicants. The Court, therefore, rejects the suggestion that the inchoate public health or crime risks assertions incanted by the State justify the Fourth Amendment intrusions mandated by Section 414.0652.
Nor is the dr ug testing analogous to the preventative drug testing program approved of in Earls. In Earls, as i n prior and subsequent public school drug testing cases, the subjects of the drug tests were vulnerable students, and the school district’s custodial or tutelary responsibility towards those students justified early, preventative intervention through drug testing. Earls, 536 U.S. at 835, 830. The Supreme Court also considered evidence of a “nationwide drug epidemic” that had “grown worse” since its decision in Vernonia in 1995 upholding the constitutionality of drug testing of student athletes. Id. at 834. Specifically, the Court pointed out that “the number of 12th graders using any illicit drug increased from 48.4 percent in 1995 to 53.9 percent in 2001. The number of 12th graders reporting they had used marijuana jumped from 41.7 percent to 49.0 percent during that same period.” Id. at 834 n.5. This evidence on the “nationwide drug epidemic ma[de] the war against drugs a pressing concern in every school.” Id. at 834.
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The Court also considered “specific evidence of drug use at Tecumseh schools,” including the testimony of teachers that they had observed students under the influence of drugs and had heard students speaking openly about the use of drugs. Id. at 834-35. The school board also provided other anecdotal evidence, including the di scovery of “marijuana cigarettes near the school parking lot” and “drugs or drug paraphernalia in a car driven by a Future Farmers of America member.” Id. at 835. The Supreme Court concluded that the school board had “provided sufficient evidence to shore up the need for its drug testing program.” Id. Importantly, Earls was decided on summary judgment after an opportunity to offer up competent evidence. C onsidering, as the C ourt must, this record as it is currently presented, there is no evidence at this stage of the litigation comparable to the evidence presented in Earls regarding drug use by TANF applicants, and there is no evidence that the children of these applicants are at any heightened risk from the dangers of drug abuse.
On this point, the S tate contends that by being the cond uit for a maximum of $241 per month in federal cash assistance for a finite period of time to TANF applicants, it somehow “steps into the role of the parent” in the same manner as the school board in Earls. (Dkt 19 at 20.) This contention is without merit. At the point at which the drug test is demanded, the State has not made a TANF contribution for the b enefit of the children. Moreover, the children affected by Section 414.0652 remain in the custody of their caretakers, not t he State, regardless of whether the car etaker tests posi tive for drugs and regardless of whether Florida withholds TANF benefits as a consequence. Even if the State did assume some authority over the children, it does not follow that the
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State would be justified in drug testing their parents, whose role the State suggests it
supplants, and Earls does not so hold.
This untenable suggestion also implicates the concerns raised in Marchwinski v.
Howard, 113 F. Supp. 2d 1134 (E.D. Mich. 2000), regarding the danger of unquestioned
deference to the assertion of this interest:
If the State is allowed to drug test [TANF] recipients in order to ameliorate child abuse and neglect by virtue of its financial assistance on behalf of minor children, that excuse could be us ed for testing the parents of all children who receive Medicaid, State Emergency Relief, educational grants or loans, public education or any other benefit from the State. In all cases in which the State offers a benefit on behalf of minor children, the State could claim that it has a broad interest in the care of those children which overcomes the privacy rights of the parents.
Marchwinski v. Howard, 113 F. Su pp. 2d 1134, 1142 (E.D. Mich. 2000) aff’d, 60 F. App'x 601 (6th Cir. 2003) (affirmed on rehearing by evenly divided en banc panel).7 In
light of this concern and in the absence of a show ing that Se ction 414.0652 was
promulgated in response to any concrete danger to the children of Florida’s TANF
recipients, the Court declines to extend the special need for drug testing public school
students to the facts of this case.
The State’s asserted interest in ensuring that drug use does not frustrate TANF’s
statutory goal of getting beneficiaries back to employment is, likewise, unsupported on
7 The State repeatedly quotes and cites to Marchwinski v. Howard, 309 F.3d 330 (6th Cir. 2002) (holding that district court erred in granting preliminary injunction) vacated by 319 F.3d 258 (6th Cir. 2003), despite the fact that this decision has been vac ated and therefore has no pr ecedential value. See, e.g., Whole Health Chiropractic & Wellness, Inc. v. Humana Med. Plan, Inc., 254 F.3d 1317, 1320 n.3 (11th Cir. 2001) (noting that In re First Nat'l Bank of Boston, 70 F.3d 1184 (11th Cir. 1995) “lacks precedential value, as it was vacated"); Iranian Students Ass'n v. E dwards, 604 F.2d 352, 354 n.4 ( 5th Cir., 1979) (reliance on Henderson v. Fort Worth Indep. Sch. Dist., 574 F.2d 1210 (5th Cir. 1978) was “totally inapposite” because the "vacating of that decision deprives it of precedential value").
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the evidence of record. Even if this interest qualified as a special need, see contra Marchwinski, 113 F. S upp. 2d at 11 40,8 the evidence does n ot support its application here. The special needs exception rests on the assumption that the drug testing will actually redress the problem that gives rise to the special need, and the justification for the special needs exception loses force when the dr ug testing and i ts attendant consequences would prove ineffective. See Chandler, 520 U.S. at 319-320.
The asserted benefit of getting TANF beneficiaries back to work is not supported by any tangible evidence, however. The only evidence on this point soundly refutes it. The State’s Demonstration Project study emphatically concluded that “whether or not a person tested positively for drug abuse on the ur inalysis affected very little their likelihood of working.” Robert E. C rew, Jr. and Bel inda Creel Davis, Assessing the Effects of Substance Abuse Among Applicants for TANF Benefits, 17(1) JOURNAL OF HEALTH & SOCIAL POLICY 39 at 42, 48 ( 2003) (Dkt. 22-2 at 9) . T hus, the interest of getting TANF applicants back to w ork is not a demonstrated or concrete special need, and, even if it were, the evidence of record does not suggest it would be furthered by the drug testing program in any event.
When the asserted concerns regarding public safety, the wellbeing of children and the employment of TANF applicants are stripped away, the State is left with only one alleged special need: the interest in preserving public funds by ensuring that money that is inte nded for one purpose is not used instead to purchase illegal drugs.
8 The Marchwinski Court found that the goal of moving welfare recipients to work does not f it into an y “closely guarded category of constitutionally permissible suspicionless searches” such that it would qualify as a special need. Marchwinski, 113 F. Supp. 2d at 1140 (quoting Chandler, 520 U.S. at 309).
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(Dkt. 19 at 1 8.) Ag ain, this is a commendable governmental purpose, and one that courts have found relevant to t he special needs analysis. Se e, e.g., Sanchez, at 928 (home visits for the purpose of verifying eligibility of welfare benefits and reducing welfare fraud held to be justified by a special need).
Chandler teaches, however, that it is not enough to simply recite a governmental interest without any evidence of a concrete threat that would be mitigated through drug testing. Chandler, 520 U.S. at 322; see also Ferguson, 532 U.S. at 81 (observing that the Court does “not simply accept the State's invocation of a ‘special need’” but instead must carry out “‘close review’ of the scheme at issue” before determining whether the need is special as that term has been defined through Supreme Court precedent) (quoting Chandler, 522 U.S. at 322).
The State has not shown by competent evidence that any TANF funds would be saved by instituting a dr ug testing program. The State, of course, concedes the substantial cost o f administering the pr ogram: everyone who tests neg ative must be reimbursed for the cost of the drug test. FLA. STAT. § 414.0652(2)(a). Thus, millions of TANF dollars will be spent funding drug tests.
Though the St ate offers, as evidence of the cost sav ings, a pamphlet from the Foundation for Government Accountability9 entitled, The Impact of Florida’s New Drug Test Requirement for Welfare Cash Assistance, the data contained in the pamphlet is
9 The Foundation for Government Accountability, a non-profit organization that “believes personal liberty and private enterprise are key to F lorida’s economic future,” “develops and promotes free market public policies that achieve limited, constitutional government and a robust economy that will be an engine for job creation across the state.” Tarren Bragdon, The Impact of Florida’s New Drug Test Requirement for Welfare Cash Assistance, FOUNDATION FOR GOVERNMENT ACCOUNTABILITY, September 2011 at 4 (Dkt. 198 at 4.)
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not competent expert opinion, nor is it offered as such, nor could it be reasonably construed as suc h. Tarren Bragdon, The Impact of Florida’s New Drug Test Requirement for Welfare Cash Assistance, FOUNDATION FOR GOVERNMENT ACCOUNTABILITY, September 2011 at 1 (Dkt. 19-8 at 1.) Even a cursory review of certain assumptions in the pamphlet undermines its conclusions. Just by way of example, the pamphlet suggests that the State will save millions in the first year; but it arrives at this number by extrapolating from the 9.6 percent of TANF applications that are denied for “drug-related” reasons, including those who tested positive and those who declined to be tested. Id. at 1. It extends these hypothetical savings for the full year that a TANF applicant who tested positive for drugs would be subject to losing benefits. Id. at 2-3.
However, the results show that 7.6 percent of this 9.6 percent figure is comprised of applicants who have declined to be tested. These “ non-testers” cannot be reasonably counted as providing twelve months of savings, or so-called “annualized savings,” because they are otherwise eligible and c an begin receiving benefits at any point during the year by submitting a new application and a negative drug test. Even as to those 2 percent of applicants who are known drug users, “annualized savings” calculations inflate the claimed savings because those applicants do not have to forego an entire year of TANF assistance but may reapply after 6 m onths. FLA. STAT. § 414.0652(2)(j). Additionally, the staff analysis presented to the Florida Senate advised the Senate that denials caused by positive tests cannot be relied upon to produce a net savings figure for the additional reason that the “protective payee” provision of the statute allows another adult family member who provides a negative drug test to receive
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the same funds that are purported to be saved. See PROFESSIONAL STAFF OF T HE BUDGET COMMITTEE, FLA. S. B. ANALYSIS AND FISCAL IMPACT STATEMENT, S. B. 556 (2011) (Dkt. 22-5 at 6); FLA. STAT. § 414.0652(3)(b). Therefore, on this record, the State has not demonstrated any financial benefit or net savings will accrue as a r esult of the passage of Section 414.0652.
To this, the State invokes the government’s general interest in fighting the “war on drugs” and the associated ills of drug abuse generally to contend that TANF funds should not be used to fund the drug trade. The Court agrees. But, if invoking an interest in preventing public funds from potentially being used to fund drug use were the only requirement to establish a special need, the State could impose drug testing as an eligibility requirement for every beneficiary of every government program. Such blanket intrusions cannot be countenanced under the Fourth Amendment.
What the Fourth Amendment requires is that such incursions by the Government must be reserved for demonstrated special needs of government or be based on some showing of reasonable suspicion or probable cause. The State has made no showing that it would be “impracticable” to meet these prerequisites in the context of TANF recipients. Any suggestion that it would be i mpracticable should be based on some evidentiary showing, and any such showing would likely be belied by the fact that other states competently administer TANF funds without drug tests or with suspicion-based drug testing and no other state employs blanket suspicionless drug testing.
Even if one ascribes to the v iew that one of the “happy incidents of the federal system” is that a “ single courageous State may, if its citizens choose, serve as a
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laboratory; and try novel social and economic experiments without risk to the rest of the country,”10 Florida has al ready conducted its experiment. It commissioned a Demonstration Project that proceeded unchallenged, and it was based on s uspicion of drug use. Through this effort, Florida gathered evidence on the scope of this problem and the efficacy of the proposed solution. The results debunked the assumptions of the State, and likely many laypersons, regarding TANF applicants and drug use. The State nevertheless enacted Section 414.0652, without any concrete evidence of a special need to do so—at least not that has been proffered on this record.
The constitutional rights of a class of citizens are at stake, and t he Constitution dictates that the needs asserted to justify subverting those rights must be special, as the case law defines that term, in order for this exception to th e Fourth Amendment to apply. Ferguson, 532 U.S. at 81. That showing has not been made on this record.
As the State has failed to demonstrate a special need for its suspicionless drug testing statute, the Court finds no need to engage in the balancing analysis—evaluating the State’s interest in conducting the drug tests and the privacy interests of TANF applicants.
ACCORDINGLY, the Court finds that Plaintiff has shown a substantial likelihood of success on the merits of this action.
b. Irreparable Harm The Court also finds that Plaintiff has demonstrated that he will suffer irreparable harm in the absence of preliminary injunctive relief. The right to be free from
10 Chandler, 520 U.S. at 324 (1997) (Rehquist, J., dissenting) (quoting New State Ice Co. v. Liebmann,
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unreasonable searches and seizures under the F ourth Amendment is a fundamental constitutional right, the violation of which is enough to demonstrate irreparable harm. Covino v. Patrissi, 967 F.2d 73, 7 7 (2d Cir. 1992). A number of courts have found irreparable harm would flow from subjecting an individual to suspicionless drug testing. See, e.g., Am. Fed'n of Teachers-West Va., AFL-CIO v. Kanawha Cnty. Bd. of Educ., 592 F. Sup p. 2d 8 83 (S.D.W. Va. 2 009); Bannister v. Bd. of C nty. Comm'rs of Leavenworth Cnty., Kan., 829 F. Supp. 1249 (D. Kan. 1993); Marchwinski, 113 F. Supp. 2d 1134 (E.D. Mich. 2000).
Subjecting Plaintiff, as well as those i ndividuals who are similarly situated, to suspicionless drug testing as a c ondition of applying for TANF benefits would cause irreparable harm. See Bourgeois v. Peters, 387 F. 3d 1303, 1324 (11th Cir. 2004) (reversing denial of injunctive relief where city imposed an unco nstitutional condition requiring the surrender of Fourth Amendment right to be free of unreasonable searches and seizures in order to participate in a protest); Chu Drua Cha v. Noot, 696 F.2d 594, 599 (8th Cir. 1982) (“We have no doubt that irreparable harm is occurring to the plaintiff class as each month passes” without the statutorily conferred level of welfare benefits.).

c. Balance of Harms and Public Interest When a state is a party, the third and fourth considerations in granting a preliminary injunction are largely the same . Scott v. Roberts, 612 F.3d 1 279, 1290 (11th Cir. 2010) (citing Garcia-Mir v. Meese, 781 F.2d 1450, 1455 (11th Cir. 1986)).

285 U.S. 262, 311 (1932)).

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The State has operated TANF without drug testing since 1996, and preliminary injunctive relief would merely require the State revert to the status quo ante until there is a final adjudication of the r ights afforded its citizens under the U nited States Constitution.
Conversely, imposing an injunction would serve the public interest by protecting TANF applicants from the h arm caused by infringement of their constitutional right, a right here that o nce infringed cannot be r estored. “Perhaps no greater public interest exists than pr otecting a ci tizen's rights under the c onstitution.” Marchwinski, 113 F. Supp. 2d at 1144 (quoting Legal Aid Soc. of Haw. v. Legal Servs. Corp., 961 F. Su pp. 1402, 1418 (D. Hawaii 1997)). Accordingly, the Court concludes that preliminarily enjoining what appears likely to be dee med to be an unconstitutional intrusion on the Fourth Amendment rights of TANF applicants serves the public interest and outweighs whatever minimal harm a preliminary injunction might visit upon the State.
III. CONCLUSION Based on the foregoing, Plaintiff’s Motion for Preliminary Injunction is GRANTED. It is therefore ORDERED that the State is hereby ENJOINED from requiring Plaintiff to submit to a suspicionless drug test pursuant to Section 414.0652, Florida Statutes, as a condition for receipt of TANF benefits until this case is finally resolved on the merits. This Order does not address whether Florida is authorized to c onduct drug testing of TANF applicants based on some quantum of individualized suspicion, an issue not before the Court.
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It is further ORDERED that Plaintiff’s unopposed request that he not be required to post the security that is typically required for the issuance of a preliminary injunction under Rule 65(c) of the Federal Rules of Civil Procedure is GRANTED. See, Complete Angler, LLC v. City of Clearwater, Fla., 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009); All States Humane Game Fowl Org., In c. v. City of Jacksonville, Fla., No. 3:08-cv-312-J33MCR, 2008 WL 2949442, at *13 (M.D. Fla. July 29, 2008).
Upon the stipulation of the State that it “will apply such a ruling to all persons similarly situated to Plaintiff,” the Court finds that class certification is unnecessary. (Dkt. 30 at 4) Plaintiff’s Motion for Class Certification is, accordingly, DENIED without prejudice.
DONE and ORDERED in Orlando, Florida, this 24th day of October 2011.
Copies furnished to: Counsel of Record
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 Case 6:11-cv-01473-MSS-DAB Document 48 Filed 12/07/11 Page 1 of 10 PageID 813

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

LUIS W. LEBRON, individually and as class representative,
Plaintiff,
v.
DAVID E. WILKINS, in his official capacity as Secretary of the Florida Department of Children & Families,
Defendant. ___________________________________

Case No.: 6:11-cv-01473-Orl-35DAB

ORDER THIS CAUSE comes before the Court on Plaintiff’s Renewed Motion for Class Certification (Dkt. 38) and the State’s Response (Dkt. 42) in opposition thereto. Upon consideration, Plaintiff’s Renewed Motion for Class Certification is GRANTED. I. BACKGROUND Plaintiff’s initial request for class certification was denied without prejudice as unnecessary based upon the State’s stipulation that it would not seek to enforce Section 414.0652, Florida Statutes, against others similarly situated to Plaintiff until the resolution of this action. ( Dkt. 33 at 37.) P laintiff renews his request for class certification, arguing that certification is necessary because the Preliminary Injunction issued on September 24, 2011, could be subject to dissolution on mootness grounds if Plaintiff finds employment. (Dkt. 38 at 2.) It appears that the State has acted

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expeditiously and consistent with its representation that it would cease application of the challenged statute, pending resolution of this case. (See Dkt. 38-1.) And, it appears that the cease and desist directive has been generally applied to all persons. Id.
Nevertheless, the State declines to stipulate to class certification. I nstead, it maintains that certification is unnecessary because, even if Plaintiff found employment, the Court would likely retain jurisdiction over this controversy because his injury is “capable of repetition yet evading review.” (Dkt. 42 at 3.) Yet, the State stops short of conceding that the matter cannot be rendered moot in any circumstance. It notes, for instance, that the “capable-of-repetition” doctrine would not apply if Plaintiff received the lifetime maximum of forty-eight months of TANF benefits. (Dkt. 42 at 5.) The State also makes oblique reference to the possibility that individuals may fall “out of compliance with other prerequisites for receiving TANF cash assistance” (Dkt. 42 at 7), a circumstance which, if it were to occur in Plaintiff’s case, could also render this action moot as to this individual Plaintiff. Even so, the State contends that “Plaintiff’s mootness concerns are overstated.” ( Dkt. 42 at 2-3.) The State also argues that Plaintiff has not satisfied the requirements of class certification under Federal Rule of Civil Procedure 23. (Dkt. 42 at 5-15.)
II. DISCUSSION A. Class Certification is Necessary On reconsideration of the facts of this case and on consideration of the law, now
correctly cited, the Court finds that the risk of mootness creates a sufficient need for class certification and failure to grant class certification in the circumstances of this case
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would be considered an abuse of discretion under binding precedent. See Johnson v. City of Opelousas, 658 F.2d 1065, 1070 (5th Cir. 1981) (district court abused its discretion in refusing to certify an otherwise appropriate class where there was a substantial risk that the constitutional claim of putative class representative would become moot during the course of litigation). “Article III requires that a plaintiff's claim be live not just when he first brings suit, but throughout the litigation.” Tucker v. Phyfer, 819 F.2d 1030, 1034 (11th Cir. 1987). The State concedes that the tenure of any individual beneficiary in the TANF program “may not be l ong enough to permit the federal litigation process to conclude” because the average period over which newly approved applicants receive benefits is “far shorter than the average span of federal litigation.” (Dkt. 42 at 4.) As Plaintiff’s claim could become moot at some point during this litigation, the Court finds that the more prudent course is to certify the class, if appropriate under the prerequisites of Rule 23.
B. Plaintiff’s Proposed Class Meets the Requirements of Rule 23 The Court finds that the proposed class satisfies the requirements for certification under Rule 23. “For a district court to certify a class action, the named plaintiffs must have standing, and the putative class must meet each of the requirements specified in Federal Rule of Civil Procedure 23(a), as well as at least one of the requirements set forth in Rule 23(b).” Klay v. Humana, Inc., 382 F.3d 1241, 1250 (11th Cir. 2004). The State does not challenge Plaintiff’s standing to sue but argues that the putative class does not meet the requirements of Rule 23(a) and Rule 23(b)(2). (Dkt. 42.)
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Rule 23(a) allows a member of a class to sue as a r epresentative party on behalf of all class members only if:
(1) The class is so numerous that joinder of all members is impracticable; (2) There are questions of law or fact common to the class; (3) The claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) The representative parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a). Under Rule 23(b)(2), a c lass action may be maintained if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). Plaintiff bears the burden of showing that the requirements of Rule 23 have been met and that class certification is appropriate. Plaintiff proposes that the Court certify the following class: All persons residing in Florida who applied for, are applying for, or will in the future apply for, Temporary Cash Assistance (“TCA”), Florida’s program to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent this Court’s Order of October 24, 2011, be subject to Defendant’s mandatory suspicionless drug testing as a result of Fla. Stat. § 414.0652. (Dkt. 38 at 6.) With respect to the numerosity requirement under Rule 23(a)(1), Plaintiff observes that there were 106,654 individuals receiving TANF benefits as of January 2011, and that there were 1,107 first-time applicants for TANF in July 2011. (Dkt. 16 at 7-8.) The State contends that these figures are too speculative to satisfy the numerosity requirement because (1) “Plaintiff has offered no evidence regarding the number of
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individuals in the proposed class who would object, and not voluntarily consent, to a drug test” and (2) “Plaintiff offers no evidence regarding the number of individuals in the class for whom the State has reasonable suspicion to suspect drug use.” (Dkt. 42 at 8.)
The Court finds that the proposed class contains enough members to satisfy Rule 23(a)(1). Plaintiff is not required to “allege the exact number and i dentity of the class members, but must only establish that joinder is impracticable through some evidence or reasonable estimate of the number of purported class members.” Avery v. Uniroyal Tech. Corp., No. 8:02CV2238T27MAP, 2005 WL 1205607, at *2 (M.D. Fla. May 20, 2005). Contrary to the suggestion of the State, the Motion rests on more than mere speculation: Plaintiff alleges, and the State does not dispute, that there were approximately 1,107 first-time TANF applicants in the month of July. (Dkt. 16 at 7-8.) Furthermore, by the State’s own admission, in “any one month in Florida, approximately 3,500 people first receive TANF cash benefits.” (Dkt. 19-1 at 2.)
But for the entry of a preliminary injunction enjoining enforcement of Section 414.0652, every new applicant for TANF benefits would be subjected to a drug test as a prerequisite to the receipt of benefits. The Court finds that there is specific evidence in the record to conclude that the putative class members are so numerous that joinder would be i mpracticable, especially where, as here, Plaintiff alleges a class-wide constitutional violation across a highly fluid class of citizens. See Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 930 (11th Cir. 1983) (noting that “the relevance of the numerosity requirement to class certification may in appropriate cases be less significant where in fact class wide discrimination has been alleged”); Barrett v.
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Claycomb, No. 11–cv–04242–NKL, 2011 WL 5822382, at *2 (W.D. Mo. Nov. 15, 2011) (certifying class of college students challenging school policy requiring mandatory drug testing: “given the large initial number of potential plaintiffs, and because of the fluid nature of this class (the litigation is about to pass into a new semester and will thus affect different students), it would be impracticable to require individual lawsuits”).
The suggestion that some members of the proposed class might be indifferent to drug testing or might consent to a drug test is not fatal to class certification.1 See, e.g., Barrett, 2011 WL 5822382, at *2 (rejecting argument that proposed class fails numerosity requirement because some students favor the drug testing policy); Lynch v. Baxley, 386 F. Supp. 378, 386 (M.D. Ala. 1974) (“it is immaterial that certain potential class members may be satisfied with their present status and i ndifferent as to the constitutionality of the statues herein attacked”); Leisner v. N.Y. Tel. Co., 358 F. Supp. 359, 372 (S.D.N.Y. 1973) (noting that it is not “fatal if some members of the class might prefer not to have violations of their rights remedied”). Nor does the inclusion of TANF applicants for whom the State claims it might have reasonable suspicion of drug use defeat certification. In the absence of injunctive relief, those applicants, like all other putative class members, would, nonetheless, be required to submit to suspicionless drug testing under Section 414.0652. The possibility that the State may currently have or may later develop reasonable suspicion of drug use among individuals within the
1 The evidence of record does not bear out this suggestion in any event. The Quinnipiac poll to which the State refers does not reveal whether or how many actual or potential TANF recipients were among those polled, nor does it suggest which, if any, responded indifferently or favorably to drug testing. (See Dkt. 24-4 at 2.) Finally, it is not, as the State suggests, reasonable or logical to assume that those adversely affected by the testing would react as favorably to the testing as those not affected by it.
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proposed class has no impact on the numerosity requirement imposed by Rule 23(a)(1) because all members of the proposed class are subject to the same likely unconstitutional condition.
The Court also finds that the proposed class meets the commonality requirement. R ule 23(a)(2) “demands only that there be ‘questions of law or fact common to the class.’” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1268 (11th Cir. 2009) (quoting FED. R. CIV. P. 23(a)(2)). All plaintiffs in the proposed class raise the same legal question: whether Section 414.0652 is facially constitutional under the Fourth and Fourteenth Amendments. Additionally, all plaintiffs in the proposed class, by its definition, suffer the same injury in that they are all subject to drug testing required under that statute. Thus, the commonality of the constitutional challenge is “of such a nature that it is capable of classwide resolution,” that is, “determination of the truth or falsity [of the claim] will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551 (2011).
The State suggests that the proposed class would inappropriately include individuals who applied prior to July 1, 2011, and who therefore will not be s ubject to drug testing, as well as individuals who may no longer qualify for TANF cash assistance for reasons unrelated to the drug-test requirement. ( Dkt. 42 at 9.) To the contrary, those individuals would not be part of the proposed class because they would not, in the absence of this Court’s Order of October 24, 2011, “be subject to Defendant’s mandatory suspicionless drug testing as a result of Fla. Stat. § 414.0652.” (Dkt. 38 at 6.) Additionally, the Court rejects the contention that inclusion of individuals who have
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consented or would consent to a dr ug test or for whom the State otherwise has reasonable suspicion of drug use defeats commonality. T he class members are all subject to the allegedly unconstitutional condition imposed by Section 414.0652, regardless of the consent required by the TANF application and regardless of the purported existence of reasonable suspicion. T hus, as all members of the proposed class raise the same legal challenge to redress the same injury, Rule 23(a)(2) is satisfied.
For the same reasons, the proposed class meets Rule 23(a)(3), which requires Plaintiff’s claim to be typical of the claim of the proposed class. FED. R. CIV. P. 23(a)(3). Plaintiff possesses the same interest and suffers the same injury as every other proposed class members: he has been required to submit to a suspicionless drug test as a prerequisite for receiving TANF benefits. This is sufficient to satisfy the typicality requirement under Rule 23(a)(3). See Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1279 (11th Cir. 2000) (noting that typicality is met where a class representative is part of the class and possesses the same interest and suffers the same injury as the class members).
The Court likewise finds that the proposed class satisfies the adequacy of representation requirement under Rule 23(a)(4). This provision “tend[s] to merge” with the typicality and commonality requirements, though it also “raises concerns about the competency of class counsel and conflicts of interest.” Dukes, 131 S. Ct. at 2551 n.5 (2011) (quoting General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 158 n.13 (1982)). The State does not articulate any concerns about the competency of counsel
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or conflicts of interest; it only suggests that claimed factual and legal differences discussed above prevent Plaintiff from fairly and adequately protecting the interests of the putative class. For the reasons stated, Plaintiff, through his counsel, would adequately represent this class.
Finally, the Court finds that the proposed class satisfies the requirements of Rule 23(b)(2) because the State “has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” FED. R. CIV. P. 23(b)(2). The State has attempted to enforce Section 414.0652, a s tatute that is generally applicable to all members of the class, as defined, such that the relief sought is appropriate to all members of the class. Accordingly, the proposed class satisfies Rule 23(b)(2).
III. CONCLUSION Based on the foregoing, it is hereby ORDERED as follows:
1. Plaintiff’s Renewed Motion for Class Certification is GRANTED. 2. Pursuant to Federal Rule of Civil Procedure 23, this action is CERTIFIED as a
class action under the class definition proposed by Plaintiff and set forth herein. 3. Plaintiff’s counsel from the Florida Justice Institute and the ACLU of Florida
Foundation are hereby APPOINTED as class counsel pursuant to Federal Rule of Civil Procedure 23(g).
DONE and ORDERED in Orlando, Florida, this 7th day of December 2011.
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 Case 6:11-cv-01473-MSS-DAB Document 110 Filed 12/03/14 Page 1 of 55 PageID 4201 Case: 14-10322 Date Filed: 12/03/2014 Page: 1 of 54
[PUBLISH] IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-10322 ________________________
D.C. Docket No. 6:11-cv-01473-MSS-DAB LUIS W. LEBRON, Individually and as Class Representative,
Plaintiff - Appellee,
versus
SECRETARY OF THE FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,
Defendant - Appellant. ________________________
Appeal from the United States District Court for the Middle District of Florida ________________________ (December 3, 2014)
Before HULL and MARCUS, Circuit Judges, and TOTENBERG,* District Judge.
MARCUS, Circuit Judge:
A Florida statute mandates suspicionless drug testing of all applicants
* Honorable Amy Totenberg, United States District Judge for the Northern District of Georgia, sitting by designation.

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seeking Temporary Assistance for Needy Families (“TANF”) benefits. See Fla. Stat. § 414.0652. Luis Lebron sued the Secretary of the Florida Department of Children and Families (the “State”), claiming that the statute violates the Fourth Amendment’s prohibition against unreasonable searches and seizures, applied against the states through the Fourteenth Amendment. After we affirmed the entry of a preliminary injunction barring the application of the statute against Lebron, the State halted the drug-testing program. See Lebron v. Sec’y, Fla. Dep’t of Children & Families (Lebron I), 710 F.3d 1202 (11th Cir. 2013). Since then, the district court granted final summary judgment to Lebron, declared § 414.0652 unconstitutional, and permanently enjoined its enforcement.
We affirm. On this record, the State has failed to meet its burden of establishing a substantial special need to drug test all TANF applicants without any suspicion. Even viewing the facts in the light most favorable to the nonmoving party, the State has not demonstrated a more prevalent, unique, or different drug problem among TANF applicants than in the general population. The ordinary government interests claimed in this case are nothing like the narrow category of special needs that justify blanket drug testing of railroad workers, certain federal Customs employees involved in drug interdiction or who carry firearms, or students who participate in extracurricular activities because those programs involve “surpassing safety interests,” Skinner v. Railway Labor Execs. Ass’n, 489
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U.S. 602, 634 (1989), or “close supervision of school children,” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 655 (1995) (quoting New Jersey v. T.L.O., 469 U.S. 325, 339 (1985)).
Moreover, as we held in Lebron I, the State cannot circumvent constitutional concerns by requiring that applicants consent to a drug test to receive TANF payments. When a government benefit is conditioned on suspicionless drug testing, the voluntariness of the program is properly viewed as a factor baked into the special needs reasonableness analysis, not as an exception to it.
I. A. Congress created TANF in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105. TANF provides federal block grants for state programs “that provide[] assistance to needy families with (or expecting) children and provide[] parents with job preparation, work, and support services to enable them to leave the program and become self-sufficient.” 42 U.S.C. § 602(a)(1)(A)(i). Florida began disbursing TANF benefits, including Temporary Cash Assistance, to families in 1996 through its Department of Children and Families (“DCF” or the “Department”). To apply for TANF benefits in Florida, an individual must complete an application and must satisfy a number of eligibility requirements. Fla. Stat. § 414.095. Only expectant
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mothers and families with children qualify. Id. § 414.095(14)(a). In the application, an individual must disclose certain information, including medical history, immunization records, living arrangements, social security numbers, family income, employment history, and job-search activities. For families of two like Lebron and his son, the maximum Temporary Cash Assistance benefit currently is $241.00 per month. Id. § 414.095(10)(c). An individual generally may not receive TANF Temporary Cash Assistance for more than a lifetime cumulative total of 48 months. Id. § 414.105.
Congress specified in the 1996 Act that states were not prohibited “from testing welfare recipients for use of controlled substances nor from sanctioning welfare recipients who test positive for use of controlled substances.” 21 U.S.C. § 862b. In 2011, Florida enacted a statute requiring suspicionless drug screening for all TANF applicants as a condition of eligibility. Fla. Stat. § 414.0652. Under that law, applicants must provide a DCF-approved laboratory with a urine sample to be tested for Amphetamines, Methamphetamines, Cannabinoids (THC), Cocaine, Phencyclidine (PCP), Opiates, Barbiturates, Benzodiazepines, Methadone, and Propoxyphene. The statute does not require testing for alcohol. DCF must “[a]dvise each individual to be tested, before the test is conducted, that he or she may, but is not required to, advise the agent administering the test of any prescription or over-the-counter medication he or she is taking.” Id.
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§ 414.0652(2)(d). Applicants bear the cost of testing, which during the period of
the statute’s implementation generally ranged between $24 and $45. However, if
an applicant tests negative for controlled substances, the Department increases the
amount of TANF benefit to compensate for the testing expense. Id.
§ 414.0652(2)(a). State law provides that “[a] sample shall be collected with due
regard to the privacy of the individual providing the sample, and in a manner
reasonably calculated to prevent substitution or contamination of the sample.” Id. § 112.0455(8)(a).1 Notably, an applicant may arrange the timing of filing an
application; after the State determines that the applicant has satisfied all non-drug
testing eligibility factors (e.g., income, assets, etc.), the applicant must pass a drug
test within ten days.
Under § 414.0652, an individual who tests positive for controlled substances
is ineligible for TANF benefits for one year, though those who fail drug tests may
reapply for benefits after six months if they can document successful completion of
a substance abuse treatment program and pass another drug test. Id.
1 State regulations further require “minimum precautions” to ensure the security of the urine specimen: “[t]he collection site person shall ask the individual to remove any unnecessary outer garments, such as a coat or jacket, and to empty all clothing pockets. . . . The individual may retain his or her wallet, provided that the collection site person shall check it for possible contaminants.” Fla. Admin. Code r. 59A-24.005(3)(c)(5). “The individual may provide his or her urine specimen in a stall or otherwise partitioned enclosure that allows for individual privacy. The collection site person shall remain in the restroom or area, but outside the stall or partitioned enclosure.” Id. r. 59A-24.005(3)(c)(7). In addition, if “a collection site person has reason to believe that a particular individual may alter or has altered or substituted a urine specimen,” and a higher level supervisor agrees, a second specimen shall be collected “under the direct observation of an observer of the same gender as the donor.” Id. r. 59A-24.005(3)(c)(13).
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§§ 414.0652(1)(b), (2)(j). A parent cannot receive benefits without passing a drug test, but the parent’s failure of a test does not affect a child’s eligibility to receive TANF benefits; instead, a protective payee would be designated to receive benefits for the child. Id. § 414.0652(3).
The § 414.0652 drug-testing requirement went into effect on July 1, 2011, and was enforced until the district court entered a preliminary injunction on October 24, 2011. During that period, 4,046 TANF applicants submitted to drug testing. Only 108 -- 2.67% -- tested positive for drug use: 44 for cannabinoids (marijuana); 24 for benzodiazepines (e.g., Xanax); 10 for cocaine; 9 each for barbiturates and opiates; 10 for methadone; 3 for propoxyphene; 5 for amphetamines or methamphetamines; and 2 for PCP.2 Throughout that period, 2,306 additional applicants did not complete applications and submit drug-test results to DCF, even though they were otherwise eligible for TANF Temporary Cash Assistance.
When he brought suit, Lebron had sole custody of his five-year-old son. A veteran of the United States Navy and a college student, Lebron was a thirty-fiveyear-old single-parent who lived with and cared for his disabled mother in Orlando, Florida. On July 16, 2011, Lebron applied to DCF for TANF benefits for himself and his son. Lebron initially signed a form agreeing to drug testing, but he
2 Some applicants tested positive for more than one drug. 6

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later revoked his consent and refused to take the test. If Lebron had passed a drug test and submitted the results, the Department determined, he and his son would have been eligible for TANF benefits. Without the test, however, the Department deemed him ineligible to receive TANF assistance and denied his application on August 25, 2011.
B. On behalf of himself and a class of similarly situated persons, Lebron commenced this lawsuit in the United States District Court for the Middle District of Florida on September 6, 2011, against the Secretary of DCF in his official capacity. Lebron sought a declaration that requiring suspicionless drug testing for TANF eligibility under § 414.0652 violated the Fourth Amendment right to be free from unreasonable searches. Lebron also asked for a permanent injunction barring the enforcement of § 414.0652. Lebron filed a motion for a preliminary injunction with his complaint. On October 24, 2011, the district court preliminarily enjoined the State from requiring that Lebron submit to a suspicionless drug test pursuant to § 414.0652 as a condition for receiving TANF benefits until the case was resolved. Lebron v. Wilkins, 820 F. Supp. 2d 1273, 1293 (M.D. Fla. 2011). The court found that Lebron was substantially likely to succeed on the merits of his challenge, that he would suffer irreparable injury without an injunction, that his threatened injury
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outweighed the possible injury to the State, and that an injunction would not disserve the public interest. See id. at 1281 (citing Horton v. City of St. Augustine, Fla., 272 F.3d 1318, 1326 (11th Cir. 2001)). Because the State stipulated that it would apply the ruling to all similarly situated persons, the district court initially denied without prejudice Lebron’s motion for class certification. Shortly thereafter, though, out of concern that Lebron’s individual claim might become moot during the litigation, the district court certified a class of Florida TANF applicants.3 In response to the preliminary injunction, DCF suspended the § 414.0652 TANF drug-testing program statewide, approved all applications that had been pending based on drug testing, approved benefits for individuals who had tested positive, and reimbursed TANF applicants for drug tests to the extent they had not already received reimbursement. In total, the Department restored TANF Temporary Cash Assistance to approximately 1,727 families.
The Secretary appealed the preliminary injunction, and a panel of this Court affirmed. Lebron I, 710 F.3d 1202. We found it undisputed that governmentmandated drug testing is a Fourth Amendment “search.” Id. at 1206. The Court
3 The certified class is composed of: All persons residing in Florida who applied for, are applying for, or will in the future apply for, Temporary Cash Assistance (“TCA”), Florida’s program to distribute Temporary Assistance for Needy Families (“TANF”) benefits, and who would, absent [the preliminary injunction], be subject to Defendant’s mandatory suspicionless drug testing as a result of Fla. Stat. § 414.0652.
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explained that, to qualify as a constitutionally reasonable search, § 414.0652 drug testing either must be based on individualized suspicion of wrongdoing, or must involve certain limited and exceptional circumstances, when the government shows substantial “special needs.” Id. at 1206-07 (quoting Skinner, 489 U.S. at 619). Because this case did not involve either of the two exceptional circumstances recognized by the Supreme Court -- employees engaged in inherently dangerous jobs (such as railroad workers or federal Customs employees who are involved in drug interdiction or who carry firearms) and children in public schools -- we concluded that the district court did not abuse its discretion in determining that the State failed to establish a substantial special need justifying its TANF drug-testing requirement. The State’s claimed special need -- ensuring that the goals of TANF are not jeopardized by drug use -- rested on a presumption of an unlawful drug-use problem among Florida TANF recipients that the State had failed to support with concrete facts. Id. at 1212-13. The Court also rejected the State’s alternative claim that § 414.0652 drug testing was constitutionally permissible because TANF applicants gave their consent, citing “the Supreme Court’s long-standing admonition that the government ‘may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.’” Id. at 1217 (quoting Perry v. Sindermann, 408 U.S. 593, 597 (1972)). Ultimately, the Court held that the district court did not abuse its discretion in rejecting the State’s
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consent argument due to the unconstitutional conditions doctrine. Id. at 1218. The State petitioned for rehearing en banc, which the Court denied.
Meanwhile, the State had not sought a stay of the matter in the district court pending appeal, and both parties filed motions for summary judgment before we decided Lebron I. After we issued our opinion in the preliminary injunction matter, and after the completion of discovery, the district court entered an order granting final summary judgment in favor of Lebron and denying the State’s motion. The State argued in the district court that drug testing was constitutionally permissible because of three “special needs”: “(1) ensuring TANF participants’ job readiness; (2) ensuring the TANF program meets its child-welfare and family-stability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health.” Id. at 1291. Citing Lebron I, the district court concluded, however, that the State failed to show that TANF recipients fell within the “closely guarded category” for whom the Supreme Court has allowed suspicionless drug testing, and also failed to demonstrate that the statute was necessary to protect children because the TANF testing has no impact on the familial and custodial relationships of applicants. Id.
Significantly, the district court also found that the only competent record evidence addressing drug use among the Florida TANF population came from a 1998 study conducted by DCF that actually found a lower rate of drug usage
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among TANF applicants than among current estimates of the population of Florida as a whole. Id. at 1293. The court deemed inadmissible or irrelevant other evidence proffered by the State concerning the rate of drug use among Florida’s TANF population. The district court concluded that “there simply is no competent evidence offered on this record of the sort of pervasive drug problem the State envisioned in the promulgation of this statute.” Id. at 1298. Finally, the court rejected the state’s consent argument, finding that consent under the statute was not voluntarily given. Id. Ultimately, because there was no set of circumstances under which § 414.0652 could be applied constitutionally, the court declared the statute facially unconstitutional and permanently enjoined the State from enforcing it. Id. at 1299. The State filed a timely notice of appeal of the district court’s final order, which we have jurisdiction to review under 28 U.S.C. § 1291.
II. We review the district court’s grant of summary judgment in favor of Lebron de novo, viewing all facts in the light most favorable to the State. Am. Fed’n of State, Cnty. & Mun. Emps. Council 79 v. Scott (AFSCME), 717 F.3d 851, 862 (11th Cir. 2013). We review evidentiary rulings, including the exclusion of evidence at summary judgment, for abuse of discretion. See Allison v. McGhan Med. Corp., 184 F.3d 1300, 1306 (11th Cir. 1999). Thus, we defer to the district court’s ruling unless it is “manifestly erroneous”: “Because the task of evaluating
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the reliability of expert testimony is uniquely entrusted to the district court . . . we give the district court ‘considerable leeway’ in the execution of its duty.” Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d 1183, 1191 (11th Cir. 2010) (quoting Rink v. Cheminova, 400 F.3d 1286, 1291 (11th Cir. 2005)). Similarly, “[t]he ultimate decision as to the admissibility of lay opinion testimony is committed to the sound discretion of the district court and will not be overturned on appeal unless there is clear abuse of discretion.” United States v. Myers, 972 F.2d 1566, 1576-77 (11th Cir. 1992). “Evidence inadmissible at trial cannot be used to avoid summary judgment.” Chapman v. Procter & Gamble Distrib., LLC, 766 F.3d 1296, 1313 (11th Cir. 2014) (quoting Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007)).
Under the “law of the case” doctrine, the “findings of fact and conclusions of law by an appellate court are generally binding in all subsequent proceedings in the same case in the trial court or on a later appeal.” Heathcoat v. Potts, 905 F.2d 367, 370 (11th Cir. 1990) (per curiam) (quoting Westbrook v. Zant, 743 F.2d 764, 768 (11th Cir. 1984)). This doctrine is limited to issues actually decided by the appellate court, and discussion in dicta “is neither the law of the case nor binding precedent.” Great Lakes Dredge & Dock Co. v. Tanker Robert Watt Miller, 957 F.2d 1575, 1578 (11th Cir. 1992). Still, law of the case includes “things decided by necessary implication as well as those decided explicitly.” Wheeler v. City of
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Pleasant Grove, 746 F.2d 1437, 1440 (11th Cir. 1984) (per curiam) (quoting Dickinson v. Auto Ctr. Mfg. Co., 733 F.2d 1092, 1098 (5th Cir. 1983)). Our precedent recognizes three exceptions to the law of the case doctrine: “when (1) a subsequent trial produces substantially different evidence, (2) controlling authority has since made a contrary decision of law applicable to that issue, or (3) the prior decision was clearly erroneous and would work manifest injustice.” Id. (quoting United States v. Robinson, 690 F.2d 869, 872 (11th Cir. 1982)). We enforce this judge-made doctrine in the interests of efficiency, finality and consistency: “[f]ailure to honor its commands can only result in chaos.” Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987) (en banc).
In Lebron I, we reviewed the grant of a preliminary injunction on an undeveloped record and asked only whether the district court had abused its discretion in determining that Lebron was likely to succeed on the merits of his claim. See 710 F.3d at 1206. The Court was not asked, and did not decide, the ultimate constitutionality of § 414.0652. See id. at 1218 (Jordan, J., concurring). Still, in reaching its decision, Lebron I noted a number of legal principles that apply equally to the issues presently before us.
III. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”
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U.S. Const. amend. IV. The drug testing by urinalysis required under § 414.0652 is undisputedly a Fourth Amendment search. Skinner, 489 U.S. at 617 (“Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, . . . these intrusions must be deemed searches under the Fourth Amendment.”). The question is whether mandatory, suspicionless drug testing of all TANF applicants amounts to a reasonable search. While the Constitution generally prohibits government searches conducted without individualized suspicion, the Supreme Court has recognized exceptions in certain well-defined circumstances, including when the government has “special needs, beyond the normal need for law enforcement.” Chandler, 520 U.S. at 313 (quoting Skinner, 489 U.S. at 619). The Secretary argues that the State has a “special need” for its drug-testing regime and, alternatively, that consent from TANF applicants renders the searches constitutionally valid. We are unpersuaded.
A. The special needs doctrine recognizes that, “[i]n limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion, a search may be reasonable despite the absence of such suspicion.” Skinner, 489 U.S. at 624. In determining
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whether the State possesses a sufficiently substantial special need, “courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties.” Chandler, 520 U.S. at 314. The Supreme Court has permitted suspicionless drug testing only “where the asserted special need addresses a substantial concern for public safety or where the state is fulfilling its well-recognized role as the guardian and tutor of public school children.” Lebron I, 710 F.3d at 1210.
In Skinner, federal regulations required blood and urine testing of railroad employees involved in train accidents, and also allowed railroads to conduct breath and urine tests of employees who violated safety rules. The regulations were adopted in response to evidence of drug and alcohol abuse by some rail employees, the enormous safety hazards posed by such abuse, and the documented link between impaired employees and train accidents. The Supreme Court upheld the testing program as justified by “surpassing safety interests” because drug testing could deter rail workers who might “cause great human loss before any signs of impairment become noticeable to supervisors.” Skinner, 489 U.S. at 634, 628. The program also allowed railroads to collect critical information about the causes of major train accidents. Suspicionless testing was necessary, according to the Court, because blanket searches after (unpredictable) accidents prevented employees from avoiding detection by planning drug use around a testing
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schedule, and because waiting to establish suspicion about individuals after an accident “likely would result in the loss or deterioration of the evidence furnished by the tests.” Id. at 631.
For similar reasons, the Supreme Court upheld drug testing of United States Customs Service employees who were directly involved in drug interdiction or were required to carry firearms. See Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989). Noting that the program was intended “to deter drug use among those eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug users to those positions,” the Court concluded that a substantial special need justified the search. Id. at 666. Considering the hazardous and important work done by Customs employees, particularly their exposure to threats, bribes, and blackmail from drug traffickers, the Court held that “the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment.” Id. at 670. Similarly, employees “who may use deadly force plainly discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.” Id. (internal quotation marks omitted). “In light of the extraordinary safety and national security hazards that would attend the promotion of drug users to positions that require the carrying of firearms or the interdiction of controlled substances, the Service’s policy of deterring drug users
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from seeking such promotions cannot be deemed unreasonable.” Id. at 674. Outside the context of employees in especially hazardous occupations, the
Supreme Court has recognized only one other circumstance giving rise to a substantial special need that justifies suspicionless drug testing: when testing “was undertaken in furtherance of the government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” Vernonia, 515 U.S. at 665. The Vernonia Court upheld a school board policy that required public school students to consent to suspicionless drug testing in order to participate in athletics. The Supreme Court highlighted the peculiar circumstances of public schools, where “[a] proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” Id. at 655 (quoting T.L.O., 469 U.S. at 339). As a result, “Fourth Amendment rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry cannot disregard the schools’ custodial and tutelary responsibility for children.” Id. at 656. The Supreme Court found that the school board had an important interest in deterring drug use among student athletes because they are at an age “when the physical, psychological, and addictive effects of drugs are most severe,” because “the effects of a drug-infested school are visited . . . upon the entire student body and faculty, as the education process is disrupted,” and because, with school athletics, “the risk
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of immediate physical harm to the drug user or those with whom he is playing his sport is particularly high.” Id. at 661-62. The Court concluded that “a drug problem largely fueled by the ‘role model’ effect of athletes’ drug use, and of particular danger to athletes, is effectively addressed by making sure that athletes do not use drugs.” Id. at 663.
On the other side of the scale, the Supreme Court found that student athletes had lower expectations of privacy because their activities typically involved dressing and showering in public locker rooms and submitting to mandatory preseason physical exams, as well as complying with other eligibility requirements. Id. at 657. “Somewhat like adults who choose to participate in a ‘closely regulated industry,’ students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges, including privacy.” Id. Measured against the school board’s substantial need, the Court held that the invasion of privacy was not significant, and therefore that the “[p]olicy is reasonable and hence constitutional.” Id. at 665. Notably, however, the Court “caution[ed] against the assumption that suspicionless drug testing will readily pass constitutional muster in other contexts.” Id.
After Vernonia, the Supreme Court also upheld a policy requiring drug tests for all public middle and high school students who participated in competitive extracurricular activities, including athletics but also the Academic Team, Future
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Farmers of America, band, choir, and cheerleading. See Bd. of Educ. of Indep. Sch. Dist. No. 92 of Pottawatomie Cnty. v. Earls, 536 U.S. 822, 826 (2002). The Supreme Court interpreted Vernonia as “depend[ing] primarily upon the school’s custodial responsibility and authority,” id. at 831, and explained that “[t]he health and safety risks identified in Vernonia apply with equal force” to the population of school children in Earls, particularly because the school district “presented specific evidence of drug use at [its] schools.” Id. at 834. “Given the nationwide epidemic of drug use, and the evidence of increased drug use in Tecumseh schools, it was entirely reasonable for the School District to enact this particular drug testing policy.” Id. at 836. Still, the Court “refuse[d] to fashion what would in effect be a constitutional quantum of drug use necessary to show a ‘drug problem,’” explaining that it “has not required a particularized or pervasive drug problem before allowing the government to conduct suspicionless drug testing” when circumstances otherwise create a necessarily immediate danger. Id. at 835-36.
By contrast, in Chandler the Supreme Court refused to recognize a special need justifying Georgia’s mandatory drug testing of candidates for designated state offices because the program did “not fit within the closely guarded category of constitutionally permissible suspicionless searches.” 520 U.S. at 308. Georgia claimed that suspicionless testing was justified by “the incompatibility of unlawful drug use with holding high state office,” particularly because “the use of illegal
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drugs draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions, including antidrug law enforcement efforts; and undermines public confidence and trust in elected officials.” Id. at 318. The Supreme Court found no “indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.” Id. at 319. Unlike in Skinner and Vernonia, the Georgia “statute was not enacted . . . in response to any fear or suspicion of drug use by state officials.” Id. In addition, the scheme was not a credible deterrent of illegal drug use because candidates could schedule their own tests, which allowed them to time their drug use to avoid detection, and candidates for public office already “are subject to relentless scrutiny.” Id. at 320-21. The Supreme Court saw no significance to the message the State sought to send by testing politicians: “The need revealed . . . is symbolic, not ‘special,’ as that term draws meaning from our case law.” Id. at 322; see id. (“[I]f a need of the ‘set a good example’ genre were sufficient to overwhelm a Fourth Amendment objection, then the care this Court took to explain why the needs in Skinner, Von Raab, and Vernonia ranked as ‘special’ wasted many words in entirely unnecessary, perhaps even misleading, elaborations.”).
These precedents establish and enforce the principle that “the proffered special need for drug testing must be substantial -- important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the
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Fourth Amendment’s normal requirement of individualized suspicion.” Id. at 318. With that in mind, we turn to the application of the doctrine in this case. In the special needs balancing calculus, “[t]he first factor to be considered is the nature of the privacy interest upon which the search here at issue intrudes.” Vernonia, 515 U.S. at 654. However, as we explained in Lebron I, we need not weigh competing individual and governmental interests unless the State satisfies its burden of establishing a special need for its suspicionless drug-testing program. 710 F.3d 1214 (citing T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in judgment)); see Chandler, 520 U.S. at 318 (declaring a suspicionless drug-testing program unreasonable when the state failed to show a substantial need, even though “if the ‘special needs’ showing had been made, the State could not be faulted for excessive intrusion”). The State argues that, by seeking TANF benefits, applicants voluntarily subject themselves to heightened regulation, and thus have limited legitimate expectations of privacy. Cf. Vernonia, 515 U.S. at 657 (“By choosing to ‘go out for the team,’ [student-athletes] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally.”); Von Raab, 489 U.S. at 671 (“[T]hose who join our military or intelligence services . . . may expect intrusive inquiries into their physical fitness . . . .”).
Of course, citizens do not abandon all hope of privacy by applying for government assistance. By virtue of poverty, TANF applicants are not stripped of
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their legitimate expectations of privacy -- they are not employees in dangerous vocations or students subject to the parens patriae power of the state. And “the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable.” Skinner, 489 U.S. at 617. But even if TANF applicants had reduced expectations of privacy -- and the record supports no such inference -- the State first must demonstrate a substantial special need.
On this record the State has failed to meet its burden on the “core issue” of whether a special need justifies suspicionless searches of TANF applicants. Chandler, 520 U.S. at 318. The State argues that the following interests -- the same ones it invoked in Lebron I -- qualify as special needs sufficient to permit mandatory drug testing of TANF applicants: “(1) ensuring TANF participants’ job readiness; (2) ensuring the TANF program meets its child-welfare and familystability goals; and (3) ensuring that public funds are used for their intended purposes and not to undermine public health.” Lebron, 990 F. Supp. 2d at 1291. Encouraging employability, protecting children, and conserving public funds are general -- and unquestionably legitimate -- public concerns. But empirical evidence indicates these needs are not specific to or special for TANF applicants, nor is drug testing essential to ensuring the success of the TANF program as a whole. The government’s stated needs are general concerns, proffered only at a high level of abstraction and without empirical evidence, and thus do not justify an
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exception to the Fourth Amendment. The State claims, nevertheless, an interest in preparing TANF applicants for the workplace. But government generally wants its citizens to be able to find and keep jobs -- the State does not desire work-readiness only for the TANF population. Similarly, while it claims an interest in protecting children from drug use by TANF parents, the State has presented no evidence that children of TANF parents face a danger or harm from drug use that is different from the general threat to all children in all families. After all, the State acknowledges that drug use harms all individuals and families, but the State does not -- and cannot -- claim an entitlement to drug test all parents of all children.
Nor do we see a special need from the State’s desire that government funds are spent wisely. An interest in fiscal responsibility inheres in all public programs, and the interest is real. See Lebron I, 710 F.3d at 1220-21 (Jordan, J., concurring) (“Every expenditure of state dollars, taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved.”). “[T]he nature and immediacy of the governmental concern at issue here” is ordinary, not exceptional. Vernonia, 515 U.S. at 660; cf. AFSCME, 717 F.3d at 876 (“The State’s abstract
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reasons do not fit within the narrow scope that the Supreme Court has given to the special-needs exception . . . . [I]f those reasons could suffice, then there would never be any need to balance anything . . . .”). The State has presented no evidence demonstrating that drug testing saves a significant portion of TANF funds that would otherwise be spent on drugs. Indeed, the State has made no attempt to quantify even in a general way the amount of TANF money that is otherwise wasted on the purchase or use of drugs. Nor could it do so on the record that was presented to the district court. A government concern that a wholly undefined, albeit a very small, share of a program’s expenditures will be squandered cannot easily fit within the closely guarded category reserved for substantial special needs without exploding that carefully cultivated doctrine.
We do not foreclose (nor could we) the possibility that government could establish a special need if a voluntary benefits program as a whole would be rendered ineffective without suspicionless searches. In the area of unconstitutional conditions, courts have considered the germaneness of an incursion on constitutional rights to the government’s legitimate objectives. See, e.g., Dolan v. City of Tigard, 512 U.S. 374, 386 (1994) (requiring that courts determine whether an “essential nexus” exists between the “legitimate state interest” and the condition imposed by the government). A similar germaneness analysis might justify a special need for suspicionless drug testing when essential to the implementation of
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a voluntary government benefits program. Thus, for example, if the government sponsored experimental pharmaceutical trials, it might have a unique concern in drug testing participants to ensure drug interactions did not compromise the results or endanger participants. Similarly, if a state provided a free drug treatment program, it might have a special need to test participants to monitor progress and tailor treatment. In this case, and on this record, however, suspicionless drug testing of all TANF applicants comes nowhere near meeting this standard -- the State has not demonstrated that the TANF program as a whole has been compromised without suspicionless searches. Quite simply, we see no essential nexus between the legitimate state interest and the condition imposed. Put differently, the fit is not reasonably proportionated to the harms the State seeks to avoid.
The State argues, nevertheless, that its broadly applicable interests are special because drug use concerns are particularly strong for TANF applicants, but it has not presented a persuasive theoretical or empirical account of a unique problem among TANF applicants. First, no concrete danger exists as a theoretical matter: we have no reason to think impoverished individuals are necessarily and inherently prone to drug use, or, for that matter, are more prone to drug use than the general population. Nor does the State give a reason to think that, if TANF applicants use drugs, that use is somehow different from drug use by the general
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population. Without an obvious and palpable danger, the State makes an empirical claim that a drug-use problem exists among Florida TANF applicants. “While ‘[a] demonstrated problem of drug abuse, [is] not in all cases necessary to the validity of a testing regime,’ such evidence could ‘clarify’ and ‘substantiate’ the dangers presented by such drug use and whether those dangers were pertinent to the government’s asserted special need for drug testing.” Lebron I, 710 F.3d at 1212 (alterations in original) (quoting Chandler, 520 U.S. at 319). Notably, however, the district court found an absence of any showing of pervasive drug use among the Florida TANF population on the summary judgment record: “Even considering the State’s evidence presented to date, the Court finds that there is no material dispute concerning whether drug use has been shown to be a ‘demonstrated problem’ among Florida TANF recipients.” Lebron, 990 F. Supp. 2d at 1293.
Viewing all of the facts in the light most favorable to the State, we agree with the district court that the State has failed to establish a demonstrable or peculiar drug-use problem among TANF applicants. If anything, the evidence extant suggests quite the opposite: that rates of drug use in the TANF population are no greater than for those who receive other government benefits, or even for the general public. As we detail below, the evidence in the summary judgment record does not empirically demonstrate a TANF population drug-use problem.
1.
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Well before § 414.0652 was enacted, the State’s own DCF, at the direction of the Florida legislature, conducted a study -- dubbed the Demonstration Project -to test empirically whether TANF applicants were likely to abuse illegal drugs and whether that abuse affected employment opportunities. The study was conducted between January 1, 1999, through May 31, 2000, in select regions of the state by Dr. Robert E. Crew, a professor at Florida State University. The Demonstration Project first gave TANF applicants a written screening instrument to determine the probability that they abused drugs or alcohol.4 Based on the screening, any applicant that the DCF had reasonable cause to believe engaged in the use of illegal drugs was required to take a urine test. Applicants who failed the urine test were required to undergo treatment to receive benefits. In total, the Demonstration Project initially screened 8,797 individuals. Of those, 2,335 did not complete the application process, which the study concluded was “in line with the historical data on ‘non-application completers.’” The researchers rejected the notion that many of these drop-outs were drug users deterred by the testing and treatment requirements, because those who passed and those who failed at each stage of drug-use assessment dropped out at about the same rate. Of the 6,462 applicants who went through the initial screening procedure and followed through with their applicants,
4 The Demonstration Project used the Substance Abuse Subtle Screening Inventory, or SASSI, which was developed by psychologist Glen A. Miller in 1977 to differentiate between substance abusers and non-abusers, regardless of the test subject’s denial or deliberate deception.
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1,447 were required to submit to urinalysis -- the remaining 76.6% demonstrated little or no evidence of a substance abuse problem based on the written screening. From the population that underwent the urinalysis testing, 335 failed. Ultimately, then, the study revealed that only 5.2% of those who completed their TANF applications tested positive for illegal use of a controlled substance (335 out of 6,462). Notably, the researchers also found no evidence that TANF recipients who tested positive for illicit substances were any less likely to find work than those who tested negative.
Data collected during the brief implementation of § 414.0652 suspicionless drug testing was altogether consistent with the Demonstration Project results. Preliminary numbers showed that only 2.67% of the TANF applicants who submitted to urinalyses under § 414.0652 tested positive for controlled substances - 108 out of 4,046. Lebron, 990 F. Supp. 2d at 1286. The State argues that this number is artificially depressed because thousands of eligible TANF applicants failed to take the test and complete their application. As the district court pointed out, however, the State offers no way to tell how many incomplete applications came from drug users, and how many instead were cut short because applicants were deterred by other factors, including: the desire not to surrender Fourth Amendment rights; the inability to afford the test; or the difficulty finding a nearby testing location or securing transportation. Id. at 1294. And, as the Demonstration
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Project noted, historically a high number of applicants fail to complete their TANF applications, with or without a drug test requirement. The long and the short of it is that the district court fairly concluded on this record that the number of TANF applicants to test positive for illegal drugs during the brief operation of the program can only support the Demonstration Project findings of low rates of drug use. Whatever else can be said about these figures, they do not help the State meet its heavy burden of demonstrating a substantial special need.
2. The district court found that no other competent evidence in the record showed elevated rates of drug use among the Florida TANF population. After careful review, we agree. The State points to testimony from expert and lay witnesses that the district court determined either would have been inadmissible at trial or irrelevant to the prevalence of drug usage among TANF applicants. The district court committed no manifest error with these rulings. To begin with, the district court did not abuse its considerable discretion in refusing to consider the expert testimony of Dr. Avram Mack. “[T]he deference that is the hallmark of abuse-of-discretion review requires that we not reverse an evidentiary decision of a district court unless the ruling is manifestly erroneous.” United States v. Frazier, 387 F.3d 1244, 1258 (11th Cir. 2004) (en banc) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142, 143 (1997)) (internal quotation marks
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and citations omitted). Thus, the district court’s discretion is broad: “the abuse of
discretion standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.” Id. at 1259 (quoting Rasbury
v. I.R.S., 24 F.3d 159, 168 (11th Cir. 1994)) (internal quotation marks omitted);
see Joiner, 522 U.S. at 143 (“On a motion for summary judgment, disputed issues
of fact are resolved against the moving party -- here, petitioners. But the question
of admissibility of expert testimony is not such an issue of fact, and is reviewable
under the abuse-of-discretion standard.”).
Federal Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fed. R. Evid. 702. Thus, before permitting expert testimony, trial courts must
engage in a rigorous three-part inquiry, asking whether:
(1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert
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reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert[v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)]; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue. Frazier, 387 F.3d at 1260 (quoting City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998)). As the proponent of the expert, plainly the State bears the burden of establishing qualification, reliability, and helpfulness. Id. Before the district court, the State proffered expert testimony from Dr. Mack, a practicing psychiatrist and professor of clinical psychiatry at Georgetown University School of Medicine who practiced and taught in Washington, D.C., in a range of psychiatric and medical fields, including in the areas of drug use and related disorders. In a declaration and an expert report, Dr. Mack opined about the general detrimental effects of drug use on individuals, their families, and job performance, and also opined that drug use among TANF applicants and recipients is greater than among the general population. Specifically, Dr. Mack said in a declaration that, based on his expertise and study, it was his opinion that within the TANF population at least five percent of adults had a drug use disorder (compared with two percent in the general population) and twenty percent had used drugs within the past year (against approximately five percent of the general population). As for his testimony concerning rates of drug use in the Florida TANF population, the district court rejected Dr. Mack’s opinion, concluding that he was
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not sufficiently qualified by background, training, or expertise to offer the opinions he presented. The district court explained that, while Dr. Mack had authored articles and books about drug-related issues, and taught about drug-related disorders, he had never studied, surveyed, or collected any information on the TANF population in any context, much less TANF applicants in Florida. Lebron, 990 F. Supp. 2d at 1294. Indeed, there is no evidence in this record that Dr. Mack had conducted any studies about the prevalence of drug abuse among any discrete segments of the population. According to Dr. Mack’s testimony, his opinion was based solely on publications from other researchers. Id. But before an expert can properly rely on appropriate studies in the field, the proponent of the expert must establish that these studies are indeed the kinds of studies an expert in the field would rely on -- and the district court did not abuse its discretion in deciding that Dr. Mack was not an expert in the relevant field. See Fed. R. Evid. 703 (“If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”).
Expertise in one field does not qualify a witness to testify about others. See Increase Minority Participation by Affirmative Change Today of Nw. Fla., Inc. v. Firestone, 893 F.2d 1189, 1192, 1195 (11th Cir. 1990) (finding no abuse of discretion when a district court excluded expert testimony from a political scientist
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who sought to offer a statistical opinion beyond his expertise); see also Dura Auto. Sys. of Ind., Inc. v. CTS Corp., 285 F.3d 609, 614 (7th Cir. 2002) (“A scientist, however well credentialed he may be, is not permitted to be the mouthpiece of a scientist in a different specialty.”). Dr. Mack has a background in clinical psychiatry and the treatment of drug abuse, not social science or statistics. But the crux of Dr. Mack’s testimony was a claim about the rates of drug use among the TANF population. A social scientist or statistician with experience in conducting surveys and parsing their results, and extrapolating conclusions about populations from limited samples of information, would be in a position to reliably draw such an inference; a clinical psychiatrist may not be. The State put forward precious little to suggest he was qualified “by knowledge, skill, experience, training, or education” to testify about rates of drug use across demographic groups, particularly among TANF applicants. Fed. R. Evid. 702. Dr. Mack admitted that he had never previously conducted any research regarding TANF or TANF in Florida and that he reached his opinion instead by relying on studies. Dr. Mack claimed no prior experience with or knowledge of drug use among Florida’s TANF population. He stated that he had not examined Lebron or any member of the putative class -- all past, present, or future TANF applicants who could be subject to § 414.0652. And Dr. Mack did not claim to have any background in studying the rates of drug use in any demographic group. Dr. Mack did not “propos[e] to
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testify about matters growing naturally and directly out of research [he had] conducted independent of the litigation.” Fed. R. Evid. 702, Advisory Comm. Notes (2000 Amendments) (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311, 1317 (9th Cir. 1995)). Instead, in an area that he did not otherwise specialize in, Dr. Mack “developed [his] opinions expressly for purposes of testifying.” Id. The long and short of it is that the district court acted well within its discretion (nothing it did was manifestly erroneous) when it determined that Dr. Mack was not qualified by background, training, or expertise to opine about the degree of drug use in Florida’s TANF population.
Nor did the district court abuse its considerable discretion in determining that Dr. Mack’s testimony about the general effects of drug use would not assist the trier of fact. As we’ve explained, the ills associated with drug use in the overall population (although well and generally understood) do not support a special need absent some particular concern about Florida TANF recipients. The court did not manifestly err in concluding that expert testimony about the effects of drug abuse on individuals, families, and employment prospects in the general population in no way would have helped the district court as the trier of fact.
The State now argues that the underlying articles relied upon by Dr. Mack were separately admissible and provided independent support for the State’s argument that drug use in the TANF population exceeds rates in the general
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population. To weigh against summary judgment, these reports must have been admissible at trial. But with Dr. Mack excluded, the State did not put forward a qualified expert to present them. See Fed. R. Evid. 803 (permitting the admission of statements “contained in a treatise, periodical, or pamphlet” when “the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination” and when “the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice”); Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir. 1985) (admission of medical articles improper where plaintiff’s medical expert did not testify about the disputed articles); Williams Island Synagogue, Inc. v. City of Aventura, 329 F. Supp. 2d 1319, 1323 (S.D. Fla. 2004) (“[L]earned treatises are inadmissible as hearsay on summary judgment where no expert witness testimony supports the proposition asserted by way of the treatise.”); 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:102 (4th ed. 2014) (“[T]reatises must . . . be offered with expert testimony.”).
Nevertheless, the State claims that the district court had the authority to take judicial notice of the articles because they contained legislative, not adjudicative facts. See Fed. R. Evid. 201, Advisory Comm. Notes (1972 Proposed Rules). But, notably, the State did not ask the district court to take judicial notice of the studies in its summary judgment filings, nor did it argue in the district court that these
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studies amounted to legislative facts, nor finally did the district court take judicial notice. Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012) (“It is well-settled that we will generally refuse to consider arguments raised for the first time on appeal.”). Even, however, if the State had properly preserved this argument (and it did not), we would review a district court’s decision not to take judicial notice only for abuse of discretion. See Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1273 (11th Cir. 2014). On this record we can discern nothing indicating that the district court abused its ample discretion in not taking judicial notice of the studies.
Having rejected Mack’s expertise, the district court was left with studies about which it could not readily determine methodological soundness or reliability, nor establish their relevance to the TANF population in Florida. For example, almost all of the key articles cited rely on data culled from surveys, either past versions of the National Survey on Drug and Health (formerly the National Household Survey on Drug Abuse) or other regional surveys. Significant methodological questions must be answered before the reliability of these reports can be assured, including whether surveys are a reliable method of determining rates of drug abuse in a population, whether the samples relied on are sufficiently large and unbiased, and whether the results can be extrapolated to the TANF population at issue in this case. On this record, however, we have no expert to tell
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us anything about these important foundational problems. Moreover, none of the articles cited dealt specifically with the Florida TANF
population, so their applicability to the case at hand is by no means self-evident. For example, as the district court noted, one of the studies involved single mothers receiving TANF benefits in Cook County, Illinois ten years ago. Lebron, 990 F. Supp. 2d at 1294. Another study looked at survey data from the TANF population of an unnamed California county in 2001. Without a qualified expert to comment on the extent to which these results can be extrapolated to the population at issue in this case -- a population with a different composition, in a different place, at a different time -- the reliability and relevance of these reports cannot readily be determined.
In addition, some of these articles were referenced by the State at the preliminary injunction stage; at that early point in the proceeding, the district court found they did “not support the conclusion that drug abuse is a ‘concrete danger’ among the class of citizens that the State seeks to drug test,” Lebron, 820 F. Supp. 2d at 1287, and our prior panel opinion held that “the district court did not err in rejecting, as irrelevant or non-persuasive, the reports concerning drug use in the welfare populations.” Lebron I, 710 F.3d at 1211 n.6.
Although courts of appeals may at times take judicial notice of legislative facts sua sponte, see Landell v. Sorrell, 382 F.3d 91, 135 n.24 (2d Cir. 2004)
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(noting that “appellate courts take judicial notice of legislative facts under appropriate circumstances,” especially on “straightforward questions” where the court does not “lack[] substantial experience or expertise”), the preceding considerations convince us that it would be inappropriate to do so here. We are hard-pressed to ascribe significance to these studies without an appropriately credentialed expert to vet them.
3. The district court also disregarded as inadmissible or irrelevant testimony from three lay witnesses presented by the State. Michael Carroll and Peter Digre, both employees of DCF, submitted declarations in support of the contention that a drug problem exists in Florida’s TANF population. Carroll said that he had firsthand observed a strong correlation between drug use and employment, as well as drug use and poverty, and had observed drug use as a substantial barrier to employment for the population likely to participate in TANF. Carroll added that he had personally observed hundreds of TANF applicants who appeared to be under the influence of drugs, and that TANF recipients are more likely to use drugs than recipients of other government benefits. Digre said he had personally observed the harms of drug use in the TANF population, and a correlation between drug use and unemployability. The State also presented deposition testimony from Bruce Ferguson, an employee of a private, not-for-profit entity that helps
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individuals receiving public assistance find work. Ferguson testified in a deposition that, as part of his job, he referred individuals to a substance abuse facility when they self-identified as having a drug problem, and that forty-two clients had self-disclosed a drug or alcohol problem during a ninety-day period.
The district court found that the evidence submitted by the State from Carroll, Digre, and Ferguson was inadmissible and could not have been reduced to admissible evidence at trial. According to the court, the conclusory statements of Carroll and Digre about links between drug use and poverty or employability were incompetent as a matter of law: Carroll and Digre were not qualified as experts, and their opinions were offered without support from any relevant studies or empirical data. Moreover, Carroll’s claim that he had observed TANF applicants who appeared to be under the influence of drugs was not based on any expertise in assessing drug use by observation. Lebron 990 F. Supp. 2d at 1295-96. In addition, the district court explained, even if evidence from Carroll, Digre, and Ferguson was admissible, it would not have helped the State meet its burden of establishing a substantial special need. Carroll said he had observed drug use as a problem for employment among the population “likely” to participate in TANF, but this did not help the State establish an actual drug problem within the TANF population. Id. at 1296. Similarly, the district court noted that Ferguson’s testimony about self-reports of drug and alcohol abuse from individuals receiving
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public assistance did not specify whether those who reported were TANF recipients or, indeed, whether they reported an alcohol problem, which would not affect an applicant’s TANF eligibility under § 414.0652, as opposed to a drug problem. Id. We review the district court’s ruling on the admissibility of lay testimony for clear abuse of discretion. See United States v. Jayyousi, 657 F.3d 1085, 1102 (11th Cir. 2011).
The district court did not abuse its discretion in rejecting the testimony of the state’s lay witnesses. To be admissible, lay testimony must be (1) “rationally based on the perception of the witness,” (2) “helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,” and (3) “not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701. This rule of evidence is designed to prevent parties from “proffering an expert in lay witness clothing” by ensuring that “testimony that is actually expert” passes the strictures of Rule 702. Id., Advisory Comm. Notes (2000 Amendments). While lay witnesses may testify about their own immediate perceptions, testimony that blurs into supposition and extrapolation crosses the line into expertise. See Williams v. Mast Biosurgery USA, Inc., 644 F.3d 1312, 131718 (11th Cir. 2011) (treating testimony as expert when it “is based on a hypothesis, not the experience of” the witness); United States v. Henderson, 409 F.3d 1293, 1300 (11th Cir. 2005) (“the ability to answer hypothetical questions is ‘[t]he
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essential difference’ between expert and lay witnesses” (quoting Asplundh Mfg. Div. v. Benton Harbor Eng’g, 57 F.3d 1190, 1202 n.16 (3d Cir.1995)).
In this case, the testimony of Carroll and Digre plainly was offered to support the broad claim that there is a particularly high rate of drug use in the Florida TANF population. This proposition is an inference well beyond what the witnesses had perceived in their day-to-day work; it is a conclusion that would require “specialized knowledge,” Fed. R. Evid. 701, and must be provided by an appropriately credentialed expert witness to be admissible. Broad statements asserting “a strong correlation” between “drug use and unemployability” and “drug use and poverty,” or claiming that “TANF recipients are more likely than recipients of other government benefits to use drugs” are beyond the realm of the lay witness. To support these claims, it seems to us that a witness would have to know, among other things, the rates of drug use, employment, and income across multiple populations and perform the sophisticated calculation of drawing correlations across these various factors. Carroll, Digre, and Ferguson, who had no training either in identifying the victims of drug abuse or studying the Florida TANF population, were not qualified by “knowledge, skill, experience, training, or education,” Fed. R. Evid. 702, to testify on these grounds, and their anecdotal observations could not support the sweeping claims for which they were offered. And, again, there is no expert to make anything of these claims.
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Moreover, even if the testimony were allowable under Rule 701, nothing in the proffers from Carroll, Digre, and Ferguson support a special need for suspicionless testing. To begin with, general statements about the harms flowing from drug abuse, while undeniably true, do not inform this inquiry. Nor do their other statements demonstrate a drug problem among Florida TANF applicants greater than any problem found in the general population of Florida. First, Carroll declared that, in his more than twenty years with DCF, he had “personally observed hundreds of TANF applicants who appear to be under the influence of drugs,” had “frequently observed slurred speech, bloodshot eyes, inability to focus, and other similar symptoms that indicated to me the applicants were using drugs,” and in many instances had “personally detected the odor of marijuana on applicants.” This anecdotal observation comes nowhere close to supporting a population-wide trend. Observation of hundreds of drug users in twenty years (or “many instances” of smelling marijuana) may be entirely consistent with the five percent drug use figure found in the Demonstration Project; again, without a qualified expert, it is impossible to extrapolate these observations into conclusions about the Florida TANF population. Further, the symptoms Carroll identifies -slurred speech, bloodshot eyes, difficulty focusing -- could just as easily indicate alcohol intoxication, not drug use. And, again, this witness was not qualified by training, background, and expertise as an expert in discerning drug use or abuse.
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The statements from Digre are even less revealing; he provides no evidence
that would support an inference that drug use is more prevalent among the TANF
population. Finally, Ferguson’s testimony that forty-two individuals receiving
public assistance self-reported drug or alcohol problems says nothing about drug
use in the TANF population: Ferguson did not identify which benefits programs
the individuals participated in or whether drugs, and not alcohol, were behind the
self reports.5 Thus, even if taken as true, none of the evidence from Carroll, Digre,
or Ferguson helped the State meet its special needs burden.6
The State also argues that the Supreme Court in Earls relied on anecdotal
evidence to establish a special need to drug test students: teachers had seen
students who appeared to be on drugs and had heard students speaking openly
about drug abuse. 536 U.S. at 834-35. This argument misses the mark because
Earls involved public school children, a group especially entrusted to the
5 The district court also did not abuse its discretion in determining that Ferguson’s testimony was not only unhelpful to the State’s argument but also inadmissible hearsay. Ferguson’s testimony about the number of clients with disclosed drug or alcohol problems over a ninety day period was drawn from caseload information he had received in an e-mail from an undisclosed declarant. Since this declarant did not testify and the statement was offered for its truth, see Wright v. Farouk Sys., Inc., 701 F.3d 907, 910 (11th Cir. 2012), we conclude that the district court did not abuse its discretion in finding the statement to be hearsay. 6 Before the district court, the State also proffered a declaration from Patricia Brown, a systems analyst employed by DCF. Brown conducted a data-matching exercise that attempted to compare rates of drug use among Florida TANF, Medicaid, and SNAP (food stamps) recipients by cross-referencing records in the DCF’s files. The district court ruled that the evidence from Brown was inadmissible hearsay, and that it was irrelevant to the issue in the case because, among other reasons, it looked at rates of substance abuse and misuse, which did not differentiate alcohol from drug use. . The State does not challenge on appeal the district court’s decision to exclude evidence from Brown.
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government’s care and demonstrably susceptible to harm from drug use. These powerful special circumstances are not found for Florida TANF applicants. The long and short of it is that, on this summary judgment record, the State has failed to demonstrate a peculiar problem of drug abuse among Florida TANF applicants that elevates the state’s concern from a general to a special interest.
Moreover, even if the State could have established that an unusual rate of drug use among TANF applicants gave rise to a special need -- and this record supports no such determination -- the § 414.0652 drug-testing program is not well designed to identify or deter applicants whose drug use will affect employability, endanger children, or drain public funds. Notably, TANF applicants are given a ten-day window in which to take and pass a drug test once the State has confirmed that they are otherwise TANF-eligible. And the clock for the whole process does not start until the application is submitted -- a step the TANF applicant plainly controls. Thus, as in Chandler, the test date “is no secret”; “users of illegal drugs, save for those prohibitively addicted, could abstain for a pretest period sufficient to avoid detection.” 520 U.S. at 320.
In short, the State has not met its core burden of establishing a substantial special need justifying suspicionless drug testing. The State has not shown elevated rates of drug use among TANF applicants. The State’s asserted interests in promoting work, protecting families, and saving public money are stated only at
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the highest order of generality and are all-inclusive. In cases involving surpassing safety threats or public school students, the Supreme Court has carefully cordoned off a category reserved for exceptional circumstances. If the general government concerns raised in this case sufficed for special needs, the Supreme Court in Skinner, Von Raab, Vernonia, Earls, and Chandler spilled much ink in vain.
B. Alternatively, the State argues, even if its suspicionless drug-testing regime otherwise would run afoul of the Fourth Amendment, all constitutional concerns are cured by the consent of TANF applicants because “a search conducted pursuant to a valid consent is constitutionally permissible.” Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). After all, TANF is a voluntary program. Applicants must sign a form consenting to the drug test and must follow through with the screening themselves. Lebron responds that, when “the State attempts to justify a search on the basis of . . . consent, the Fourth and Fourteenth Amendments require that it demonstrate that the consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.” Id. at 248. The law of this case, and Eleventh Circuit precedent, lead us to reject the consent argument. Moreover, treating consent as a separate and dispositive inquiry -- rather than a component of the broader special-needs balancing test -- is not consonant with the Supreme Court’s approach to evaluating suspicionless drug-testing programs.
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In Lebron I, the Court rejected the State’s argument that “the mandatory ‘consent,’ which Florida’s drug-testing statute makes a condition to the receipt of benefits, is of any constitutional significance.” 710 F.3d at 1214. The panel opinion explained that consent is invalid if it is “granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” Id. (quoting Johnson v. United States, 333 U.S. 10, 13 (1948)). It concluded that, by conditioning TANF benefits on drug testing, “the State conveys a message that it has the unfettered lawful authority to require such drug testing -- period.” Id. at 1215. We also concluded that, because Florida cannot conduct suspicionless drug tests of TANF applicants directly, “it cannot do so indirectly by conditioning the receipt of this government benefit on the applicant’s forced waiver of his Fourth Amendment right.” Id. at 1217. After all, government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests.” Perry, 408 U.S. at 597; accord Regan v. Taxation with Representation of Wash., 461 U.S. 540, 545 (1983) (“[T]he government may not deny a benefit to a person because he exercises a constitutional right.”); see Speiser v. Randall, 357 U.S. 513, 519 (1958) (striking down a state tax exemption denied to claimants who advocated overthrow of the government as unconstitutionally restricting freedom of speech). Under the law of the case doctrine, we are bound to the legal conclusion that the TANF program’s mandatory consent does not ensure the search is reasonable under the
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Fourth Amendment. There is no indication that the law has changed since Lebron I was decided or that any of the substantive evidence considered by the district court altered this conclusion.
Indeed, subsequent Eleventh Circuit law has echoed the conclusion reached in Lebron I. In AFSCME, Florida argued that mandatory drug testing of public employees was reasonable because employees consented to the testing rather than lose their jobs. As we explained, “[i]n effect, the State is offering its employees this Hobson’s choice: either they relinquish their Fourth Amendment rights and produce a urine sample which carries the potential for termination, or they accept termination immediately.” AFSCME, 717 F.3d at 873. We were not persuaded by the argument because employees’ submission to drug testing on pain of termination did not constitute consent under governing Supreme Court law. Id. at 873-74.
Again, no new material facts have emerged in the summary judgment record that alter the outcome under the legal principles laid out in Lebron I, or, for that matter, in AFSCME. The State says that deposition testimony from Lebron indicates that he freely signed the consent form and knew he could refuse the drug test, albeit at the expense of his TANF eligibility. This fact does not affect the result because “[s]urrendering to drug testing in order to remain eligible for a government benefit such as employment or welfare, whatever else it is, is not the
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type of consent that automatically renders a search reasonable as a matter of law.” AFSCME, 717 F.3d at 875.
We also see no merit to the State’s argument that two recent Supreme Court decisions regarding unconstitutional conditions abrogated our holding in Lebron I, or altered the conclusion drawn in AFSCME, concerning consent. Neither case called into question, much less clearly overruled, our earlier decisions -- instead, both cases involved significantly different constitutional rights and both held that government conditions were unconstitutional. See NLRB v. Datapoint Corp., 642 F.2d 123, 129 (5th Cir. Apr. 1981) (“Without a clearly contrary opinion of the Supreme Court or of this court sitting en banc, we cannot overrule a decision of a prior panel of this court.”).7
In Agency for International Development v. Alliance for Open Society International, Inc. (AID), 133 S. Ct. 2321, 2324 (2013), the Supreme Court addressed a condition in a federal foreign aid grant program requiring that nongovernment organizations have an explicit policy opposing prostitution and sex trafficking in order to receive funds to fight the global spread of HIV and AIDS. The Court held that the condition violated recipients’ freedom of speech by compelling them to “adopt a particular belief as a condition of funding.” Id. at 2330. In so doing, the Court explained that in the First Amendment context
7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding all Fifth Circuit precedent handed down before October 1, 1981.
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funding conditions can be acceptable when they “define the limits of the government spending program,” but are impermissible when they “seek to leverage funding to regulate speech outside the contours of the program itself.” Id. at 2328. This case provides little help for the State. It arises in the context of the First Amendment, and in no way involved suspicionless drug testing; therefore the Court had no occasion to consider the special needs doctrine. Moreover, the Court noted that, in the First Amendment context, the recipient’s mere “recourse . . . to decline the funds” does not cure any funding condition of constitutional infirmity. Id. at 2329.
Next, in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586, 2595 (2013), a property takings case, the Court applied its decades-old doctrine that the government can “condition approval of a [building] permit on the dedication of property to the public so long as there is a ‘nexus’ and ‘rough proportionality’ between the property that the government demands and the social costs of the applicant’s proposal” (quoting Dolan, 512 U.S. at 391 and Nollan v. Cal. Coastal Comm’n, 483 U.S. 825, 837 (1987)). This case is equally unavailing. The Court recognized that takings cases “involve a special application” of the unconstitutional conditions doctrine, id. at 2594 (quoting Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 547 (2005)), far afield from the Fourth Amendment considerations at issue here. What’s more, the Court reaffirmed that “the
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unconstitutional conditions doctrine forbids burdening the Constitution’s
enumerated rights by coercively withholding benefits from those who exercise
them.” Id. at 2595. These decisions in no way upset our construction of consent as framed in Lebron I, or, for that matter, in AFSCME.8
Moreover, we need not ask separately whether consent to a suspicionless
drug test was valid when conditioned on receipt of a government benefit because,
in this case, the unconstitutional conditions inquiry is baked into the special needs
analysis. Under the analytical framework laid out in Lebron I, and, indeed, in
AFSCME, when the government conducts suspicionless drug testing, consent
exacted as a condition of receiving a benefit is a factor in the special needs
analysis, not an alternative path around Fourth Amendment requirements. See
AFSCME, 717 F.3d at 874 (“[C]onsent has already been adequately incorporated
into the special-needs balancing test, which obliges us to evaluate whether an
employee’s choice of profession necessarily diminishes her expectation of
privacy.”); see also Vernonia, 515 U.S. at 657 (“By choosing to ‘go out for the
team,’ [student athletes] voluntarily subject themselves to a degree of regulation
8 We also see no merit to the State’s argument that Lebron I or AFSCME were affected by United States v. Yeary, 740 F.3d 569 (11th Cir. 2014). In Yeary, a criminal defendant who had made specific threats to kill his girlfriend consented to warrantless entries and searches of his home to ensure he did not engage in illegal activity as a condition of pre-trial release, to which he had no entitlement. Id. at 580-83. A majority of the Yeary panel held that the consent was valid to justify a search of the defendant’s home. Id. at 583. This case from the criminal context hardly calls into question our holdings concerning the validity of consent to suspicionless drug testing from TANF applicants in Lebron I or government employees in AFSCME.
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even higher than that imposed on students generally.”); Von Raab, 489 U.S. at 656 (finding that employees’ choice of “certain forms of public employment may diminish privacy expectations even with respect to . . . personal searches”); Ferguson v. City of Charleston, 532 U.S. 67, 91 (2001) (Kennedy, J., concurring in the judgment) (“[C]onsent, and the circumstances in which it was given, bear upon the reasonableness of the whole special needs program.”).
Treating consent as a separate and dispositive inquiry would eviscerate the Supreme Court’s carefully delineated special needs analysis in drug testing cases. After all, special needs balancing accounts for whether consent reduces an individual’s legitimate expectation of privacy. Tellingly, the drug-testing programs in Skinner, Von Raab, Vernonia, Chandler, and Earls all required consent, but the Supreme Court each time applied the same special needs reasonableness analysis: “the Supreme Court has never held that such drug testing regimes were constitutionally reasonable because of consent.” Lebron I, 710 F.3d at 1215. Allowing a government program that plainly fails the special needs balancing test to move forward solely on the basis of extracted consent would effect an end-run around the Supreme Court’s well-established approach to suspicionless drug-testing cases.9 Consent to such a search is surely relevant, but it
9 In a footnote in its red brief, and again at oral argument, the State cited Ferguson v. City of Charleston, 532 U.S. 67 (2001), for the proposition that consent is an independent inquiry from the special needs analysis. In that case, a public hospital adopted a policy to drug test urine
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should be considered “through the prism of . . . special-needs balancing.”
AFSCME, 717 F.3d at 875.
Our conclusion is consistent with the decisions of our sister circuit courts
of appeal, which “have also applied the special-needs balancing test, rather than
treating consent as the sole determinant of a policy’s constitutionality, in cases
where the government attempted to compel consent to drug testing as a condition
for obtaining some privilege.” AFSCME, 717 F.3d at 876 (citing Joy v. Penn-
Harris-Madison Sch. Corp., 212 F.3d 1052, 1055, 1067 (7th Cir. 2000)); see also,
e.g., Miller v. Wilkes, 172 F.3d 574, 576, 577-82 (8th Cir. 1999) (upholding a
school drug testing program after a full special needs analysis and not treating the
samples from maternity patients and relay the results to law enforcement. Id. at 70-73. The Supreme Court held that the program was not justified under the special needs doctrine because “the immediate objective of the searches was to generate evidence for law enforcement purposes.” Id. at 83. However, the Court remanded for the lower court to determine whether “the searches were conducted with[] the informed consent of the patients.” Id. at 76. The State argues that such a remand would have been unnecessary if consent were not a dispositive factor independent of the special needs analysis. We are unpersuaded. First, as Justice Kennedy noted in his Ferguson concurrence, the lower court’s subsequent finding on consent could have been relevant as a factor that “[bore] upon the reasonableness of the whole special needs program,” rather than as a separate and dispositive inquiry. Id. at 91 (Kennedy, J., concurring in the judgment). Moreover, the circumstances of this case are quite different. Ferguson, like most Fourth Amendment cases, involved government searches carried out for law enforcement purposes. A long line of Supreme Court caselaw establishes that the constitutional infirmities of such searches can be cured by an individual’s consent. See, e.g., Fernandez v. California, 134 S. Ct. 1126, 1132 (2014); Schneckloth, 412 U.S. at 219; Davis v. United States, 328 U.S. 582, 59394 (1946). By contrast, in this case, as in the Supreme Court’s more specific line of special needs cases, suspicionless drug testing is used not for law enforcement but “to disqualify [an applicant] from eligibility for a particular benefit.” Ferguson, 532 U.S. at 78. As noted above, the Supreme Court’s approach to these cases has made clear that while consent is an important component of the special needs analysis, it is not a standalone trump card.
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existence of consent forms as dispositive), vacated as moot, 172 F.3d at 582.
“Simply put, we have no reason to conclude that the constitutional validity of a
mandated drug testing regime is satisfied by the fact that a state requires the
affected population to ‘consent’ to the testing in order to gain access or retain a
desired benefit.” Lebron I, 710 F.3d at 1215.10
In the final analysis, the warrantless, suspicionless urinalysis drug testing of
every Florida TANF applicant as a mandatory requirement for receiving
Temporary Cash Assistance offends the Fourth Amendment. On this record, the
State has not demonstrated a substantial special need to carry out the suspicionless
10 Because, as we see it, the consent inquiry is included within the special needs analysis here, the State’s reliance on unconstitutional conditions cases that arose in different contexts seems misplaced. In Rust v. Sullivan, 500 U.S. 173 (1991), the Supreme Court upheld regulations prohibiting recipients of federal family planning funds from engaging in abortion-related activities. But Rust distinguished other unconstitutional conditions cases by holding that the government abortion restrictions did not deny anyone a benefit, id. at 196; in this case, of course, Lebron was denied TANF cash benefits when he exercised his constitutional right. Lebron I, 710 F.3d at 1220 (Jordan, J., concurring). In Wyman v. James, 400 U.S. 309 (1971), the Supreme Court held that state welfare workers could make home visits a mandatory condition of receiving Aid to Families with Dependent Children benefits. As we explained in Lebron I, though, the Supreme Court ruled that the visit did not amount to a search, and thus “never reached the question of whether, and under what conditions, a mandatory ‘consent’ could render an actual Fourth Amendment search reasonable.” 710 F.3d at 1216; see id. at 1216 n.10 (“Wyman is further distinguishable as it was decided outside the context of drug testing and the Supreme Court has well-established precedent that governs the reasonableness of drug testing in the event a court is called upon to balance the competing government and individual privacy interests.”). By contrast, there is no question that submitting a urine sample is a search. See Skinner, 489 U.S. at 617. Moreover, the nature of the intrusion involved in this case is of a different order. The State here goes beyond a home visit; as the district court noted at the preliminary injunction stage, the drug testing involved here “necessarily entails intrusion into a highly personal and private bodily function, and the subsequent urinalysis . . . can reveal a host of private medical facts about the individual.” Lebron, 820 F. Supp. 2d at 1283. Finally, Wyman was decided over a decade before Skinner set forth the special needs doctrine for Fourth Amendment intrusions, so the Wyman Court had no opportunity to engage in the calculus we make today.
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search -- we see no concrete danger, only generalized public interests. And the State cannot use consent of the kind exacted here -- where it is made a condition of receiving government benefits -- to wholly replace the special needs balancing analysis. We respect the State’s overarching and laudable desire to promote work, protect families, and conserve resources. But, above all else, we must enforce the Constitution and the limits it places on government. If we are to give meaning to the Fourth Amendment’s prohibition on blanket government searches, we must -and we do -- hold that § 414.0652 crosses the constitutional line.
AFFIRMED.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

John Ley Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
December 03, 2014

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 14-10322-EE Case Style: Luis Lebron v. Sec. FL Dept. Children District Court Docket No: 6:11-cv-01473-MSS-DAB

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, costs taxed against appellant.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Lois Tunstall, EE at (404) 335-6224.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Jeff R. Patch Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 Case: 11-15258 Date Filed: 02/26/2013 Page: 1 of 38
[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 11-15258 ________________________
D.C. Docket No. 6:11-cv-01473-MSS-DAB

LUIS W. LEBRON, Individually and as Class Representative,

versus

Plaintiff–Appellee,

SECRETARY, FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES,

Defendant–Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________ (February 26, 2013)
Before BARKETT and JORDAN, Circuit Judges, and HALL,* District Judge.

BARKETT, Circuit Judge:

* Honorable James Randal Hall, United States District Judge for the Southern District of Georgia, sitting by designation.

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The Secretary of the Florida Department of Children and Families (“State”) appeals from the district court’s order enjoining the State of Florida from requiring Luis W. Lebron to submit to a suspicionless drug test pursuant to Section 414.0652 of the Florida Statutes, as a condition for receipt of government-provided monetary assistance for which he was otherwise qualified.
Lebron is an honorably discharged veteran of the United States Navy, college student, single unmarried father and sole caretaker of his young child. Lebron resides with and also cares for his disabled mother, who subsists on Social Security Disability benefits. In July 2011, Lebron applied for financial assistance benefits for himself and his son through Florida’s Temporary Assistance for Needy Families program (“TANF”), which, if he were eligible, would have provided him with a maximum of $241 per month to assist in the support of himself and his child.
TANF is a block grant program in which the federal government provides states with funds to assist needy families with short term financial assistance and with finding employment. The State, through the Department of Children and Families (“DCF”), has been administering the TANF program since its creation as part of the Personal Responsibility and Work Opportunity Reconciliation Act in 1996. Lebron met all of the program’s eligibility requirements, but DCF ultimately denied his application because Lebron refused to submit to Florida’s
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newly-enacted, mandatory drug testing, which is a final condition of eligibility for TANF benefits in Florida.
Florida’s mandatory drug-testing requirement for all TANF applicants was enacted in May 2011. See Fla. Stat. § 414.0652 (2011). Under the statute, when an individual applies, he is notified that he will be required to submit to and pay for drug testing as a condition of receiving TANF benefits. Id. § 414.0652(2)(a). If the applicant submits to the drug testing and tests negative, the cost of the test will be reimbursed to the applicant through a one-time increase in his TANF benefits. Id. If the applicant tests positive for controlled substances, he is ineligible to receive TANF benefits for one year, id. § 414.0652(1)(b), but can reapply in six months if he completes a substance abuse treatment program and passes another drug test, both at his own expense, id. § 414.0652(1)(j). Although an adult applicant who fails the drug test is ineligible for TANF benefits, the applicant’s dependent child may still receive TANF benefits so long as the adult designates an appropriate protective payee to receive the child’s benefits. Id. § 414.0652(3). However, the individual who wishes to serve as the protective payee must also submit to and pass mandatory drug testing to receive benefits for the child, even though he is not requesting any TANF benefits for himself. Id. § 414.0652(3)(c).
In addition to the mandatory drug test, applicants are required to sign a release acknowledging their consent to be tested. Id. § 414.0652(2)(e). At the
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time Lebron applied for TANF benefits, he was notified of Florida’s mandatory drug testing requirement and that he was required to sign the release before DCF would allow him to proceed with the application process. Lebron signed the release, completed the application process and was found eligible for TANF benefits. However, he did not submit to the drug test, but instead filed this lawsuit seeking to enjoin the enforcement of Florida’s mandatory suspicionless drug testing as a violation of his and all other TANF applicants’ Fourth Amendment right to be free from unreasonable searches and seizures. The district court granted a preliminary injunction against the enforcement of the drug testing statute against Lebron and the State agreed to discontinue its drug testing regime as to all TANF applicants until this litigation is fully resolved.
I. Standard of Review Although we review the district court’s grant of a preliminary injunction for an abuse of discretion, underlying questions of law are reviewed de novo, and the district court’s factual determinations cannot be disturbed unless clearly erroneous, see United States v. Alabama, 691 F.3d 1269, 1281 (11th Cir. 2012). To grant a preliminary injunction, the district court must determine that the moving party has established: “(1) a substantial likelihood of success on the merits; (2) that irreparable injury will be suffered unless the injunction is issued; (3) the threatened injury to the moving party outweighs whatever damage the proposed injunction
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might cause the non-moving party; and (4) if issued, the injunction would not be adverse to the public interest.” Keeton v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir. 2011). Here, the State challenges only the district court’s conclusion that Lebron has shown a “substantial likelihood of success on the merits” of his claim that Florida’s mandatory suspicionless drug testing of TANF applicants violates his Fourth Amendment right against unreasonable searches. Accordingly, in reviewing the district court’s grant of the preliminary injunction, we do not resolve the merits of the constitutional claim, but instead address whether the district court abused its discretion in concluding that Lebron is substantially likely to succeed in establishing that Florida’s drug testing regime for TANF applicants violates his Fourth Amendment rights.
II. Discussion The Fourth Amendment protects the rights of individuals “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. It is undisputed and well-established that government-mandated drug testing is a “search” within the meaning of the Fourth Amendment. See e.g., Bd. of Educ. v. Earls, 536 U.S. 822, 828 (2002); Chandler v. Miller, 520 U.S. 305, 313 (1997); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995); Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 665 (1989); Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614–15 (1989). Thus,
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the question before us is whether Florida’s mandatory, suspicionless drug-testing of all TANF applicants is a constitutionally reasonable search under the Fourth Amendment. See Skinner, 489 U.S. at 618–19 (“To hold that the Fourth Amendment is applicable to . . . drug and alcohol testing . . . is only to begin the inquiry into the standards governing such intrusions.”).
Ordinarily, to be reasonable, a search must be based on individualized suspicion of wrongdoing. See e.g., Chandler, 520 U.S. at 308 (“[The Fourth Amendment’s] restraint on government conduct generally bars officials from undertaking a search or seizure absent individualized suspicion.”). In most cases, this standard is met only when a search “is accomplished pursuant to a judicial warrant issued upon probable cause.” Skinner, 489 U.S. at 619.
However, the Supreme Court has upheld as reasonable searches without a showing of individualized suspicion in certain very limited and exceptional circumstances. See New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring in judgment) (explaining that a court may substitute its own reasonableness balancing for that of the Fourth Amendment’s warrant and probable cause requirement only in those “exceptional circumstances” where special needs have been established). But to establish these limited and exceptional circumstances that justify the suspension of Fourth Amendment protections, the Supreme Court has required the government to make a threshold
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showing that there are “special needs, beyond the normal need for law
enforcement, [which] make the warrant and probable-cause requirement
impracticable.” Skinner, 489 U.S. at 619 (internal quotation omitted).1 Not only
must the government identify the special needs that make the warrant and
probable-cause requirement impracticable but it must establish that those special
needs are “substantial.” See Chandler, 520 U.S at 318 (“Our precedents establish
that the proffered special need for drug testing must be substantial.”). Only if the
government is able to make a showing of substantial special needs will the court
thereafter “undertake a context-specific inquiry, examining closely the competing
private and public interests advanced by the parties,” to determine the
reasonableness of the search. Id. at 314; see also T.L.O., 469 U.S. at 351
1 The origins of the Court’s “special needs” test has been summed up as follows:
The term “special needs” first appeared in Justice Blackmun’s opinion concurring in the judgment in New Jersey v. T.L.O., 469 U.S. 325, 351 (1985). In his concurrence, Justice Blackmun agreed with the Court that there are limited exceptions to the probable-cause requirement, in which reasonableness is determined by “a careful balancing of governmental and private interests,” but concluded that such a test should only be applied “in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable. . . .” This Court subsequently adopted the “special needs” terminology in O’Connor v. Ortega, 480 U.S. 709, 720 (1987) (plurality opinion), and Griffin v. Wisconsin, 483 U.S. 868, 873 (1987), concluding that, in limited circumstances, a search unsupported by either warrant or probable cause can be constitutional when “special needs” other than the normal need for law enforcement provide sufficient justification.
Ferguson v. City of Charleston, 532 U.S. 67, 76 n.7 (2001). 7

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(Blackmun, J., concurring in judgment) (explaining that the reasonableness balancing test should be applied only if special needs have been established).
In the specific context of government-mandated drug testing programs, the Supreme Court has exempted such programs from the Fourth Amendment’s warrant and probable cause requirement only where such testing “fit[s] within the closely guarded category of constitutionally permissible suspicionless searches.” Chandler, 520 U.S. at 309. To fall within this “closely guarded category,” the Court has made clear that its “precedents establish that the proffered special need for drug testing must be substantial.” Id. at 318. The Court has recognized two concerns that present such “exceptional circumstances,” which are sufficiently “substantial” to qualify as special needs meriting an exemption to the Fourth Amendment’s warrant and probable cause requirement: the specific risk to public safety by employees engaged in inherently dangerous jobs and the protection of children entrusted to the public school system’s care and tutelage. In contrast, this “closely guarded category” does not include a policy requiring candidates for public office to submit to drug testing because the Court concluded that the state’s asserted need to “signify that candidates, if elected, will be fit to serve their constituents free from the influence of illegal drugs” was merely “symbolic” and
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not substantially special to warrant an exemption from the Fourth Amendment.2 Id.
at 321–22.
With reference to ensuring public safety in well-defined circumstances, the
Court, in Skinner and Von Raab, recognized a special need where “[railroad]
employees are engaged in safety-sensitive tasks,” Skinner, 489 U.S. at 620, and
where the “sensitive positions” of certain United States Customs employees
present “extraordinary safety and national security hazards,” Von Raab, 489 U.S.
at 666, 674.
In Skinner, the Court permitted mandatory drug testing of railroad
employees involved in train accidents under a program that had been implemented
in response to “evidence indicating that on-the-job intoxication was a significant
problem in the railroad industry” and that alcohol or drug use was a factor in
several accidents that resulted in numerous fatalities, other injuries and property
damage. 489 U.S. at 607. Given the “safety-sensitive tasks” that the railroad
employees engaged in, the Court determined that the government presented a
2 We also note that the Supreme Court in Ferguson struck down as unconstitutional a state hospital policy of drug testing pregnant women who medical staff considered to be potential cocaine users. 532 U.S. at 86. The Court, however, distinguished the testing regime in Ferguson from its prior drug testing cases because the program was established in conjunction with law enforcement officials so that test results could be turned over for criminal prosecution. 532 U.S. at 84 (“Given the primary purpose of the Charleston program, which was to use the threat of arrest and prosecution in order to force women into treatment, and given the extensive involvement of law enforcement officials at every stage of the policy, this case simply does not fit within the closely guarded category of special needs.”). The Court also noted that the privacy interests were much greater in Ferguson than its other drug testing cases. Id. at 78.
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special need of “ensuring the safety of the traveling public and of the employees themselves” which justified a policy prohibiting the use of alcohol or drugs while on duty. Id. at 620–21. Having found that the government established “special needs,” the Court went on to weigh the government’s need to “monitor compliance with the[ ] restrictions” of on-the-job drug and alcohol use against the privacy interests of the railroad employees. Id. at 621. The Court explained that the government had a compelling interest in drug testing because “[e]mployees subject to the tests discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences. . . . [They] can cause great human loss before any signs of impairment become noticeable to supervisors or others.” Id. at 628. On the other hand, railroad employees’ “expectations of privacy . . . are diminished by reason of their participation in an industry that is regulated pervasively to ensure safety, a goal dependent, in substantial part, on the health and fitness of covered employees.” Id. at 627.
In Von Raab, the Court likewise sustained a United States Customs Service policy that made drug tests a condition of working in positions directly involving drug interdiction or requiring the employee to carry a firearm. 489 U.S. at 660–61. The Court pointed out that the Customs Service, in performing its “almost unique mission,” id. at 674, was our “first line of defense against . . . the veritable national crisis in law enforcement caused by smuggling of illicit narcotics,” id. at 668, and
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that “[m]any of the Service’s employees are often exposed to this criminal element and to the controlled substances it seeks to smuggle into the country,” id. at 669.3 As a result, our “national interest in self-protection could be irreparably damaged” if Customs’ employees’ performance on the job was impaired by drug use. Id. at 670. The Court also noted that “Customs employees who may use deadly force plainly ‘discharge duties fraught with such risks of injury to others that even a momentary lapse of attention can have disastrous consequences.’” Id. at 670 (quoting Skinner, 489 U.S. at 628). Thus, given the substantial danger of physical harm, threat to national security, and numerous temptations inherent in the affected positions involved in the interdiction of drugs being smuggled into the country, the Court agreed that the government demonstrated a special need in ensuring against the creation of such risks within the Customs Service. Id. at 670–71.
Having found a substantial special need, the Court, in the subsequent weighing of the competing government and individual interests, determined that affected Customs’ employees, like the railroad workers in Skinner, have a diminished expectation of privacy with respect to the intrusions occasioned by the tests administered. “Unlike most private citizens or government employees in general, employees involved in drug interdiction [and those who carry firearms]
3 As an example of the sort of illicit temptation potentially faced by Customs’ employees, the Court noted that “Customs officers have been the targets of bribery by drug smugglers on numerous occasions, and several have been removed from the Service for accepting bribes.” Von Raab, 489 U.S. at 669.
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reasonably should expect effective inquiry into their fitness and probity. . . . [T]hese employees cannot reasonably expect to keep from the Service personal information that bears directly on their fitness.” Id. at 672.
Other than the certain well-defined public safety concerns, the “closely guarded category” includes suspicionless drug testing only in one other context— the public school setting. In Vernonia and Earls, the Court upheld as reasonable under the Fourth Amendment school district policies that provided for random drug testing of public school children who participated in the school systems’ athletics programs and non-athletic extracurricular activities, respectively. The Court noted that “‘special needs’ inhere in the public school context,” Earls, 536 U.S. at 829, given the need for “swift and informal disciplinary procedures” and “the substantial need of teachers and administrators for freedom to maintain order in the schools.” Vernonia, 515 U.S. at 653 (quoting T.L.O., 469 U.S. at 340–41). The Court also explained that schools have an important concern with deterring drug use by schoolchildren “for whom it has undertaken a special responsibility of care and direction.” Vernonia, 515 U.S. at 662; Earls, 536 U.S. at 834.
In Vernonia, in permitting the drug testing of student athletes, the Court emphasized the findings that “athletes were the leaders of the drug culture” in this school district, which was fueling a “rebellion” that led to an increase in disciplinary problems that “had reached epidemic proportions.” 515 U.S. at 649,
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663. The deleterious effects of drug use were of particular concern in the specific context of student athletics, which the Court noted “increases the risk of sportsrelated injury” and affects “motivation, memory, judgment, reaction, coordination, and performance.” Id. at 649. Likewise in Earls, the Court reiterated “the importance of the governmental concern in preventing drug use by schoolchildren” and determined that the “health and safety risks identified in Vernonia” applied with “equal force” in the context of school children participating in extracurricular activities. 536 U.S. at 834.4
In both Vernonia and Earls, the government’s special need in the unique context of the public school setting was found to outweigh the individual privacy rights of the students—rights which the Court concluded are “limited in a public school environment where the State is responsible for maintaining discipline, health, and safety.” Earls, 536 U.S. at 830; see also Vernonia, 515 U.S. at 656 (“Fourth Amendment rights . . . are different in public schools than elsewhere[.]”). Although the Court in both Vernonia and Earls had before it evidence of a genuine drug problem among the covered students, the Court cautioned that “[t]he most significant element . . . is . . . that the Policy was undertaken in furtherance of the
4 We note that in both Vernonia and Earls, the Court acknowledged that the school districts had presented specific evidence of drug use by the relevant population of students and that the Court would not “second-guess the finding of the district court that . . . the [School District] was faced with a ‘drug problem’ when it adopted the policy.” Earls, 536 U.S. at 834.
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government’s responsibilities, under a public school system, as guardian and tutor of children entrusted to its care.” Vernonia, 515 U.S. at 665.
Thus in the context of government mandated drug testing, when the Court has permitted the suspension of the Fourth Amendment protections requiring individualized suspicion it has done so only in the “closely guarded categor[ies]” enumerated above where the asserted special need addresses a substantial concern for public safety or where the state is fulfilling its well-recognized role as the guardian and tutor of public school children. That is not to say that there cannot be other governmental needs that are sufficiently substantial to qualify as a special need for Fourth Amendment purposes. Moreover, in subsequently weighing the competing government and individual interests, the Court has noted that the affected individuals have a diminished expectation of privacy given the nature of their employment or status as a public school student.
Conversely, in Chandler v. Miller, 520 U.S. 305 (1997), the Supreme Court rejected the state of Georgia’s argument that it had a special need that supported the mandatory drug testing of all candidates for state public office. Georgia argued that unlawful drug use by elected officials “draws into question an official’s judgment and integrity; jeopardizes the discharge of public functions[;] . . . and undermines public confidence and trust in elected officials.” Chandler, 520 U.S. at 318. After distinguishing Skinner, Von Raab and Vernonia, the Court reiterated
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that “[o]ur precedents establish that the proffered special need for drug testing must be substantial—important enough to override the individual’s acknowledged privacy interest, sufficiently vital to suppress the Fourth Amendment’s normal requirement of individualized suspicion.” Id. In concluding that Georgia’s purported special needs were not substantial, the Court noted that Georgia failed to put forth “any indication of a concrete danger demanding departure from the Fourth Amendment’s main rule.” Id. at 319. (“Nothing . . . hints that the hazards [the State] broadly describe are real and not simply hypothetical for Georgia’s polity.”). Not only did Georgia fail to put forth “evidence of a drug problem among the State’s elected officials,” but the Court also noted that those officials were not involved in high-risk or safety-sensitive tasks nor were they part of any drug interdiction effort. Id. 321–22. Thus, all that was left was an image that the State wished to project that “candidates, if elected, will be fit to serve their constituents,” at least to the extent of being “free from the influence of illegal drugs.” Id. at 321.5 However, the Court refused to credit this interest as a substantial special need, but instead concluded the need was merely “symbolic” and would not justify suspicionless drug testing. Id. at 322.
5 The Court also pointed out that Georgia failed to show “why ordinary law enforcement methods would not suffice to apprehend such addicted individuals, should they appear in the limelight of a public stage.” Id. at 320.
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For reasons similar to those expressed by the Court in Chandler, we cannot say that the district court abused its discretion in determining that the State failed to establish a substantial special need for mandatory drug testing of TANF applicants. Here, the State argues that there is a “special need” to test TANF applicants because TANF funds should not be used for drugs as drug use undermines the program’s goals of moving applicants into employment and promoting child welfare and family stability. But this argument, which assumes drug use, begs the question. The question is not whether drug use is detrimental to the goals of the TANF program, which it might be. Instead, the only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF recipients when there is no immediate or direct threat to public safety, when those being searched are not directly involved in the frontlines of drug interdiction, when there is no public school setting where the government has a responsibility for the care and tutelage of its young students, or when there are no dire consequences or grave risk of imminent physical harm as a result of waiting to obtain a warrant if a TANF recipient, or anyone else for that matter, is suspected of violating the law. We conclude that, on this record, the answer to that question of whether there is a substantial special need for mandatory suspicionless drug testing is “no.”
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As the district court found, the State failed to offer any factual support or to
present any empirical evidence of a “concrete danger” of illegal drug use within
Florida’s TANF population. See id. at 319. The evidence in this record does not
suggest that the population of TANF recipients engages in illegal drug use or that
they misappropriate government funds for drugs at the expense of their own and
their children’s basic subsistence. The State has presented no evidence that simply
because an applicant for TANF benefits is having financial problems, he is also
drug addicted or prone to fraudulent and neglectful behavior.6
6 In concluding that the State failed to present evidence in support of its alleged special needs, the district court also noted that the State failed to address the only competent evidence in the record about drug use among TANF recipients. That evidence derived from a study, known as the Demonstration Project, which had been developed and implemented by DCF in 1998. DCF conducted the study after the State passed legislation requiring the Demonstration Project to test empirically whether individuals who applied for TANF benefits were likely to abuse drugs and whether such abuse affected employment opportunities. The legislation permitted drug testing only of those individuals for whom DCF had reasonable cause to believe were engaged in illegal drug use. Over an eighteen-month period, the researchers on the Demonstration Project used a written test to screen over 8,700 TANF applicants for reasonable cause to believe they were substance abusers. Of those screened, 1447 applicants were identified as potential substance abusers and required to undergo urinalysis. Only 5.1% (353 individuals) of the total screened population tested positive. The researchers noted that this rate of drug use was lower than had been reported in other national studies of welfare recipients.
The Demonstration Project found no discernible difference in the employment rate and level of government assistance provided to recipients who were drug users and those who were non-users. The researchers concluded that: (1) because it is difficult to determine the extent of drug use among welfare beneficiaries, such estimates should not be used for sanctioning purposes and (2) drug testing may be of little benefit given the finding of inconsequential differences between drug users and non-users on employability and reliance on government benefits.
The district court found that the results of the Demonstration Project undercut the State’s rationale for its asserted need for drug testing. Specifically, the district court noted that the rate of drug use reported in the Demonstration Project of 5.1% is lower than Florida’s general population, currently estimated to be around 8.13%, thereby suggesting that TANF applicants are no more likely than any other recipient of government benefits to misuse funds for drug use or expose their children to drugs. The district court also noted that study’s conclusion regarding
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While “[a] demonstrated problem of drug abuse, [is] not in all cases
necessary to the validity of a testing regime,” such evidence could “clarify” and
“substantiate” the dangers presented by such drug use and whether those dangers
were pertinent to the government’s asserted special need for drug testing,
Chandler, 520 U.S. at 319. Thus, unlike Skinner, Vernonia, and Earls, in which
the government presented evidence of drug use within the affected populations,
here, the State presented no empirical evidence to bolster its special needs
argument that suspicionless drug testing of TANF applicants is in any way
warranted. See id. (noting that evidence of drug use in Skinner and Vernonia
“bolstered the Government’s and school officials’ arguments that drug-testing
programs were warranted and appropriate”).7 As the Court noted in Chandler,
employability also contradicts the State’s rationale that drug users are less likely to find and to keep employment.
Although we find no error in the district court’s finding that the results of the Demonstration Project hinders rather than supports the validity of the State’s asserted special needs, we do not mean to suggest that there is any affirmative burden on the part of the affected population to bring forth evidence refuting the legitimacy of the State’s purported special needs for drug testing. To the contrary, the Supreme Court has unequivocally stated that it is the state which must show a substantial special need to justify its drug testing. See e.g., Chandler, 520 U.S. at 318 (“Georgia has failed to show, in justification of [its drug testing statute], a special need of that kind.”).
Moreover, the district court did not abuse its discretion in finding that the other evidence submitted by the State failed to support the finding of a special need for drug testing. The three affidavits from DCF employees only provided a factual description of the TANF program and how the drug testing would be implemented. None of the affidavits spoke to the State’s need for suspicionless drug testing. Likewise, the district court did not err in rejecting, as irrelevant or non-persuasive, the reports concerning drug use in the welfare populations.
7 In pointing out that there is no evidence of a demonstrated problem of drug use within Florida’s TANF population to support the State’s special needs argument, we in no way are
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“[n]othing . . . hints that the hazards [the State] broadly describe are real and not
simply hypothetical.” Id. at 319.
There is nothing so special or immediate about the government’s interest in
ensuring that TANF recipients are drug free so as to warrant suspension of the
Fourth Amendment. The only known and shared characteristic of the individuals
who would be subjected to Florida’s mandatory drug testing program is that they
are financially needy families with children. Yet, there is nothing inherent to the
condition of being impoverished that supports the conclusion that there is a
“concrete danger” that impoverished individuals are prone to drug use or that
should drug use occur, that the lives of TANF recipients are “fraught with such
risks of injury to others that even a momentary lapse of attention can have
disastrous consequences.” Skinner, 489 U.S. at 628; see also Von Raab, 489 U.S.
at 670.8 Thus, the State’s argument that it has a special need to ensure that the
suggesting that evidence of drug use within the TANF population would, in and of itself, suffice to establish a substantial special need for mandatory drug testing. Nor do we read any of the Supreme Court’s drug testing cases to say that empirical evidence of drug use is sufficient to establish a special need. Instead, all that the Court has said of actual evidence of drug use is that it is neither necessary nor sufficient to establish the type of substantial special needs that permit a drug testing regime to fall within the closely guarded category of permissible suspicionless searches.
8 We also note that TANF recipients, much like the elected officials in Chandler who often “appear in the limelight of a public stage,” 520 U.S. at 320, are subject to regular oversight and monitoring by Florida’s welfare officials as part of verifying their ongoing eligibility for the TANF program. They are certainly far more visible to Florida’s welfare officials than nonTANF recipient parents struggling with drug addiction. Accordingly, just as the Court in Chandler concluded that there was no reason why ordinary law enforcement would not suffice to deal with drug addicted elected officials, id., we see no reason why here, Florida welfare officials
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goals of the TANF program are not jeopardized by the effects of drug use seems to rest on the presumption of unlawful drug use. But the Supreme Court has required that a state must present adequate factual support that there exists a “concrete danger,” Chandler, 520 U.S. at 319, not simply conjecture that there is a substantial “special need” that cannot be met by ordinary law enforcement methods warranting the drastic action of abrogating an individual’s constitutional right to be free from unreasonable government searches.
Moreover none of the State’s asserted concerns will be ameliorated by drug testing. While we recognize that Florida has a significant interest in promoting child welfare, the State has presented no evidence that the general welfare of the children in the TANF program is at greater risk absent its drug testing. Nor has the State shown that Florida’s children will be better protected because of mandatory drug testing of TANF applicants. As the district court noted, even if a parent tests positive for drugs and is precluded from receiving TANF funds, the TANF program has no impact on the familial and custodial relationships of its would-be participants. Again, there is no evidence that there is greater drug use and child abuse within the population of economically disadvantaged families who participate in the TANF program. However, even if child neglect or abuse, for
would not be able to address drug addiction through normal law enforcement methods when, and if, it manifests itself in a given TANF household.
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whatever reasons, impacts the lives of families in the TANF program, Florida has a
separate, well-established and comprehensive statutory, administrative and judicial
scheme codified in Chapter 39 of the Florida Statutes, which governs Florida’s obligation to protect children from child abuse, abandonment and neglect.9 See
Fla. Stat. §§ 39.001–39.908.
In short, we cannot say that the district court erred in determining that the
State failed to meet its burden of showing a substantial special need permitting the
suspension of the Fourth Amendment’s protections. See e.g., Ferguson, 532 U.S.
at 81 (“In Chandler, however, we did not simply accept the State’s invocation of a
‘special need.’ Instead, we carried out a ‘close review’ of the scheme at issue
before concluding that the need in question was not ‘special,’ as that term has been
defined in our cases.”). The simple fact of seeking public assistance does not
deprive a TANF applicant of the same constitutional protection from unreasonable
searches that all other citizens enjoy. Because we agree with the district court that
the State failed to meet its burden in establishing a special need for its mandatory,
suspicionless drug testing of TANF applicants, that ends our inquiry into the
9 The State argues that Earls and Vernonia support its position that the government has a substantial concern over child welfare that justifies drug testing of TANF recipients. Although Earls and Vernonia found the existence of a special need that justified mandatory drug testing of school children, it did so in the unique environment of the public school setting, where the State itself has a parens patriae obligation toward the children under its direct supervision and control. Earls, 536 U.S. at 834; Vernonia, 515 U.S. at 662. State officials are not in the same position vis a vis either the adult or child participants in the TANF program and thus, the child welfarerelated special need identified in Earls and Vernonia is inapplicable here.
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testing regime’s validity for Fourth Amendment purposes, and thus, we need not weigh any competing individual and governmental interests. See T.L.O., 469 U.S. at 351 (Blackmun, J., concurring in judgment) (explaining that the balancing of government interests against the individual privacy interests takes place only if the government establishes a special need for drug testing).
We turn then to the State’s alternative argument that even if we find no substantial special need supporting Florida’s mandatory drug testing of TANF recipients, the drug testing program is still constitutionally valid because it is based on consent. As noted, under Florida’s program, an applicant is required to sign an acknowledgment that he or she consents to drug testing. Accordingly, the State argues that because the drug test is administered only to those persons who have consented to the test and because a consented-to search is deemed reasonable, Florida’s mandatory drug testing program does not run afoul of the Fourth Amendment.
We cannot say that the district court abused its discretion in concluding that the “State’s exaction of consent” failed to render the otherwise unconstitutional drug testing valid for Fourth Amendment purposes. We disagree with the State that the mandatory “consent,” which Florida’s drug-testing statute makes a condition to the receipt of benefits, is of any constitutional significance. Although a “search conducted pursuant to a valid consent is constitutionally permissible,”
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see Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973), a valid consent means one which is “in fact, freely and voluntarily given,” see Bumper v. North Carolina, 391 U.S. 543, 548 (1968). The State’s assertion that the “consent” that is provided by TANF applicants renders the drug testing reasonable for Fourth Amendment purposes is belied by Supreme Court precedent, which has invalidated searches premised on consent where it has been shown that consent “was granted in submission to authority rather than as an understanding and intentional waiver of a constitutional right.” See Johnson v. United States, 333 U.S. 10, 13 (1948) (holding as invalid a search of defendant’s home which “was demanded under color of office” even though the government officials did not possess a search warrant); see also Bumper, 391 U.S. at 548–49 (“[The government’s] burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.”); Amos v. United States, 255 U.S. 313, 317 (1921) (“The contention that the constitutional rights of defendant were waived when his wife admitted to his home the government officers, who came, without warrant, demanding admission to make search of it under government authority, cannot be entertained. . . . [I]t is perfectly clear that under the implied coercion here presented, no such waiver was intended or effected.”).
By informing TANF applicants that the drug test is one of many conditions to receiving this government-issued benefit and that the applicant’s refusal to give
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consent means that he is ineligible to receive TANF assistance, the State conveys a message that it has the unfettered lawful authority to require such drug testing— period. But it does not and can only do so upon a showing of individualized suspicion or a special need beyond the need for normal law enforcement, both of which are absent in Florida’s drug testing program. Accordingly, a TANF applicant’s “consent” to the testing by signing a form waiving his constitutional rights amounts to nothing more than “submission to authority rather than . . . an understanding and intentional waiver of a constitutional right.” Johnson, 333 U.S. at 13.
We note that even though each of the drug testing regimes in Skinner, Von Raab, Vernonia, Chandler, and Earls required the affected employees, students or political office candidates to “consent” the drug testing in order to maintain employment, participate in school activities or gain access to the ballot, the Supreme Court has never held that such drug testing regimes were constitutionally reasonable because of consent. Instead, every time that the Supreme Court has been asked to address the validity of a government mandated drug testing policy, it has applied the same special needs analysis and reasonableness balancing, whether upholding or rejecting those policies. Simply put, we have no reason to conclude that the constitutional validity of a mandated drug testing regime is satisfied by the
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fact that a state requires the affected population to “consent” to the testing in order to gain access or retain a desired benefit.
The State’s reliance on Wyman v. James, 400 U.S. 309 (1971) to support its contention that the mandatory consent here renders the drug testing reasonable for Fourth Amendment purposes is misplaced. Fundamentally, Wyman is inapplicable to whether Florida’s drug testing of TANF applicants is a constitutionally reasonable search. In Wyman, the Court addressed whether the State of New York could make home visits by state welfare workers a mandatory condition to the initial or ongoing receipt of Aid to Families with Dependent Children (“AFDC”) benefits, or whether the recipient could refuse entry to her home without risking eligibility for benefits. 400 U.S. at 310. The recipient argued, among other grounds, that the state welfare worker’s home visit was a search subject to the requirements of the Fourth Amendment. Id. at 313. Although the Court acknowledged the principle that “a search of private property without proper consent is unreasonable unless it has been authorized by a valid warrant,” it concluded that “[t]his natural and quite proper protective attitude, however, is not a factor in this case.” Id. at 317 (emphasis added). Instead, the Court went on to hold that the state welfare worker’s home visit was not a search, and thus the Fourth Amendment or any of its requirements or protections did not matter. “[W]e
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are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term.” Id.
In this case, however, the fact that government-mandated drug testing is a search has been well-settled and beyond any debate since the Court’s decision in Skinner. See Skinner, 489 U.S. at 617 (“Because it is clear that the collection and testing of urine intrudes upon expectations of privacy that society has long recognized as reasonable, . . . these intrusions must be deemed searches under the Fourth Amendment.”). This fundamental difference between the state welfare worker’s home visit (which is not a search) and the drug testing at issue here (which is a search) renders Wyman inapplicable to the constitutionally significant question of whether the mandated consent that is part of Florida’s drug testing regime makes the search reasonable. Thus, we cannot agree with the State’s argument that Wyman held that “consent” to an “administrative-search requirement” renders the “search constitutional,” as this contention simply ignores that the Court in Wyman concluded that there was no search. Therefore, because there was no search, the Court had no reason to decide whether the AFDC recipient’s “consent” would have rendered the home visit constitutionally reasonable for purposes of the Fourth Amendment.
Thus, when the Court in Wyman noted that the home visit was not forced or compelled, that the denial of permission to enter the home was not a criminal act,
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and that the withholding of consent resulted in no home visit and the cessation of
welfare benefits, it made these statements to explain why it reached its holding that
the welfare home visit is not a Fourth Amendment search. Wyman, 400 U.S. at
317–18. It simply never reached the question of whether, and under what
conditions, a mandatory “consent” could render an actual Fourth Amendment
search reasonable.10
Moreover, the mandated “consent” the State relies on here, which is not
freely and voluntarily given, runs afoul of the Supreme Court’s long-standing
admonition that the government “may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests.” Perry v. Sindermann, 408 U.S.
10 Although the Court held in Wyman that a welfare home visit is not a Fourth Amendment search, the Court went on to discuss why such a visit would nonetheless be reasonable, if the Court assumed that it was similar to a traditional search. See Wyman, 400 U.S. at 318–24. The State does not rely on this part of Wyman to support its position regarding “consent” and we find nothing in the Court’s reasonableness analysis that would support the conclusion that Florida’s requirement that TANF recipients “consent” to mandatory drug testing renders the subsequent search reasonable for the Fourth Amendment. Wyman is further distinguishable as it was decided outside the context of drug testing and the Supreme Court has well-established precedent that governs the reasonableness of drug testing in the event a court is called upon to balance the competing government and individual privacy interests. Moreover, because we have already concluded that the State failed to establish a “substantial special need” for mandatory suspicionless drug testing, we need not balance any government interest against individual privacy interests, and thus Wyman’s reasonableness analysis is irrelevant here.
The Court’s statement that the welfare recipient’s failure to grant consent to a home visit was entirely her choice and involved “nothing of constitutional magnitude,” does not support the State’s position here, that TANF recipients, like Lebron, who refuse to submit to drug testing have had no constitutional rights violated. Wyman, 400 U.S. at 324. That the welfare recipient’s choice to deny a home visit involved “nothing of constitutional magnitude” is because the Court held that the welfare home visit is not a search for purposes of the Fourth Amendment and thus the decision to permit or to deny such a home visit simply does not infringe upon any constitutional rights. Here, however, because a government mandated drug test is a search, the decision regarding submission to that search directly implicates an individual’s Fourth Amendment rights.
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593, 597 (1972). The Court reiterated in a subsequent case that “[u]nder the wellsettled doctrine of ‘unconstitutional conditions,’ the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to [the right].” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
The Supreme Court recognized this principle, as long as a century ago in Bailey v. Alabama 219 U.S. 219, 245 (1911), where it explained that if a State’s procedures, in their natural operation, transgress a substantive constitutional right, those procedures are unconstitutional. Although the Court in Bailey recognized that states generally possess the power to prescribe procedures affecting their own laws, the Court went on to hold that this state power is limited when federal constitutional rights are at stake. See 219 U.S. at 239 (“The power to create [state procedural rules] is not a means of escape from constitutional restrictions.”). Succinctly put, “[w]hat the state may not do directly it may not do indirectly.” Id. at 244. Later in Speiser v. Randall, 357 U.S. 513, 526, 528–29 (1958), the Court applied the principles of Bailey in holding that the state of California could not place the burden on taxpayers to attest that they did not advocate the overthrow of the government in order to receive the government benefit of a tax exemption without violating the taxpayers’ First Amendment and Fourteenth Amendment due process rights. See also Sherbert v. Verner, 374 U.S. 398, 404 (1963) (holding that
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a state could not force an individual to choose between “following the precepts of her religion and forfeiting [unemployment compensation] benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand” without unconstitutionally burdening the First Amendment right to free exercise of religion).
Here, because the state of Florida cannot drug test TANF applicants absent individualized suspicion or a showing of a governmental substantial special need that outweighs the applicant’s privacy rights, it cannot do so indirectly by conditioning the receipt of this government benefit on the applicant’s forced waiver of his Fourth Amendment right. Indeed, in Speiser, the Court did not say that the taxpayer could avoid an unconstitutional infringement on his First Amendment rights simply by choosing not to seek the tax exemption. Nor did the Court say in Speiser that those taxpayers who acquiesced and signed the attestation in order to receive the tax exemption had properly waived their First Amendment right against compelled speech thereby rendering the government’s procedures constitutionally acceptable. Instead in Bailey, Speiser and Perry, the Court was clear that where an individual’s federal constitutional rights are at stake, the state cannot accomplish indirectly that which it has been constitutionally prohibited from doing directly. Those same principles are equally applicable here. The State cannot mandate “consent” to drug testing, which essentially requires a TANF
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applicant to choose between exercising his Fourth Amendment right against unreasonable searches at the expense of life-sustaining financial assistance for his family or, on the other hand, abandoning his right against unreasonable government searches in order to access desperately needed financial assistance, without unconstitutionally burdening a TANF applicant’s Fourth Amendment right to be free from unreasonable searches. Accordingly, we cannot say that the district court abused its discretion in rejecting the State’s “consent” argument as a violation of the unconstitutional conditions doctrine. See e.g., Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 716 (1981) (explaining in an unemployment benefits case that “a person may not be compelled to choose between the exercise of a First Amendment right and participation in an otherwise available public program”); Bourgeois v. Peters, 387 F.3d 1303, 1324, 1325 (11th Cir. 2004) (“Our circuit has roundly condemned the use of unconstitutional conditions. . . . [T]he very purpose of the unconstitutional conditions doctrine is to prevent the government from subtly pressuring citizens, whether purposely or inadvertently, into surrendering their rights.”).
III. Conclusion
Because we conclude that the State has failed to establish a substantial special need to support its mandatory suspicionless drug testing of TANF recipients, the district court did not abuse its discretion in granting the preliminary
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injunction enjoining the State from enforcing § 414.0652, Fla. Stat. AFFIRMED.
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JORDAN, Circuit Judge, concurring. I concur in Judge Barkett’s opinion for the court, and write to emphasize
certain points about this case. 1. We are not making any definitive legal pronouncements about the
ultimate constitutionality of Fla. Stat. § 414.0652. We are reviewing the grant of a preliminary injunction on an undeveloped record, and therefore are considering only the district court’s determination that Mr. Lebron is likely to succeed on the merits of his Fourth Amendment claim. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975) (“In these circumstances, and in the light of existing case law, we cannot conclude that the district court erred by granting preliminary injunctive relief. This is the extent of our appellate inquiry, and we ‘intimate no view as to the ultimate merit of [respondent’s] contentions.’”) (citation omitted); Di Giorgio v. Causey, 488 F.2d 527, 528-29 (5th Cir. 1973) (“[O]n appeal from a preliminary injunction this Court does not concern itself with the merits of the controversy. . . . No attention is paid to the merits of the controversy beyond that necessary to determine the presence or absence of an abuse of discretion.”).
2. Because of the limited nature of our review, our look at the “substantial likelihood of success” prong is for abuse of discretion, and is not de novo. There is language in some of our cases indicating that we take a plenary look at legal issues in reviewing the grant or denial of preliminary injunctive relief, but the better view
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(and the one consistent with Supreme Court precedent) is that a deferential standard of review applies when we are dealing with the district court’s assessment of probability of success on a limited record. See, e.g., Ashcroft v. A.C.L.U., 542 U.S. 656, 666 (2004) (concluding that district court’s determination as to likelihood of success “was not an abuse of discretion”); LSSI Data Corp. v. Comcast Phone LLC, 696 F.3d 1114, 1120 (11th Cir. 2012) (“The first question before us is whether the district court abused its discretion in concluding that LSSI has shown a ‘substantial likelihood of success’ on the merits of its claim.”); Bellsouth Telecommunications, Inc. v. MCIMetro Access Transmission Services, LLC, 425 F.3d 964, 970 (11th Cir. 2005) (“The district court did not abuse its discretion in determining that Bellsouth had established a substantial likelihood of success.”); Ingram v. Ault, 50 F.3d 898, 900 (11th Cir. 1995) (reviewing district court’s “substantial likelihood of success” determination for abuse of discretion); Café 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir. 1993) (“Whether the district court’s determination of this point [substantial likelihood of success] is right or wrong, the record here indicates no abuse of discretion.”).
3. Insofar as burdens are concerned, this is not the typical preliminary injunction case. It is undisputed that a drug test is a search under the Fourth Amendment, and that the government generally has the burden of justifying a warrantless search. See, e.g., United States v. Bachner, 706 F.2d 1121, 1126 (11th
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Cir. 1983) (“If the movant establishes an expectation of privacy and that the search and seizure took place without a search warrant, then the burden shifts to the state to establish that an exception to the search warrant requirement was applicable in the subject case and that the search and seizure was, in fact, a reasonable one.”) (citing Coolidge v. New Hampshire, 403 U.S. 443, 455 (1961)). Thus, as the Supreme Court has explained, the government has the burden of establishing a “special need” for a warrantless and suspicionless drug testing requirement. See Chandler v. Miller, 520 U.S. 305, 318 (1997). See also United States v. Jeffers, 342 U.S. 48, 51 (1951) (“the burden is on those seeking the exemption [to the warrant requirement] to show the need for it”). This means that the state, and not Mr. Lebron, had the burden below with respect to the constitutionality of § 414.0652, for “the burdens at the preliminary injunction stage track the burdens at trial.” Gonzalez v. O Centro Beneficiente Uniao do Vegetal, 546 U.S. 418, 429 (2006). See also Ashcroft, 542 U.S. at 666 (preliminary injunction case: “As the government bears the burden of proof on the ultimate question of COPA’s constitutionality, [the plaintiffs challenging COPA] must be deemed likely to prevail unless the government has shown that [the plaintiffs’] proposed less restrictive alternatives are less effective than COPA.”).
4. I am not persuaded by the only other appellate decision addressing the constitutionality of a warrantless and suspicionless drug testing program for
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recipients of government aid—the Sixth Circuit’s now-vacated panel decision in Marchwinski v. Howard, 309 F.3d 330, 333-37 (6th Cir. 2002) (reversing preliminary injunction entered by district court and indicating that Michigan pilot program requiring warrantless and suspicionless drug testing of welfare applicants was likely constitutional), vacated on grant of rehearing en banc, 319 F.3d 258 (6th Cir. 2003), decision of district court affirmed by equally divided vote, 60 F. App’x 601 (6th Cir. 2003) (en banc). First, the Sixth Circuit panel—contrary to the teaching of cases like Ashcroft and Gonzalez—apparently placed the burden on the plaintiffs to demonstrate the unconstitutionality of the state’s warrantless and suspicionless drug testing program. See 309 F.3d at 336-37. Second, the Sixth Circuit panel relied too heavily on “special needs” cases arising in the school setting. See id. at 334-35. Those cases, it seems to me, are distinguishable because they involved two critical aspects not present here – the lessened expectation of privacy held by minor students, and the state’s custodial and tutelary role in education. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) (“Central, in our view, to the present case is the fact that the subjects of the Policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.”); Bd. of Education v. Earls, 536 U.S. 822, 828 (2002) (“As in Vernonia, the context of the public school environment serves as the backdrop for the analysis of the privacy interest at stake and the reasonableness of the drug
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testing policy in general.”). Third, the Sixth Circuit panel did not give enough weight to the Supreme Court’s decision in Chandler. See 309 F.3d at 334-35. As a result, the district court here did not abuse its discretion in refusing to follow the vacated panel decision in Marchwinski.
5. In my view the doctrine of unconstitutional conditions is somewhat incoherent, and some of the cases decided under it are difficult to reconcile. See generally Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1416 (1989) (“As applied . . . the doctrine of unconstitutional conditions is riven with inconsistencies”). Compare, e.g., Lyng v. Automobile Workers, 485 U.S. 360, 368 (1988) (denying food stamps to workers on strike does not infringe on First Amendment rights) with, e.g., Sherbert v. Varner, 374 U.S. 398, 404-05 (1963) (denying unemployment benefits to a Seventh Day Adventist who rejected suitable employment opportunities because she would not work on Saturdays violates the First Amendment). Nevertheless, the district court did not abuse its discretion in following, at least preliminarily, those decisions which teach that the government cannot condition the receipt of, or entitlement to, a benefit on the surrender of a constitutional right. See, e.g., Perry v. Sinderman, 408 U.S. 593, 597 (1972) (“For at least a quarter-century, this Court has made clear that even though a person has no ‘right’ to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are
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some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests . . . “); Bourgeois v. Peters, 387 F.3d 1303, 1324 (11th Cir. 2004) (“The doctrine of unconstitutional conditions prohibits terminating benefits, though not classified as entitlements, if the termination is based on motivations that other constitutional provisions proscribe.”) (citation omitted). Although the state argues that any tension in the law has been clarified by Rust v. Sullivan, 500 U.S. 173 (1991), that argument is unconvincing because Rust explicitly distinguished the “unconstitutional conditions” cases and did not purport to overrule Perry and its progeny. See id. at 196 (“Petitioners’ reliance on [Perry] is unavailing, however, because here the Government is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for the purposes for which they were authorized.”). This case, unlike Rust, deals directly with a denial of government benefits.
6. Finally, I am skeptical about the state’s insistence at oral argument that the Fourth Amendment permits the warrantless and suspicionless drug testing of all TANF applicants even if the evidence shows, conclusively and beyond any doubt, that there is 0% drug use in the TANF population. The state’s rationale—that such drug testing is permissible because the TANF program seeks to “move people from welfare to work”—proves too much. Every expenditure of state dollars,
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taxpayers hope, is for the purpose of achieving a desirable social goal. But that does not mean that a state is entitled to require warrantless and suspicionless drug testing of all recipients of state funds (e.g., college students receiving Bright Futures scholarships, see Fla. Stat. § 1009.53) to ensure that those funds are not being misused and that policy goals (e.g., the graduation of such students) are being achieved. Constitutionally speaking, the state’s position is simply a bridge too far.
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UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

John Ley Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
February 26, 2013

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 11-15258-DD Case Style: Luis Lebron v. Secretary, Florida Department District Court Docket No: 6:11-cv-01473-MSS-DAB

For rules and forms visit www.ca11.uscourts.gov

Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.1-1. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the CRIMINAL JUSTICE ACT must file a CJA voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for a writ of certiorari (whichever is later).
Pursuant to Fed.R.App.P. 39, costs taxed against the appellant.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Tonya L. Richardson, DD at (404) 335-6176.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Djuanna Clark Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

 
 Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 1 of 13
U.S. District Court Middle District of Florida (Orlando) CIVIL DOCKET FOR CASE #: 6:11−cv−01473−MSS−DAB

CLOSED

Lebron v. Secretary of the Florida Department of Children &Families Assigned to: Judge Mary S. Scriven Referred to: Magistrate Judge David A. Baker Case in other court: 11CCA, 11−15258−I
USCA, 14−10322 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 09/06/2011 Date Terminated: 01/02/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Luis W. Lebron Individually and as Class Representative

represented by Maria Kayanan ACLU Foundation of Florida, Inc. Suite 340 4500 Biscayne Blvd Miami, FL 33137 305−815−7131 Email: mkhellsten@gmail.com TERMINATED: 02/03/2015 LEAD ATTORNEY

Randall Challen Berg , Jr. Florida Justice Institute, Inc. 3750 Miami Tower 100 SE 2nd St Miami, FL 33131−2309 305/358−2081 Fax: 305/358−0910 Email: rberg@floridajusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Randall C. Marshall ACLU Foundation of Alabama, Inc. PO Box 6179 Montgomery, AL 36106−0179 334/265−2754 Fax: 3342695666 Email: rmarshall@aclualabama.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shawn Alex Heller Social Justice Law Collective, PL PO Box 70327 Washington, DC 20024 202−709−5744 Fax: 866−893−0416 Email: shawn@shawnheller.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jason D. Williamson American Civil Liberties Union Foundation, Inc. 18th Floor 125 Broad St New York, NY 10004−2400 212/284−7340 Fax: 212/594−2654

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 2 of 13
Email: jwilliamson@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
John J. Dingfelder Public Defender's Office − 13th Circuit 700 E Twiggs St − 4th Flr PO Box 172910 Tampa, FL 33672−0910 813/495−8838 Fax: 813/258−3242 Email: dingfelderj@pd13.state.fl.us TERMINATED: 06/11/2012
Joshua Aaron Glickman Social Justice Law Collective, PL PO Box 70327 Washington, DC 20024 202−709−5744 Fax: 866−893−0416 Email: josh@sjlawcollective.com TERMINATED: 07/09/2012
Shalini Goel Agarwal ACLU Foundation of Florida, Inc. Suite 340 4500 Biscayne Blvd Miami, FL 33137 786/363−2708 Fax: 786/363−1448 Email: sagarwal@aclufl.org ATTORNEY TO BE NOTICED

V.
Defendant
Secretary of the Florida Department of Children &Families

represented by Jason Vail Jolly Peterson &Truckenbrod, P.A. 2145 Delta Blvd Ste 200 PO Box 37400 Tallahassee, FL 32315−7400 850−422−0282 Fax: 850−422−1913 Email: ejv@jollylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Scott Tanenbaum Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/245−6536 Fax: 850/245−6127 Email: adam.tanenbaum@dos.myflorida.com ATTORNEY TO BE NOTICED
Allen Winsor Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850−414−3681 Fax: 850−410−2672

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 3 of 13
Email: allen.winsor@myfloridalegal.com ATTORNEY TO BE NOTICED
Jesse Panuccio Florida Department of Economic Opportunity 107 E Madison St Tallahassee, FL 32399−4120 850/245−7298 Fax: 850/921−3223 Email: jesse.panuccio@deo.myflorida.com TERMINATED: 03/07/2013
Lisa M. Raleigh Office of the Attorney General PL−01 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/414−3821 Fax: 850/414−9650 Email: lisa.raleigh@myfloridalegal.com ATTORNEY TO BE NOTICED
Marion Drew Parker Florida Department of Financial Services PL−11, The Capitol Tallahassee, FL 32399−0301 850−413−2898 Fax: 850−922−3947 Email: Drew_Parker@dcf.state.fl.us ATTORNEY TO BE NOTICED
Michael Sevi Executive Office of the Govenor Room 209 − The Capitol 400 S Monroe St Tallahassee, FL 32399−1050 850/717−9310 Fax: 850/488−9810 Email: michael.sevi@eog.myflorida.com TERMINATED: 11/06/2012

Date Filed 09/06/2011
09/06/2011 09/06/2011 09/06/2011 09/07/2011 09/07/2011

# Docket Text
1 COMPLAINT against Secretary of the Florida Department of Children &Families (Filing fee $ 350.00 receipt number ORL−10319) filed by Luis W. Lebron. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Civil Cover Sheet)(MAA) (Entered: 09/07/2011)
2 MOTION, and memorandum of law in support, for preliminary injunction by Luis W. Lebron. (Attachments: # 1 Exhibit)(MAA) (Entered: 09/07/2011)
3 REQUEST for oral argument re 2 MOTION for preliminary injunction by Luis W. Lebron. (MAA) (Entered: 09/07/2011)
4 Summons issued as to Secretary of the Florida Department of Children &Families. (MAA) (Entered: 09/07/2011)
5 NOTICE of Appearance by Randall Challen Berg, Jr on behalf of Luis W. Lebron (Berg, Randall) (Entered: 09/07/2011)
6 NOTICE of Appearance by Shawn A. Heller on behalf of Luis W. Lebron (Heller, Shawn) (Entered: 09/07/2011)

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 4 of 13

09/07/2011 09/07/2011 09/07/2011 09/08/2011 09/08/2011
09/08/2011 09/12/2011 09/13/2011 09/13/2011 09/13/2011 09/13/2011 09/14/2011 09/19/2011 09/19/2011
09/22/2011 09/22/2011 09/23/2011
09/23/2011

7 NOTICE of Appearance by Joshua Aaron Glickman on behalf of Luis W. Lebron (Glickman, Joshua) (Entered: 09/07/2011)
8 ORDER REGARDING MOTION FOR PRELIMINARY INJUNCTION. Signed by Judge Mary S. Scriven on 9/7/2011. (ABG) (Entered: 09/07/2011)
Set/reset deadlines as to 2 MOTION for preliminary injunction. Motion Hearing set for 9/26/2011 at 09:30 AM in Orlando Courtroom 5 B before Judge Mary S. Scriven. (SR) (Entered: 09/08/2011)
9 RETURN of service executed on 9/7/2011 as to Secretary of the Florida Department of Children &Families by Luis W. Lebron (Kayanan, Maria) Modified on 9/8/2011 (SR). (Entered: 09/08/2011)
10 RELATED CASE ORDER AND NOTICE of designation under Local Rule 3.05 − track 2.The response shall be filed within (14) days from the date of this Order. The Case Management Report shall be filed under event code "Motion for Entry of Case Management Report Scheduling Order." Signed by Judge Mary S. Scriven on 9/8/2011. (NBL) copies mailed/e−mailed (Entered: 09/08/2011)
11 INTERESTED PERSONS ORDER. The response shall be filed within (14) days from the date of this Order. Signed by Judge Mary S. Scriven on 9/8/2011. (NBL) copies mailed/e−mailed (Entered: 09/08/2011)
12 NOTICE of compliance re 8 Order by Luis W. Lebron (Kayanan, Maria) (Entered: 09/12/2011)
13 NOTICE of Appearance by Jason Vail on behalf of Secretary of the Florida Department of Children &Families (Vail, Jason) (Entered: 09/13/2011)
14 NOTICE of Appearance by Marion Drew Parker on behalf of Secretary of the Florida Department of Children &Families (Parker, Marion) (Entered: 09/13/2011)
15 NOTICE of pendency of related cases re 10 Related case order and notice of designation of track 2 per Local Rule 1.04(d) by Luis W. Lebron. Related case(s): no (Kayanan, Maria) (Entered: 09/13/2011)
16 MOTION to certify class and incorporated Memorandum of Law by Luis W. Lebron. (Berg, Randall) (Entered: 09/13/2011)
17 CERTIFICATE of interested persons and corporate disclosure statement re 11 Interested persons order by Luis W. Lebron. (Kayanan, Maria) (Entered: 09/14/2011)
18 MOTION for leave to file excess pages by All Defendants. (Vail, Jason) (Entered: 09/19/2011)
19 RESPONSE in opposition re 2 MOTION for preliminary injunction filed by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Affidavit Berner, # 2 Affidavit Duchene, # 3 Affidavit O'Brien &Ex. A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit D, # 7 Exhibit E, # 8 Exhibit F)(Vail, Jason) (Entered: 09/19/2011)
20 ENDORSED ORDER GRANTING 18 , nunc pro tunc, the Defendant's unopposed Motion to File Memorandum in Excess of 20 Pages. Signed by Judge Mary S. Scriven on 9/22/2011. (ABG) Modified on 9/23/2011 (SR). (Entered: 09/22/2011)
21 NOTICE of Appearance by Jesse Panuccio on behalf of Secretary of the Florida Department of Children &Families (Panuccio, Jesse) (Entered: 09/22/2011)
22 REPLY to response to motion re 2 MOTION for preliminary injunction filed by Luis W. Lebron. (Attachments: # 1 Exhibit DCF Presentation, # 2 Exhibit DCF Pilot Study, # 3 Exhibit Plaintiff's Supplemental Declaration, # 4 Exhibit Final House Staff Analysis, # 5 Exhibit Final Senate Staff Analysis)(Kayanan, Maria) (Entered: 09/23/2011)
23 MOTION for extension of time to file response/reply re 16 MOTION to certify class by Secretary of the Florida Department of Children &Families. (Vail, Jason) Modified on 9/26/2011 (SR). (Entered: 09/23/2011)

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09/25/2011 09/26/2011 09/27/2011 09/29/2011 09/29/2011 10/04/2011 10/10/2011 10/14/2011 10/14/2011 10/24/2011 10/25/2011 10/26/2011 11/03/2011 11/03/2011 11/04/2011
11/04/2011

24 Unopposed MOTION for leave to file additional exhibits in opposition to 2 motion for preliminary injunction by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit G, # 2 Exhibit H, # 3 Exhibit I, # 4 Exhibit J)(Panuccio, Jesse) Modified on 9/26/2011 (SR). (Entered: 09/25/2011)
25 Minute Entry. (Hearing on Plaintiff's Motion for Preliminary Injunction) Proceedings held before Judge Mary S. Scriven on 9/26/2011. Court GRANTS 24 Motion for leave to file; and Takes Under Advisement 2 Motion for preliminary injunction. Court Reporter: Koretta Stanford (NBL) (Entered: 09/26/2011)
26 MEMORANDUM regarding the Court's Authority to Provisionally Certify the Class in Support re 2 Motion for preliminary injunction filed by Luis W. Lebron. (Heller, Shawn) Modified on 9/27/2011 (SR). (Entered: 09/27/2011)
27 CERTIFICATE of interested persons &corporated disclosure statement re 11 INTERESTED PERSONS ORDER by Jason Vail on behalf of Secretary of the Florida Department of Children &Families (Vail, Jason) Modified on 9/30/2011 (IGC). (Entered: 09/29/2011)
28 MEMORANDUM in opposition re 26 Memorandum in support concerning provisional class certification filed by Secretary of the Florida Department of Children &Families. (Vail, Jason) (Entered: 09/29/2011)
29 ANSWER and affirmative defenses to 1 Complaint by Secretary of the Florida Department of Children &Families.(Vail, Jason) Modified on 10/5/2011 (IGC). (Entered: 10/04/2011)
30 RESPONSE in opposition re 16 MOTION to certify class and incorporated Memorandum of Law filed by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit A)(Raleigh, Lisa) Modified on 10/11/2011 (SR). (Entered: 10/10/2011)
31 ORDER DIRECTING the parties to file substitute exhibit. Signed by Judge Mary S. Scriven on 10/14/2011. (ABG) (Entered: 10/14/2011)
32 NOTICE of compliance re 31 Order by Luis W. Lebron (Attachments: # 1 Exhibit Evaluation Report)(Kayanan, Maria) (Entered: 10/14/2011)
33 ORDER GRANTING 2 Plaintiff's Motion for Preliminary Injunction and DENYING without prejudice 16 Plaintiff's Motion for Class Certification. Signed by Judge Mary S. Scriven on 10/24/2011. (ABG) (Entered: 10/24/2011)
34 MOTION for miscellaneous relief, specifically Joint Motion to Be Relieved From Meeting In Person for Purposes of Preparing Joint Report by Luis W. Lebron. (Kayanan, Maria) (Entered: 10/25/2011)
35 ENDORSED ORDER GRANTING 34 the parties' Joint Motion to be Relieved from Meeting in Person for Purposes of Preparing the Joint Report. The parties shall be allowed to attend the Case Management Conference telephonically. Signed by Judge Mary S. Scriven on 10/26/2011. (ABG) (Entered: 10/26/2011)
36 NOTICE OF APPEAL as to 33 Order on motion for preliminary injunctionOrder on motion to certify class by Secretary of the Florida Department of Children &Families. (Filing fee not paid) (Raleigh, Lisa) (Entered: 11/03/2011)
37 TRANSCRIPT information form filed by Secretary of the Florida Department of Children &Families for proceedings held on September 26, 2011 before Judge Mary S. Scriven re 36 Notice of appeal. (Raleigh, Lisa) (Entered: 11/03/2011)
TRANSMITTAL of initial appeal package to USCA consisting of certified copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 36 Notice of appeal. Eleventh Circuit Transcript information form forwarded to pro se litigants and available to counsel at www.flmd.uscourts.gov under Forms and Publications/General. (SR) (Entered: 11/04/2011)
38 Second MOTION to certify class by Luis W. Lebron. (Attachments: # 1 Exhibit Oct 28 DCF Revised Memo, # 2 Exhibit Oct 28 DCF counsel correspondence, # 3 Exhibit Conferral Correspondence, # 4 Exhibit Conferral Correspondence

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 6 of 13

11/07/2011 11/08/2011 11/08/2011 11/09/2011 11/09/2011 11/16/2011 11/16/2011 11/18/2011 11/29/2011 12/02/2011
12/02/2011
12/02/2011 12/07/2011 12/13/2011 12/13/2011
01/20/2012

Response)(Kayanan, Maria) (Entered: 11/04/2011)
USCA appeal fees received $ 455.00 receipt number ORL−12060 re 36 Notice of appeal filed by Secretary of the Florida Department of Children &Families. (MAA) (Entered: 11/08/2011)
TRANSMITTAL to USCA forwarding Notification of Fee Payment re 36 Notice of appeal. (MAA) (Entered: 11/08/2011)
39 NOTICE of Appearance by Shalini Goel Agarwal on behalf of Luis W. Lebron (Agarwal, Shalini) (Entered: 11/08/2011)
40 ORDER DIRECTING the State to file a response to the Renewed Motion for Class Certification on or before Wednesday, November 16, 2011. Signed by Judge Mary S. Scriven on 11/9/2011. (ABG) (Entered: 11/09/2011)
Set/reset deadlines as to 38 Second MOTION to certify class. Responses due by 11/16/2011 (SR) (Entered: 11/10/2011)
41 NOTICE of supplemental authority re 38 Second MOTION to certify class by Luis W. Lebron (Attachments: # 1 Exhibit Order in W.D. Missouri)(Kayanan, Maria) (Entered: 11/16/2011)
42 RESPONSE in opposition re 38 Second MOTION to certify class filed by Secretary of the Florida Department of Children &Families. (Panuccio, Jesse) (Entered: 11/16/2011)
43 CASE MANAGEMENT REPORT. (Panuccio, Jesse) Modified on 11/21/2011 (SR). (Entered: 11/18/2011)
44 COURT REPORTER ACKNOWLEDGMENT by Koretta Stanford re 36 Notice of appeal Estimated transcript filing date: 12/2/2011. (KS) (Entered: 11/29/2011)
45 TRANSCRIPT of Preliminary Injunction Hearing held on 09/26/2011 before Judge Mary S. Scriven re 36 Notice of appeal. Court Reporter/Transcriber Koretta Stanford, Telephone number 407−872−1715. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER or purchased through the Court Reporter. Redaction Request due 12/23/2011, Redacted Transcript Deadline set for 1/3/2012, Release of Transcript Restriction set for 3/1/2012. (KS) (Entered: 12/02/2011)
46 NOTICE to counsel of filing of OFFICIAL TRANSCRIPT, doc. 45. The parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days. Any party needing a copy of the transcript to review for redaction purposes may purchase a copy from the court reporter or view the document at the clerk's office public terminal. Court Reporter: Koretta Stanford (KS) (Entered: 12/02/2011)
47 NOTIFICATION that transcript has been filed by Koretta Stanford re: 36 Notice of appeal USCA number: 11−15258−I (KS) (Entered: 12/02/2011)
48 ORDER GRANTING 38 Plaintiff's Renewed Motion for Class Certification. Signed by Judge Mary S. Scriven on 12/7/2011. (ABG) (Entered: 12/07/2011)
49 CASE MANAGEMENT AND SCHEDULING ORDER. Signed by Judge Mary S. Scriven on 12/13/2011. (ABG) (Entered: 12/13/2011)
Set/reset scheduling order deadlines: Amended Pleadings due by 2/6/2012, Joinder of Parties due by 2/6/2012, Discovery due by 5/16/2012, Dispositive motions due by 6/15/2012, Pretrial statement due by 10/25/2012, All other motions due by 10/29/2012, Bench Trial set for 12/3/2012 at 08:30 AM before Judge Mary S. Scriven., Defendant disclosure of expert report due by 4/16/2012, Plaintiff disclosure of expert report due by 3/16/2012 (SR) (Entered: 12/14/2011)
50 JOINT MOTION for clarification of 49 Scheduling Order by All Parties. (Raleigh, Lisa) Modified on 1/23/2012 (SR). (Entered: 01/20/2012)

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 7 of 13

01/24/2012
02/07/2012 02/29/2012 03/12/2012 04/26/2012 05/10/2012 05/14/2012
05/15/2012 05/15/2012 05/18/2012
05/18/2012
05/21/2012
05/29/2012 06/11/2012

51 ENDORSED ORDER GRANTING 50 Joint Motion for Clarification of Scheduling Order. Parties are not required to attend mediation or any other alternative dispute resolution until further order of this Court. The form language to the contrary does not apply to this case at this time. Signed by Judge Mary S. Scriven on 1/24/2012. (APV) (Entered: 01/24/2012)
52 NOTICE of Appearance by Michael Sevi on behalf of Secretary of the Florida Department of Children &Families (Sevi, Michael) (Entered: 02/07/2012)
53 CERTIFICATE of readiness AND RECORD ON APPEALsent to USCA re: 36 Notice of appeal. ROA consists of: volume of pleadings: 4 volume of transcripts: 1 USCA number: 11−15258−DD (VEF) (Entered: 02/29/2012)
ACKNOWLEDGMENT by USCA of receiving COA &ROA on 3/5/12 re 36 Notice of appeal. USCA number: 11−15258−DD. (MAA) (Entered: 03/13/2012)
54 MOTION in limine regarding State's Expert Report of D. Mark Wilson by Luis W. Lebron. (Attachments: # 1 Exhibit Defendant's Rule 26(a)(2) Disclosures of D. Mark Wilson, # 2 Exhibit Order in Case No. 11−cv−21976−UU (S.D. Fla. April 26, 2012))(Kayanan, Maria) (Entered: 04/26/2012)
55 RESPONSE in opposition re 54 MOTION in limine regarding State's Expert Report of D. Mark Wilson filed by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit A)(Panuccio, Jesse) (Entered: 05/10/2012)
56 Joint MOTION to amend 49 Case Management and Scheduling Order and Incorporated Memorandum of Law by Luis W. Lebron and Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit Notice of Oral Argument 11th Circuit, # 2 Exhibit Defendant's Supplemental Response to Plaintiff's first Request for Production of Documents)(Kayanan, Maria) Modified on 5/16/2012 (CH). (Entered: 05/14/2012)
57 MOTION to extend time to DISCLOSE REBUTTAL EXPERT WITNESSES by Luis W. Lebron. (Heller, Shawn) Motions referred to Magistrate Judge David A. Baker. (Entered: 05/15/2012)
58 NOTICE of Appearance of Additional Counsel for Defendant Appearance by Allen Winsor on behalf of Secretary of the Florida Department of Children &Families (Winsor, Allen) (Entered: 05/15/2012)
59 ENDORSED ORDER GRANTING 56 Joint Motion to Amend Scheduling Order and GRANTING 57 Plaintiff's Motion for Extension of Time to Disclose Rebuttal Expert Witnesses. See Amended Case Management Scheduling Order being entered simultaneously. Signed by Judge Mary S. Scriven on 5/18/2012. (APV) (Entered: 05/18/2012)
60 AMENDED CASE MANAGEMENT AND SCHEDULING ORDER: Disclosure of Plaintiff's Rebuttal Expert Witness as it relates to Dr. Avram Mack due by June 25, 2012, Discovery due by 7/31/2012, Dispositive motions due by 8/31/2012, Pretrial statement due by 1/18/2013, All other motions due by 1/25/2013, Bench Trial set for the March 2013 trial term, which commences on 3/4/2013 before Judge Mary S. Scriven. Signed by Judge Mary S. Scriven on 5/18/2012. (APV) (Entered: 05/18/2012)
61 ENDORSED ORDER DENYING 54 Plaintiff's Motion in Limine to Exclude Defendant's Expert Report of D. Mark Wilson and to Expedite Briefing. Upon consideration of the relevant filings and being otherwise fully advised, the Court orders that the Motion in Limine 54 is DENIED. This Order is without prejudice to Plaintiff's right to seek to exclude the expert upon full discovery of his opinions. Signed by Judge Mary S. Scriven on 5/21/2012. (SL) (Entered: 05/21/2012)
62 Consent MOTION for John Dingfelder to withdraw as attorney by Luis W. Lebron. (Kayanan, Maria) (Entered: 05/29/2012)
63 ORDER GRANTING 62 Motion to Withdraw as Counsel. Signed by Judge Mary S. Scriven on 6/11/2012. (SL) (Entered: 06/11/2012)

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 8 of 13

07/03/2012 07/06/2012 07/11/2012 07/12/2012
07/13/2012 07/30/2012 07/31/2012
08/09/2012 08/09/2012
08/21/2012 08/23/2012
08/24/2012 09/05/2012

64 Unopposed MOTION for Joshua A. Glickman to withdraw as attorney by Luis W. Lebron. (Glickman, Joshua) (Entered: 07/03/2012)
65 ORDER GRANTING 64 Motion to Withdraw as Attorney. Signed by Judge Mary S. Scriven on 7/6/2012. (SL) (Entered: 07/06/2012)
66 MOTION for Jason Williamson to appear pro hac vice by Luis W. Lebron. (Attachments: # 1 Exhibit Attorney Certification)(Kayanan, Maria) Motions referred to Magistrate Judge David A. Baker. (Entered: 07/11/2012)
67 ENDORSED ORDER granting 66 motion to appear pro hac vice. Provided, all counsel shall register for and use the electronic filing system as adopted by the Court. After this Order, the Clerk will no longer send copies of docket entries by U.S. Mail to counsel in this case. Appearance and participation by more than one attorney at any hearing or trial is subject to the discretion of the presiding judge. Signed by Magistrate Judge David A. Baker on 7/12/2012. (Baker, David) (Entered: 07/12/2012)
***PRO HAC VICE FEES paid and Special Admission Attorney Certification Form filed by attorney Jason Williamson appearing on behalf of Luis W. Lebron (Filing fee $10.00 receipt number ORL−18397.) Related document: 66 MOTION for Jason Williamson to appear pro hac vice. (MAA) (Entered: 07/13/2012)
68 Joint MOTION for leave to file Summary Judgment Motion in excess of the page limits by Luis W. Lebron and Secretary of the Florida Department of Children &Families. (Kayanan, Maria) Modified on 7/31/2012 (CH). (Entered: 07/30/2012)
69 ENDORSED ORDER GRANTING 68 Joint Motion for Advance Leave to File Summary Judgment Documents in Excess of Page Limits Set By Local Rules and Scheduling Order. The parties may file summary judgment motions not to exceed thirty−five (35) pages. Responses to summary judgment motions shall not exceed thirty (30) pages. Replies in support of summary judgment motions shall not exceed fifteen (15) pages. Signed by Judge Mary S. Scriven on 7/31/2012. (SL) (Entered: 07/31/2012)
70 Second MOTION in limine regarding State's Expert D. Mark Wilson by Luis W. Lebron. (Attachments: # 1 Exhibit Expert Witness Disclosure and Report of D. Mark Wilson, # 2 Exhibit Deposition of D. Mark Wilson, # 3 Exhibit CV of D. Mark Wilson, # 4 Exhibit Subpoena to Walt Disney World)(Kayanan, Maria) (Entered: 08/09/2012)
71 First MOTION in limine regarding State's Expert Witness Avram Mack, M.D. by Luis W. Lebron. (Attachments: # 1 Exhibit Expert Witness Disclosure and Report of Avram Mack, M.D., # 2 Exhibit Deposition of Avram Mack, M.D., # 3 Exhibit Terms Used by Avram Mack, M.D., # 4 Exhibit Invoices for Expert Witness Fees, # 5 Exhibit 15th Statewide Florida Grand Jury Report, # 6 Exhibit ASPE brief)(Kayanan, Maria) (Entered: 08/09/2012)
72 Consent MOTION for extension of time to file response to Motion in Limine, to extend dispositive motion deadline, and request for expedited treatment by Secretary of the Florida Department of Children &Families. (Winsor, Allen) Modified on 8/22/2012 (CH). Mo (Entered: 08/21/2012)
73 ENDORSED ORDER GRANTING 72 Defendant's Consented Motion for Ten−Day Extension of Pending Deadlines. Defendant shall have up to and including September 6, 2012 to respond to Plaintiff's motions in limine. The parties shall have up to and including September 10, 2012 to file their respective summary judgment motions. These extensions do not affect any other deadlines in this case. Signed by Judge Mary S. Scriven on 8/23/2012. (SL) (Entered: 08/23/2012)
Set/reset deadlines as to 70 Second MOTION in limine regarding State's Expert D. Mark Wilson, 71 First MOTION in limine regarding State's Expert Witness Avram Mack, M.D.. Responses due by 9/6/2012 (CH) (Entered: 08/24/2012)
74 NOTICE of Filing Errata Sheet re 71 First MOTION in limine regarding State's Expert Witness Avram Mack, M.D. (Attachments: # 1 Errata Errata Sheet to Dkt. 71−2) by Luis W. Lebron (Kayanan, Maria) Modified on 9/6/2012 (CH). (Entered: 09/05/2012)

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 9 of 13

09/06/2012 09/06/2012 09/10/2012 09/10/2012

75 RESPONSE in opposition re 70 Second MOTION in limine regarding State's Expert D. Mark Wilson filed by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 09/06/2012)
76 RESPONSE in opposition re 71 First MOTION in limine regarding State's Expert Witness Avram Mack, M.D. filed by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit A − Mack Declaration, # 2 Exhibit B − Pts ROG Resp.)(Winsor, Allen) (Entered: 09/06/2012)
77 STIPULATION of Undisputed Facts for Summary Judgment Motions re 60 Case management and scheduling order by Luis W. Lebron and David E. Wilkins. (Kayanan, Maria) Modified on 9/11/2012 (CH). (Entered: 09/10/2012)
78 MOTION for summary judgment by Luis W. Lebron. (Attachments: # 1 Exhibit Chart of Plaintiffs' Exhibits, # 2 Affidavit A.Declaration of Maria Kayanan re: Email Exhibits, # 3 Exhibit 1.HB 353 original bill, # 4 Exhibit 2.Governor Scotts press release on campaign promise to drug test welfare applicants, # 5 Exhibit 3.Governor Scotts proposed drug testing legislation, # 6 Exhibit 4.DCF Staff Analysis of HB 353 2/2/11, # 7 Exhibit 5.DCF email response to HB 353 Analysis 2/4/11, # 8 Exhibit 6.DCF Staff Analysis and Economic Impact of HB 353 2/8/11, # 9 Exhibit 7.DCF Staff Analysis and Economic Impact of HB 353 3/8/11, # 10 Exhibit 8.DCF Fiscal Note for HB 353 3/7/11, # 11 Exhibit 9.DCF email re: Fiscal Impact 3/28/11, # 12 Exhibit 10.DCF Committee Substitute Analysis for HB 353 3/30/11, # 13 Exhibit 11.DCF email re: Estimates for drug testing reimbursement 4/14/11, # 14 Exhibit 12.DCF Staff Analysis and Economic Impact of HB 353 6/1/11, # 15 Exhibit 13.Rep. Smiths Press Release on HB 353 4/26/11, # 16 Exhibit 14.Rep. Drakes Press Release on HB 353 4/27/11, # 17 Exhibit 15.Rep. Kreegels and Rep. Baxleys statements on HB 353 4/14/11, # 18 Exhibit 16.Demonstration Project Historical Documents 12/24/98, # 19 Exhibit 17.Meeting Summary for Demonstration Project 11/19/98, # 20 Exhibit 18.Demonstration Project Historical Documents 4/29/99, # 21 Exhibit 19.DCF Analysts email re: Legislatures disregard of Demonstration Project 10/25/12, # 22 Exhibit 20.DCF email re: no additional studies from Demonstration Project 2/7/11, # 23 Exhibit 21.Deposition of Mike Carroll 7/26/12, # 24 Exhibit 22.DCF email re: Abuse Hotline referrals 5/17/11, # 25 Exhibit 23.DCF email re: Abuse Hotline referrals various dates, # 26 Exhibit 24.DCF email re: Abuse Hotline referrals 6/6/11, # 27 Exhibit 25.DCF email re: Abuse Hotline referrals 6/6/11, # 28 Exhibit 26.DCF email re: Abuse Hotline referrals 6/7/11, # 29 Exhibit 27.Letter to DCF from Floridas Children First re: Abuse Hotline referrals 7/6/11, # 30 Exhibit 28.Child Welfare Advocates Email to DCF re: drug testing and child welfare 1/18/12, # 31 Exhibit 29.DCF spreadsheet re: Abuse Hotline referrals as of 2/15/12, # 32 Exhibit 30.DCF spreadsheet re: Abuse Hotline referrals and PNA investigations through 9/14/11, # 33 Exhibit 31.Defendants Answers to Plaintiffs Second Set of Interrogatories, # 34 Exhibit 32.DCF Questions and Answers re: drug testing program training, # 35 Exhibit 33.DCF emails re: additional drug testing program training 8/31/11, 9/1/11, # 36 Exhibit 34.DCF emails re: no training needed to stop testing 10/10/11, 10/12/11, # 37 Exhibit 35.Excerpt from Deposition of Jeri Flora 6/27/12, # 38 Exhibit 36.DCF emails re: reviews of application results 8/15/11−8/15/11, 9/30/11, # 39 Exhibit 37.DCF email re: labs pulling out of testing program 7/1/11, # 40 Exhibit 38.DCF email re: labs demanding chain of custody forms 7/12/11, 7/14/11, 8/12/11, # 41 Exhibit 39.DCF email re: approved lab not ready 10/4/11, # 42 Exhibit 40.DCF email re: premature referrals to labs 9/21/11, # 43 Exhibit 41.DCF email re: labs requiring prepayment online with credit card, # 44 Exhibit 42.Excerpt from Deposition of Jeff Cece and Ex. 16 to that deposition 6/26/12 and 8/16/11, # 45 Exhibit 43.DCF email re: Monroe Countys lack of labs 7/13/11, # 46 Exhibit 44.DCF email re: no funds for transportation 7/13/11, # 47 Exhibit 45.DCF emails re: labs out−of−state analyses and reviews 8/15/11, 10/13/11, 10/18/11, # 48 Exhibit 46.DCF email re: results not given to donors 9/21/11, # 49 Exhibit 47.DCF emails re: lab results faxed to wrong locations 9/28/11−9/30−11, # 50 Exhibit 48.DCF email re: thousands of pages of faxes of lab results 9/7/11, # 51 Exhibit 49.DCF email re: lab results to be emailed 9/20/11, # 52 Exhibit 50.DCF email re: misplaced results with applicants information 9/22/11, # 53 Exhibit 51.DCF email re: lab representative going to applicants home to collect urine sample 8/10/11, # 54 Exhibit 52.DCF emails re: dialysis patients and urinary catheters 9/13/11, # 55 Affidavit 53.Declaration of Luis W. Lebron

Case: 6:11-cv-1473 As of: 02/24/2016 11:16 PM EST 10 of 13

09/10/2012
09/24/2012
10/11/2012 10/15/2012 10/15/2012 11/01/2012 11/01/2012 11/05/2012 11/06/2012 12/17/2012

8/15/12, # 56 Exhibit 54.DCF Spreadsheet of MRO results as of 10/31/11, # 57 Exhibit 55.Drug testing policy of Plaintiffs employer, # 58 Exhibit 56.Deposition of Linda Phinney 6/20/12, # 59 Exhibit 57.DCF spreadsheet reflecting restoration of benefits 11/17/11, # 60 Exhibit 58.DCF spreadsheet of TANF approval rates)(Kayanan, Maria) (Entered: 09/10/2012)
79 MOTION for summary judgment by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Exhibit 1 − Carroll Depo., # 2 Exhibit 2 − Ferguson Depo., # 3 Exhibit 3 − Phinney Depo., # 4 Exhibit 4 − Digre Decl., # 5 Exhibit 5 − Lebron Redacted Depo., # 6 Exhibit 5A − Ex. 7 to Lebron Depo. (Redacted), # 7 Exhibit 5B − Ex. 8 to Lebron Depo., # 8 Exhibit 5C − Ex. 9 to Lebron Depo. (Redacted), # 9 Exhibit 5D − Ex. 10 to Lebron Depo. (Redacted), # 10 Exhibit 5E − Ex. 11 to Lebron Depo. (Redacted), # 11 Exhibit 6 − Carroll Decl., # 12 Exhibit 7 − Mack Decl., # 13 Exhibit 8 − Brown Decl., # 14 Exhibit 9 − Wasserman Decl., # 15 Exhibit 10 − Graham Decl., # 16 Exhibit 11 − Wilson Decl., # 17 Exhibit 12 − Lebron 1st ROG Responses (Redacted))(Winsor, Allen) (Entered: 09/10/2012)
80 MOTION in limine regarding Dkts. 79−13 through 79−15 by Luis W. Lebron. (Attachments: # 1 Exhibit DCF matching exercise Dkt. 79−13 at 5, # 2 Exhibit Plaintiffs First Set of Requests for Admissions, # 3 Exhibit Defendants Objections and Responses to Plaintiffs First Set of Requests For Admission, # 4 Exhibit Plaintiffs First Set of Requests for Production, # 5 Exhibit Defendants Objections and Reponses to Plaintiffs First Set of Requests For Production of Documents, # 6 Exhibit Defendants Supplemental Response to Plaintiffs First Request For Production of Documents, # 7 Exhibit Deposition of Ms. Jerilyn Flora, # 8 Exhibit Deposition of Mr. Jeffrey Cece, # 9 Exhibit Deposition of Ms. Pat Brown, # 10 Exhibit Deposition of Mr. Justin Graham, # 11 Exhibit Deposition of Mr. Adam Wasserman, # 12 Exhibit DCF emails marked Jun26 0000001−20, # 13 Exhibit DCF emails marked DCF−Emails−000001−56 Lebron)(Kayanan, Maria) (Entered: 09/24/2012)
81 RESPONSE to motion re 80 MOTION in limine regarding Dkts. 79−13 through 79−15 filed by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 10/11/2012)
82 RESPONSE in opposition re 79 MOTION for summary judgment filed by Luis W. Lebron. (Attachments: # 1 Exhibit 1.11th Circuit Order Denying Reconsideration of Order Striking DCFs Initial Brief, # 2 Exhibit 2.Chart of 2011−2012 State Laws on Drug Testing TANF Applicants, # 3 Exhibit Ex. 22 to Justin Graham deposition, # 4 Exhibit 3.Plaintiffs Objections to Contention Interrogatories and Requests for Admissions)(Kayanan, Maria) (Entered: 10/15/2012)
83 MEMORANDUM in opposition re 78 Motion for summary judgment filed by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 10/15/2012)
84 REPLY to response to motion re 78 MOTION for summary judgment filed by Luis W. Lebron. (Attachments: # 1 Exhibit DCF Notice of Filing Evaluation Report, # 2 Exhibit DCF counsel emails re: Evaluation Report Filed, # 3 Exhibit Chart of Evidentiary Responses, # 4 Exhibit DCF emails re: dialysis policy)(Kayanan, Maria) (Entered: 11/01/2012)
85 REPLY to response to motion re 79 MOTION for summary judgment filed by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 11/01/2012)
86 Unopposed MOTION for Michael Sevi to withdraw as attorney for Defendant by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Text of Proposed Order)(Sevi, Michael) (Entered: 11/05/2012)
87 ORDER granting 86 Motion to withdraw as attorney. Signed by Judge Mary S. Scriven on 11/6/2012. (SL) (Entered: 11/06/2012)
88 Joint MOTION for miscellaneous relief, specifically Telephonic Status Conf. by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 12/17/2012)

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12/20/2012 01/30/2013 02/25/2013
02/26/2013 03/06/2013 03/07/2013 03/20/2013 05/07/2013 05/08/2013 05/21/2013 05/22/2013 09/30/2013
09/30/2013
12/31/2013 01/02/2014 01/10/2014

89 ORDER DENYING 88 Joint Motion for Telephonic Status Conference; and STAYING pre−trial deadlines. Signed by Judge Mary S. Scriven on 12/20/2012. (SL) (Entered: 12/20/2012)
90 NOTICE of change of address by Allen Winsor (Winsor, Allen) (Entered: 01/30/2013)
91 ENDORSED SUA SPONTE ORDER: The Court has taken the parties' motions for summary judgment under advisement; and therefore deems it necessary to STAY the trial in this matter. In the event the matter is not resolved on summary judgment, the Court will enter a scheduling order sua sponte. Signed by Judge Mary S. Scriven on 2/25/2013. (APV) (Entered: 02/25/2013)
92 OPINION of USCA as to 36 Notice of appeal filed by Secretary of the Florida Department of Children &Families. EOD: 2/26/13; Mandate to issue at a later date. USCA number: 11−15258−DD. AFFIRMED. (LAK) (Entered: 02/26/2013)
93 Unopposed MOTION for J. Panuccio to withdraw as attorney by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 03/06/2013)
94 ORDER granting 93 Motion to Withdraw as Attorney. Signed by Judge Mary S. Scriven on 3/7/2013. (SL) (Entered: 03/07/2013)
95 Unopposed MOTION to supplement Stipulated Facts (Doc 77 ). by Secretary of the Florida Department of Children &Families. (Attachments: # 1 Supplement (Supplemental Stipulation))(Winsor, Allen) Modified on 3/21/2013 (AA). (Entered: 03/20/2013)
96 USCA judgment as to 36 Notice of appeal filed by Secretary of the Florida Department of Children &Families. Issued as Mandate on 5/7/13. USCA number: 11−15258. Re: 92 Opinion. AFFIRMED. (LAK) (Entered: 05/08/2013)
97 ORDER for Parties to advise this Court whether additional issues need to be addressed. Signed by Judge Mary S. Scriven on 5/8/2013. (SL) (Entered: 05/08/2013)
98 RESPONSE re 97 Order of May 8 2013 filed by Luis W. Lebron. (Kayanan, Maria) (Entered: 05/21/2013)
99 RESPONSE re 97 Order (Response to 5/8/13 Order) filed by Secretary of the Florida Department of Children &Families. (Winsor, Allen) (Entered: 05/22/2013)
100 ORDER TAKING UNDER ADVISEMENT 70 Motion in Limine; TAKING UNDER ADVISEMENT 71 Motion in Limine; TAKING UNDER ADVISEMENT 78 Motion for summary judgment; TAKING UNDER ADVISEMENT 79 Motion for summary judgment; TAKING UNDER ADVISEMENT 80 Motion in Limine. Signed by Judge Mary S. Scriven on 9/30/2013. (PAB) (Entered: 09/30/2013)
101 ORDER taking under advisement 70 Motion in Limine; taking under advisement 71 Motion in Limine; taking under advisement 78 Motion for summary judgment; taking under advisement 79 Motion for summary judgment; taking under advisement 80 Motion in Limine. Signed by Judge Mary S. Scriven on 9/30/2013. (AG) (Entered: 09/30/2013)
102 ORDER granting 78 Motion for summary judgment; denying 79 Motion for summary judgment. The Clerk is DIRECTED to ENTER judgment in favor of the Plaintiff, TERMINATE any pending motions, and CLOSE this case. Signed by Judge Mary S. Scriven on 12/31/2013. (ESG) (Entered: 12/31/2013)
103 JUDGMENT is entered in favor of thePlaintiff, Luis W. Lebron, Individually and as Class Representative, and against theDefendant, Secretary of the Florida Department of Children &Families. (Signed by Deputy Clerk) (MAA) (Entered: 01/02/2014)
104 Unopposed MOTION to extend time to as specified in motion for filing and consideration of attorneys' fees, litigation expenses and Bill of Costs by Luis W. Lebron. (Attachments: # 1 Exhibit Remand of Fees from 11th Circuit)(Kayanan, Maria) Motions referred to Magistrate Judge David A. Baker. (Entered:

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01/10/2014 01/23/2014 01/24/2014 01/31/2014 01/31/2014 02/14/2014 02/18/2014 03/07/2014 12/03/2014 01/30/2015 02/03/2015
02/18/2015 02/20/2015
02/23/2015

01/10/2014)
105 ORDER granting in part 104 Motion to extend time to file motion for attorney fees, expenses, and bill of costs. The deadline is extended 90 days or until 21 days after the mandate issues, if there is another appeal. Signed by Magistrate Judge David A. Baker on 1/10/2014. (LAK) (Entered: 01/10/2014)
106 NOTICE OF APPEAL as to 103 Judgment by Secretary of the Florida Department of Children &Families. Filing fee not paid. (Raleigh, Lisa) (Entered: 01/23/2014)
107 TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCA re 106 Notice of appeal. (RDO) (Entered: 01/24/2014)
USCA appeal fees received $505, receipt number ORL−31307, re 106 Notice of appeal filed by Secretary of the Florida Department of Children &Families. (MAA) (Entered: 01/31/2014)
TRANSMITTAL to USCA forwarding fee payment information re 106 Notice of appeal USCA number: 14−10322. (MAA) (Entered: 01/31/2014)
108 TRANSCRIPT information form filed by Secretary of the Florida Department of Children &Families re 106 Notice of appeal. USCA number: 14−10322. (Raleigh, Lisa) (Entered: 02/14/2014)
Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Middle District of Florida certifies that the record is complete for the purposes of this appeal re: 106 Notice of appeal. All documents are imaged and available for the USCA to retrieve electronically. USCA number: 14−10322 (MAA) (Entered: 02/18/2014)
109 NOTICE of Appearance by Adam Scott Tanenbaum on behalf of Secretary of the Florida Department of Children &Families (Tanenbaum, Adam) (Entered: 03/07/2014)
110 OPINION/ORDER of USCA as to 106 Notice of appeal filed by Secretary of the Florida Department of Children &Families. EOD: 12/3/14; Mandate to issue at a later date. USCA number: 14−10322. AFFIRMED. (LAK) (Entered: 12/04/2014)
111 Unopposed MOTION for Maria Kayanan to withdraw as attorney by Luis W. Lebron. (Kayanan, Maria) (Entered: 01/30/2015)
112 ENDORSED ORDER GRANTING 111 Plaintiff's counsel's Unopposed Motion to Withdraw. The CLERK is DIRECTED to TERMINATE Maria Kayanan as counsel for Plaintiff, remove her name from the CM/ECF service list for this case, and to discontinue sending pleadings and Orders to her in connection with this matter. Signed by Judge Mary S. Scriven on 2/3/2015. (PAB) (Entered: 02/03/2015)
113 USCA judgment as to 106 Notice of appeal filed by Secretary of the Florida Department of Children &Families Entered on docket 2/18/15. Issued as Mandate on: 2/18/15 USCA number: 14−10322. Re: 110 Opinion. AFFIRMED. (LAK) (Entered: 02/19/2015)
114 Unopposed MOTION to stay or abate for 30 days the filing of Plaintiffs' Motion for Attorneys' Fees and Expenses; re 105 Order by Luis W. Lebron. (Attachments: # 1 Exhibit A − Order from the 11th Circuit Transferring Appellate Fees for PI Appeal to District Court# 2 Exhibit B − Order from 11th Circuit transferring issue of appellate fees for the Final Order appeal to District Court)(Berg, Randall) Modified on 2/23/2015 (LAK). (Entered: 02/20/2015)
115 ENDORSED ORDER GRANTING 114 Plaintiffs' Unopposed Motion to Stay or Abate Filing and Consideration of Plaintiffs' Motion for Attorneys' Fees and Expenses. The deadline for the filing of Plaintiffs' motion for attorneys' fees, litigation expenses, and bill of costs is STAYED. Once all appellate review is finally resolved, the Parties shall file a joint Notice informing the Court of the completion of appellate review. Plaintiffs' Motion for Attorneys' Fees and Costs will be due within thirty (30) days of the filing of said Notice. Signed by Judge Mary S. Scriven on 2/23/2015. (PAB) (Entered: 02/23/2015)

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03/09/2015 04/03/2015 04/06/2015
06/05/2015 06/08/2015 06/09/2015
06/18/2015

116 JOINT NOTICE that Certiorari Was Not Sought filed by all parties. (Berg, Randall) Modified on 3/10/2015 (RDO). (Entered: 03/09/2015)
117 Unopposed MOTION for Extension of Time to 6/5/15 to File Plaintiffs' Motion for Attorneys' Fees and Expenses by Luis W. Lebron. (Berg, Randall) Modified on 4/6/2015 (MAA). (Entered: 04/03/2015)
118 ENDORSED ORDER GRANTING 117 Plaintiff's Unopposed Motion for Enlargement of Time to File Motion for Attorneys' Fees and Expenses. In light of the ongoing fee negotiations between the parties, Plaintiff shall have up to and including June 5, 2015 to file his motion for attorneys' fees and costs. Signed by Judge Mary S. Scriven on 4/6/2015. (PAB) (Entered: 04/06/2015)
119 Consent MOTION to extend time until 8/5/15 to File Plaintiffs' Motion for Attorneys' Fees and Expenses by Luis W. Lebron. (Berg, Randall) Motions referred to Magistrate Judge David A. Baker. Text modified on 6/8/2015 (RDO). (Entered: 06/05/2015)
120 ENDORSED ORDER denying without prejudice 119 Motion to extend time. There have already been several extensions and no justification is provided for yet another lengthy delay. Signed by Magistrate Judge David A. Baker on 6/8/2015. (Baker, David) (Entered: 06/08/2015)
121 SECOND CONSENT MOTION to extend time to July 15, 2015 to File Plaintiffs' Motion for Attorneys' Fees and Expenses by Luis W. Lebron. (Attachments: # 1 Exhibit A −− Settlement Agreement and Release)(Berg, Randall) Motions referred to Magistrate Judge David A. Baker. Text modified on 6/10/2015 (RDO). (Entered: 06/09/2015)
122 NOTICE of withdrawal of motion by Luis W. Lebron (Berg, Randall) (Entered: 06/18/2015)